Chap. 415. —An ACT to amend and re-enact sections 1738, 1743, 1749, 1750, 1771,
1774, and 1781 of the Code of Virginia. [LH B 492]

Approved March 22, 1920.

1. Be it enacted by the general assembly of Virginia, That sections
seventeen hundred and thirty-eight, seventeen hundred and forty-three,
seventeen hundred and forty-nine, seventeen hundred and fifty, seven-
teen hundred and seventy-one, seventeen hundred and seventy-four.
and seventeen hundred and eighty-one of the Code of Virginia be
amended and re-enacted so as to read as follows:

Sec. 1738. Petitions; bonds; board of viewers. — Whenever a
petition, signed by two-thirds of the land owners in a proposed drain-
age district, which will be affected by or assessed for the expense of
the proposed improvements, shall be filed in the office of the clerk
of the circuit court of any county in which a part of said lands are
located, setting forth that any specific body or district of land in the
county and adjoining counties, described in such a way as to convey
an intelligent idea as to the location of such land, is subject to overflow
or too wet for cultivation, or in need of drainage, and the public bene-
fit or utility, or the public health, convenience or welfare, will be pro-
moted by draining, ditching or leveeing the same, or by changing or
improving the natural water course; and setting forth therein, as
far as practicable, the starting point, route and terminus and lateral
branches, if necessary, of the proposed improvement ; and there is filed
therewith a bond in such amount as the clerk of the circuit court of
said county may approve, signed by two or more sureties or by some
lawful and authorized surety company, to be also approved by the
said clerk, and conditioned for the payment of all costs and expenses
incurred in the proceedings in case the court does not grant the prayer
of said petition, the said clerk shall issue a summons, to be served on
all the defendant land owners, including any railroad company who
have not joined in the petition and whose lands are included in the
proposed drainage district. The summons may be served by publication
as to any defendants who cannot be personally served as provided by
law. Said summons shall be returnable to the first day of a regular
term of the circuit court of said county, during which term, or some
succeeding term, the said court shall appoint two disinterested resi-
dent freeholders of the counties in which said lands are located and
a disinterested and competent drainage engineer as a board of viewers
to examine the lands described in the petition, and make a preliminary
report thereon. Vacancies occurring in the board of viewers shall be
filled by the court, or by the judge thereof in vacation as soon as
possible after their occurrence. The compensation for the services of
such engineer and his necessary assistants, and of the other members
of the board of viewers, to be fixed as herein provided, shall be paid
preliminarily by the county treasurer upon certificate of the circuit
judge; said sum or sums so paid to be refunded when the drainage
fund is subsequently provided for by the sale of bonds or otherwise,
or out of the bond given by the petitioners in case the district is not
established.

If three-fourths of the land owners in any wet, swamp or over-
flowed lands petition the court for a drainage district based on the
widening, deepening, cleaning or straightening, of such natural streams
only as the United States government or the State drainage authorities
pronounce as essential for the drainage of such lands, and agree in
said petition to a tax levy for such draining, spread equally over each
acre, then the court shall entertain such petition and all proceedings
shall be in accordance with the provisions of this chapter, except that
the viewers shall not classify the lands as to the benefits derived
Furthermore, in any case where it is made to appear, after the said
natural stream has been widened, reopened, cleaned out or straightened.
that two-thirds of the land owners of any district, formed under the
provisions of this paragraph of this section, desire that such district
be divided into sub-districts, the court may, in its discretion, so order.

Sec. 1743. Examination; preliminary report—The board of view-
ers shall proceed to examine the land described in said petition and
other land, if necessary, to locate properly such improvement or im-
provements as are petitioned for, along the route described in petition,
or any other route answering the same purpose, if found more prac-
ticable or feasible, unless, previously surveyed by United States or
State engineers, and may run levels such as may be necessary to deter-
mine the elevation of the several parts of the district, and shall make
and return to the clerk of the circuit court within sixty days, unless,
either before or after the expiration of the said sixty days, the time
shall be extended by the court, or the judge thereof in vacation, a
written report, which shall set forth: ,

(a) Whether the proposed drainage is practicable or not ;

(b) Whether it will benefit the public health or any public high-
way or be conducive to the general welfare of the community ;

(c) Whether the improvement proposed will benefit the lands
sought to be benefited ;

(d) Whether or not all the lands that are benefited are included
in the proposed drainage district ; and naming the owners thereof and
the approximate acreage of each which they estimate will be affected.

They shall also file with this report a map of the proposed drainage
district, showing the location of the ditch or ditches or other improve-
ment to be constructed and the lands that will be affected thereby,
and such other information as they may have collected that will tend
to show the correctness of their findings.

Sec. 1749. Complete survey.—After the district is preliminarily
established the court shall refer the report of the board of viewers
back to them, and unless United States or State engineers have already
surveyed the district or the major portion thereof, may make a com-
plete survey, plans and specifications for the drainage or levees, and
fix a time when said board of viewers shall complete and file their
report, not exceeding six months; but such time may be extended by
the court for good cause shown, either before or after the expiration
of said time.

Sec. 1750. Complete report—The board of viewers shall have
power to employ such assistants as may be necessary to make a com-
plete survey of the drainage district, and unless already surveyed by
United States or State engineers shall enter upon the ground and
make a survey of the main drain, or drains, and all its laterals, as
approved by the court. The line of each ditch, drain or levee shall be
plainly and substantially marked on the ground, if necessary. The
course and distance of each ditch shall be carefully noted and sufh-
clent notes made so that it may be accurately platted and mapped.
610 ACTS OF ASSEMBLY. [wa

A line of levels shall be run for the entire work, and sufficient data
secured from which accurate profiles and plans may be made. Fre
quent bench-marks shall be established along the line, or permanen:
objects, and their elevation recorded in the field books. If it 1s deemec
expedient by the board of viewers, other leyels may be run to deter-
mine the fall from one part of the district to another. If an old wate:
course, land drainage, ditch or channel is being widened, deepened or
straightened, it shall be accurately cross-sectioned so as to compute
the amount of cubic yards saved by the use of such old channel. A
drainage map of the district shall then be completed, showing the
location of the ditch or ditches, and other improvements, and the acre-
age as closely as may be determined by the records, or, if necessary
(the necessity therefor to be determined by the court or the judge
thereof in vacation), by the survey of the drainage engineer, of the
lands owned by each individual landowner or corporation within the
district. The location of any railroads or public highways and the
boundary of any incorporated towns or villages within the district shall
be shown on the map. There shall also be prepared to accompany
this map a profile of each levee, drain, or water-course, showing the
surface of the ground, the bottom or grade of the proposed improve-
ment, and the number of cubic yards of excavation or fill in each
mile or fraction thereof, and the total yards in the proposed improve-
ment and the estimated cost thereof, the cost of any other work re-
quired to be done, including the cost of the rights of way for the
levees, drains and ditches of the district, and the report shall state
an estimated cost thereof and what rights of way are required to be
purchased or condemned, and the said board of viewers is directed to
obtain the consent in writing of such landowners as will permit the
said levees, ditches and drains to be dug through their lands without
charge on their part for the land so to be. taken and occupied, and
before the board of drainage commissioners hereinafter mentioned
shall advertise for bids under the provisions of this chapter they shall
proceed to condemn such lands as shall have been so reported by said
board of viewers and approved by the court as necessary to be con-
demned ; such condemnation proceedings to be in accordance with sec-
tion seventeen hundred and forty-seven. But in any case where surveys
have been made by or under the direction of any engineer, surveyor.
corporation, town, city, county, State or of the United States govern-
ment, of lands, in any part or parcel of land included within any
proposed drainage district, authority is given to the court in which
the proceedings involving such land are being condemned to adopt
such survey or surveys and such information concerning the same
as can be obtained from the said engineer, surveyor, corporation,
town, city, county, State or United States government, and to dis-
pense with any other survey work which in its judgment can be
omitted without prejudice to the rights of any party whose lands are
aitected.

Sec. 1771. Assessment tax roll and amount to be assessed.—A fter
the contract for the work of construction of the improvement has
been let, the board of drainage commissioners shall ascertain the total
cost of the improvement, including damages awarded to be paid to
owners of land, all costs of incidental expenses, and including a reas-
onable attorney’s fee to counsel for petitioners for conducting the
proceedings on behalf of the petitioners, the amount of such fee to be
fixed by the court and also including an amount sufficient to pay the
necessary expenses of maintaining the improvement for a period of
three years after the completion of the work of construction, after
deducting therefrom any special assessments made against any rail-
road or highway, and thereupon the board of drainage commissioners,
under the hand of the chairman and secretary of the board, shall
.certify to the clerk of the circuit court the said total cost, ascertained
as aforesaid; and the said certificate shall be forthwith recorded in
the drainage record and open to inspection of any landowner in the
district.

The board of drainage commissioners shall immediately prepare,
in duplicate, the assessment rolls, or drainage tax lists, giving thereon
the names of the owners of land in the district, so far as can be
ascertained from the public records, or, if necessary, from the survey
made by the drainage engineer, a brief description of the several tracts
of land assessed, and the amount of the assessment against each tract
of land. The first of these assessment rolls shall provide assessments
sufficient for the payment of interest on the bond issue to accrue the
third year after their issue, and the instalment of principal to fall
due at the expiration of the third year after the date of issue, to-
gether with such amounts as shall have to be paid for collection and
handling of the same. The second assessment roll shall make like
provision for the fourth year; the third for the fifth year; and in like
manner for each succeeding year, and in each year commencing with
maturity of the bonds the tax levied shall be one hundred and ten
per centum of the maturing principal and interest of the bonds, in this
manner providing for the payment of maturing principal and interest
on the bonds one year in advance. Each of said assessment rolls shall
specify the times when collectable, and be numbered in their order,
and the amount assessed against the several tracts of land shall be
in accordance with the benefits received, as shown by the classification
of ratio of assessments made by the board of viewers. These assess-
ment rolls shall be signed by the chairman of the board of drainage
commissioners and by the secretary of the board. One copy of each
of the said assessment rolls shall be filed with the drainage record and
one copy shall be delivered to the county treasurer, or treasurers of
the county or counties in which the lands are located, after the clerk
of the circuit court in which the petition was filed has appended thereto
an order directing the collection of said assessments, and the said
clerk is hereby authorized and directed to make and append said
order, and the said assessments shall thereupon have the force and
effect of a judgment as in the case of State and county taxes. These
assessments shall constitute a first and paramount lien upon the lands
assessed with the payment thereof, second to State, county and dis-
trict taxes and levies, and shall be collected in the same manner by
the same officers as the State and county taxes are collected. The
said assessments shall be due and payable on the first Monday in
September in each year, and if the same shall not be paid in full by
the thirty-first day of December following, it shall be the duty of the
county treasurer or treasurers of the county or counties in which said
lands are located to sell the land or lands so delinquent. The sale of
lands for failure to pay such assessments shall be made at the court-
house door of the county in which the lands are situated, between the
hours of ten o'clock in the forenoon and four o'clock in the afternoon
of the first Monday in February of each year; and if for any necessary
cause the sale cannot be made on that date, the sale may be con-
tinued from day to day for not exceeding four days, or the lands
may be re-advertised and sold on the first Monday in March succeed-
ing, during the same hours, without any further order therefor. In
all other respects, except as to time of sale of land, the existing law
as to the collection of State and county taxes shall have application
to the collection of drainage assessments under this chapter. It shall
be the duty of the treasurer of the county in which the land ts located
and without any previous order from the board of drainage commis-
sioners, out of the amount received by him as aforesaid, to provide
and pay the instalment of interest at the time and place as evidenced
by the coupons attached to said bonds, and also to pay the annual in-
stalments of the principal due on said bonds at the time and placé as
evidenced by the said bonds; namely, so far as they affect and are
liens, by virtue of this chapter, upon the lands in his county, and any
county treasurer shall be guilty of a misdemeanor, if he shall wilfully
fail to make prompt payments of the said interest and principal upon
said bonds, and shall likewise be liable in a civil action for all damages
which may accrue either to the board of drainage commissioners or
the holder of said bonds, to either of both of which a right of action
is hereby given.

Sec. 1774. Bond issue.—At the expiration of fifteen days after
publication of notice of bond issue, the board of drainage commis-
sioners may issue bonds of the drainage district for an amount equal
to the total cost of the improvement, including all costs as allowed under
the terms of this chapter, less such amounts as shall have been paid in
cash to the county treasurer, or treasurers, plus an amount suffictent
to pay interest on the bond issue for the three years next following
the date of issue. These bonds shall bear not more than six per centum
interest per annum, payable semi-annually, and shall be paid within
thirty years, the first instalment of principal shall mature at the ex-
piration of three years from the date of issue. The board of drainage
commissioners may sell these bonds at such price as may be approved
by the court and devote the proceeds to the payment of the work as it
progresses, and to the payment of the interest on said bonds for the
three years next following the date of issue, and to the payment of
the other expenses of the district provided for in this chapter, includ-
ing a reasonable attorney’s fee to counsel for conducting the proceed-
ings, the amount of such fee to be fixed by the court. The proceeds
from such bonds shall be for the exclusive use of the levee or drainage
district specified on their face, and the bonds shall be numbered by the
1920. | ACTS OF ASSEMBLY. 613

board of drainage commissioners and recorded in the drainage record,
which record shall set out specifically the lands embraced in the district
on which the tax has not been paid in full, which land is to be assessed
as hereinafter provided. If any instalment of principal or interest
represented by the said bond shall not be paid at the time and in the
manner when the same shall become due and payable, and such default
shall continue for a period of six months, the holder or holders of such
bond or bonds upon which default has been made shall have a nght
of. action against said drainage district or the board of drainage com-
missioners of said district, wherein the court may issue a writ of
mandamus against the said drainage districts, its officers, including
the county treasurer, or treasurers, directing the levying of a tax or
special dssessment as herein provided, and the collection of same, in
such sum as may be necessary to meet any unpaid instalment of prin-
cipal and interest and costs of action, and such other remedies are
hereby vested in the holder or holders of such bond or bonds in default
as may be authorized by law; and the right of action is hereby vested
in the holder or holders of such bond or bonds upon which default
has been made, authorizing them to institute suit against any officer
on his official bond for failure to perform any duty imposed by the
provisions of this chapter. The offtcial bond of any county treasurer
shall be liable for the faithful performance of the duties herein as-
signed him. Such official bonds may be increased by the board of
supervisors of any county or the board or party having such authority.

The bonds and coupons issued under and by authority of this and
other sections of this chapter shall be exempt from all county or muni-
cipal taxation or assessment, direct or indirect, general or special,
whether imposed for purposes of general revenue or otherwise, and the
interest thereon shall not be subject. to taxation as for income, nor
shall said bonds and coupons be subject for taxation when constituting
a part of the surplus of any bank, trust company, or other corporation,
but when constituting a part of such surplus shall be deducted from
the total assets in order to ascertain the taxable value of such shares.

Sec. 1781. Drainage proceedings to which chapter applicable—
This chapter, as amended, shall apply to all drainage proceedings which
may be pending when this amendatory act takes effect, and to all
drainage districts theretofore established for which the bonds of said
districts have not been issued at the said time, so far as the same
may be applicable, unless the parties elect to continue to proceed
under the provisions of this chapter existing on the day before this
amendatory act becomes effective ; but if such election be not made, any
drainage district receiving the benefits of any amendment of this
chapter of the Code shall thereafter be governed by all the provisions
of the said chapter as amended.

This chapter shall, subject to the qualification contained in the
preceding paragraph of this section, apply to parts or stages of drain-
age proceedings which have been instituted but not yet completed.
including duties imposed upon the board of drainage commissioners,
the court, the county treasurer or treasurers and others after the con-
firmation of the final report of the board of viewers; provided, the
same are not inconsistent with the preceding acts, decrees and orders
in any pending proceeding ; but no vested right ‘heretofore acquired
shall be impaired.

2. An emergency existing, this act shall be in force from its
passage.