CHAP. 159.—An ACT to amend and re-enact an act entitled “an act to
promote the public health, convenience and welfare by leveeing, ditch-
ing, and draining the wet, swamp and overflowed lands of the State,
and providing for the establishment of levee or drainage districts for
the purpose of enlarging or changing any natural water courses, and
for digging ditches, or canals, for securing better drainage, or pro-
viding better outlets for drainage, for building levees or embankments,
and installing tide gates or pumping plants for the reclamation of
overflowed lands, and prescribing a method for so doing; and _ pro-
viding for the assessment and collection of the cost and expense of the
same, and issuing and selling bonds therefor; and for the care and
maintenance of such improvements when constructed,” approved
March 17, 1910.

Approved March 12, 1912.

1. Be it enacted by the general assembly of Virginia, Vhat
an act entitled an act to promote the public health, convenience
and welfare by leveeing, .ditching and draining the wet, swamp
and overflowed lands of the State, and providing for the 2stab-
lishment of levee or drainage districts, for the purpose of en-
larging or changing any natural water courses, and for digging
ditches, or canals, for securing better drainage, or providing
better outlets for drainage, for building levees or embankments,
and installing tide gates or pumping plants for the reclamation
of overflowed lands, and prescribing a method for so doing; and
providing for the assessment and collection of the cost and ex-
pense of the same, and issuing and selling bonds therefor; and
for the care and maintenance of such improvements when con-
structed, approved March the seventeenth, nineteen hundred and
ten, be amended and re-enacted so as to read as follows:

(1.) The circuit courts of the several counties in the State of
Virginia shall have jurisdiction, power and authority to estab-
lish a levee, or drainage district, or districts in their several
counties, and in districts as hereinafter set out, and to locate and
establish levees, drains or canals, and cause to be constructed,
straightened, widened or deepened any land drainage, ditch,
drain, or water course, and to build levees or embankments and
erect tide gates and pumping plants for the purpose of drain-
ing and reclaiming wet, swamp or overflowed lands; and it is
hereby declared that the drainage of swamps and the drainage
of the surface water from agricultural lands and the reclamation
of tidal marshes shall be considered a public benefit and condu-
ceive to the public health, convenience, utility and welfare.

(2.) Petitions; bond; board of viewers.—Whenever a peti-
tion, signed by a majority of the resident landowners in a propos-
ed drainage district, or by the owners of three-fifths of all the
land 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, and the
public benefit or utility or the public health, convenience or wel-
fare will be promoted by draining, ditching or leveeing the
same, or by changing or improving the natural water courses;
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 in-
curred 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 landowners who have not joined
in the petition and whose lands are included in the proposed
drainage district. Said summons shall be returnable to the first
day of the next term of the circuit court of said county, at which
time the said court shall appoint a disinterested and competent
drainage engineer, and two resident freeholders of the county
or counties in which said lands are located as a board of viewers
to examine the lands described in the petition, and make a pre-
liminary report thereon. The compensation for the services of
such engineer and his necessary assistants 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.

The board of supervisors of the county in which the peti-
tion has been filed, or such board or persons in said county hav-
ing charge of and jurisdiction over same, shall, at its first meet-
ing after the appointment of such drainage engineer, make pro-
vision for the compensation to be paid to him and his necessary
assistants; and within thirty days after the approval and cer-
tification by the judge of the circuit court of said county of any
account of said engineer and his necessary assistants, the ac-
counts to be approved and certified as the work progresses, shall
take such action as will insure the issuing of a county warrant
for the amount so approved and certified.

When the lands proposed to be drained and created into a
drainage district are located in two or more counties, the clerk
of the circuit court of either county shall have and exercise the
jurisdiction herein conferred, and the venue shall be in that
county in which the petition is first filed.

The summons may be served by publication as to any de-
fendants who cannot be personally served as provided by law.

If at the time of the filing of the petition, or at any time
subsequent thereto, it shall be made to appear to the court by
affidavit or otherwise that the owner or owners of the whole or
any share of any tract or tracts of land whose names are un-
known, and cannot after due diligence be ascertained by the pe-
titioners, the court shall order a notice in the nature of a sum-
mons to be given to all such persons by a publication of the peti-
tion, or of the substance thereof, and describing generally the
tract or tracts of land as to which the owner or owners are un-
known, with the order of the court thereon, in some newspaper
published in the county wherein the land is located, or in some
other county, if no newspaper shail be published in the first
named county, which newspaper or newspapers shall be desig-
nated in the order of the court, and a copy of such publication
shall also be posted in at least three conspicuous places within
the boundaries of the proposed district, and at the court-house
door of the county. Such publication in a newspaper and by
posting shall be made once a week for four successive weeks.
After the time of publication shall have expired, if no person
claiming and asserting title to the tract or tracts of land and en-
titled to notice shall appear, the court, in its discretion, may ap-
point some disinterested person to represent the unknown owner
or owners of said lands, and thereupon the court shall assume
jurisdiction of the said tract or tracts of land, and shall adjudi-
cate as to the said lands to the same extent as if the true owners
were present and represented, and shall proceed against the land
itself. If at any time during the pendency of the drainage pro-
ceeding the true owner or owners of the lands shall appear in
person, they may be made parties defendant of their own motion
and without the necessity of personal service, and shall there-
after be considered as parties to the proceeding, but they shall
have no right to except to or appeal from any order or judgment
theretofore rendered as to which the time for filing exceptions on
notice shall have expired.

(3.) 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 improvements as are petitioned for, along the route described
in petition, or any other route answering the same purpose, if
found more practicable or feasible, and may run levels such as
may be necessary to determine the elevation of the several parts
of the district, and shall make and return to the clerk of the
county circuit court within sixty days, unless the time shall be
extended by the court, or the judge thereof in vacation, a writ-
ten report, which shall set forth:

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

(2) Whether it will benefit the public health or any public
highway or be conducive to the general welfare of the commu-
nity;

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

(4) Whether or not all the lands that are benefited are in-
cluded in the proposed drainage district.

They shall also file with this report a map of the proposed
drainage district, showing the location of the ditch or ditches or
other improvement 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.

(4.) Filing preliminary report.—At the first term after the
filing thereof, the circuit court shall consider this report. If
the viewers report that the drainage is not practicable or that
it will not benefit the public health or any public highway or
be conducive to the general welfare of the community, and the
court shall approve such findings, the petition shall be dismissed
at the cost of the petitioners. Such petition or proceeding may
again be instituted by the same or additional landowners at any
time after six months upon proper allegations that conditions
have changed or that material facts were omitted or overlooked.

If the viewers report that the drainage is practicable and
that it will benefit the public health or any public highway, or
be conducive to the general welfare of the community, and the
court shall so find, then the court shall fix a day, either at the
same or some succeeding term, when the report will be further
heard and considered.
5. Notice—If the petition is entertained by the court, no-
tice shall be given by publication for two consecutive weeks in
some newspaper of general circulation within the county or
counties, if one shall be published in such counties, and also
by posting a written or printed notice at the door of the court-
house and at five conspicuous places within the drainage dis-
trict, that on the date set, naming the day, the court will consider
and pass upon the report of the viewers. At least fifteen days
shall intervene between the date of the publication and the post-
ing of the notices and the date set for the hearing.

6. Hearing preliminary report.—At the date appointed for
the hearing the court shall hear and determine any objection
that may be offered to the report of the viewers. If it appear
that there is any land within the proposed levee or drainage dis-
trict that will not be affected by the leveeing or drainage there-
of, such lands shall be excluded and the names of the owners
withdrawn from such proceeding; and if it shall be shown that
there is any land not within the proposed district that will be
affected by the construction of the proposed levee or drain, the
boundary of the district shall be so changed as to include such
land, and such additional landowners shall be made parties
plaintiff or defendant, respectively, and summons shall issue
accordingly as hereinbefore provided. After such changes in
the boundary are made, the sufficiency of the petition shall be
verified to determine whether or not it conforms to the require-
ments of the statute as provided in section two.

The efficiency of the drainage or levee may also be deter-
mined, and if it appears that the location of any levee or drain
can be changed so as to make it more effective, or that other
branches or spurs should be constructed, or that any branch or
spur projected may be eliminated, or other changes made that
will tend to increase the benefits of the proposed work, such
modification and changes shall be made by the court. The en-
gineer and the two other viewers may attend this meeting and
give any information or evidence that may be sought to verify
and substantiate their report. If necessary, the petition as
amended shall be referred by the court to the engineer and two
viewers for further report.

The above facts having been determined to the satisfaction
of the court, and the boundaries of the proposed district de-
termined. it shall declare the establishment of the drainage or
levee district, which shall be designated by a name or number.
for the object and purpose as herein set forth.

If any lands shall be excluded from said district because of
the court having found that such lands will not be affected or
benefited, and the names of the owners of such lands have been
withdrawn from such proceeding, but such lands are so situated
as necessarily to be located within the outer boundaries of said
district, such fact shall not prevent the establishment of the
district, and said lands shall not be assessed for any drainage
tax, but this shall not prevent the district from acquiring a right
of way across such lands for constructing a canal or ditch or for
any other necessary purpose authorized by law.

7. May condemn land.—If it shall be necessary to acquire
a right of way or an outlet over and through lands not affected
by the drainage, or to remove a dam or other obstacle, whether
the same is or is not operated under decree of court, and the
same cannot be acquired by purchase, then in such event the
power of eminent domain is hereby conferred, and the same may
be condemned. Such owner or owners of the land or dam pro-
posed to be condemned may be made parties defendant, and the
procedure shall be under the restrictions provided by the gen-
eral statutes of this State relative to the condemnation of land
so far as the same may be applicable.

T-a. Right of appeal—Any person or corporation owning
lands within the drainage or levee district, which he or it thinks
will not be benefited by the improvement and should not be in-
cluded within the district, shall have a right of appeal as pro-
vided by chapter one hundred and seventy of the Code of Vir-
ginia of eighteen hundred and eighty-seven, and the acts amenda-
tory thereof.

8. Complete survey.—After the district is established the
court shall refer the report of the engineer and viewers back to
them to make a complete survey, plans and specifications for
the drainage or levees, and fix a time when said engineer and
viewers shall complete and file their report, not exceeding six
months.

9. Complete report.—The engineers and viewers shall have
power to employ such assistants as may be necessary to make
a complete survey of the drainage districts, and shall enter
upon the ground and make a survey of the main drain, or drains,
and all its laterals. The line of each ditch, drain or levee shall
be plainly and substantially marked on the ground. The course
end distance of each ditch shall be carefully noted and sufficient
notes made so that it may be accurately platted and mapped.
A line of levels shall be run for the entire work, and sufficient
data secured from which accurate profiles and plans may be
made. Frequent benchmarks shall be established along the line,
or permanent objects and their elevation recorded in the field
books. If it is deemed expedient by the engineer and viewers,
other levels may be run to determine the fall from one part of
the district to another. If an old water 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 loca-
tion of the ditch or ditches and other improvements, and the
boundary as closely as may be determined by the records, or, if
necessary, by the survey of the drainage engineer, of the lands
owner 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 pre-
pared to accompany this map a profile of each levee, drain, or
watercourse, showing the surface of the ground, the bottom or
grade of the proposed improvement, and the number of cubic
yards of excavation or fill in each mile or fraction thereof, and
the total yards in the proposed improvement and the estimated
cost thereof, and the cost of any other work required to be done.

10. Assessment of damages.—It shall be the further duty of
the engineer and viewers to assess the damages claimed by any
one that are justly right and due to them for land taken or for
inconvenience imposed because of the construction of the im-
provement or for any other legal damages sustained. Such
damage shall be considered separate and apart from any benefit
the land would receive because of the proposed work.

11. Classification of land according to benefits.—It shall be
the further duty of the engineer and viewers to personally ex-
amine the land in the district and classify it with reference to
the benefit it will receive from the construction of the levee,
ditch, drain or water course or other improvement. In the case
of drainage the degree of wetness of the land, its proximity to
the ditch or a natural outlet and the fertility of the soil shall be
considered in determining the amount of benefit it will receive
by the construction of the ditch. The land benefited shall be
separated into five classes. The land receiving the highest bene-
fit shall be marked “Class A”, that receiving the next high-
est benefit, ‘““Class B’”, that receiving the next highest benefit
“Class C’”’, that receiving the next highest benefit “Class D”,
and that receiving the smallest benefit ‘Class EK”. The hold-
ings of any one landowner need not necessarily be all in one
class, but the number of acres in each class shall be ascertained,
though its boundary need not be marked on the ground or shown
en the map. The total number of acres owned by one person in
each class and the number of acres benefited shall be determined.
The total number of acres of each class in the entire district
shall be obtained and presented in tabulated form. The scale
of assessment upon the several classes of land returned by the
engineer and viewers shall be in the ratio of one, two, three, four,
and five—that is to say, as often as five mills per acre is as-
sessed against the land in Class A, four mills per acre shall be
assessed against the land in Class B, three mills per acre in
Class C, two mills per acre in Class D, and one mill per acre in
Class E. This shall form the basis of assessment of benefits to
the lands for drainage purposes.

12. Cost of the survey.—The engineer and viewers shall keep
an accurate account and report to the court the name and number
of days each person was employed on the survey and the kind
of work he was doing, and any expense that may have been in-
curred in going to and from the work and the cost of any sup-
plies or material that may have been used in making the survey.

13. Delay; extension of time.—In case the work is delayed
by high water, sickness or any other cause, and the report is
not completed at the time fixed by the court, the engineers and
viewers shall appear before the court, or the judge thereof in va-
cation, and state in writing the cause of such failure, and ask
for sufficient time in which to complete the work, and the court,
or judge, shall set another date by which the report shall be com-
pleted and filed; the action of the court or judge in such a case
to be conclusive evidence as to the sufficiency of the grounds for
such postponement or extension.

14. Final report; notice of hearing.—When the final report
is completed and filed, it shall be examined by the court, and if
it is found to be in due form and in accordance with the law, it
shall be accepted, and if not in due form, it may be referred back
to the engineer and viewers, with instruction to secure further
information, to be reported at a subsequent date to be fixed py
the court.

If it appear from said final report that there is any land
within the proposed levee or drainage district that will not be
affected by the leveeing or drainage thereof, such lands shall be
excluded and the names of the owners withdrawn from such
proceeding, and if it shall be shown that there is any land not
within the proposed district that will be affected by the con-
struction of the proposed levee or drain, the boundary of the
district shall be so changed as to include such land, and such
additional landowners shall be made parties plaintiff or defend-
ant, and summons shall issue against them, they to have at least
ten days’ notice.

When the report is fully ‘completed and accepted by the
court, a date shall be fixed by the court for the final hearing
upon the report, and notice thereof given by publication in a
newspaper of general circulation in the county or counties, if
one shall be published in said counties, and by posting a written
or printed notice on the door of the court-house and at five con-
spicuous places throughout the district, such publication to be
made for at least two weeks before the final hearing. During
this time a copy of the report shall be on file in the office of the
clerk of the county circuit court, and shall be open to the in-
spection of any landowner or other person interested within the
district.

15. Adjudication; final report.—At the date set for hearing,
any landowner may appear in person or by counsel and file his
objection in writing to the report of the viewers; and it shall be
the duty of the court to carefully review the report of the view-
ers and the objections filed thereto, and make such changes as are
necessary to render substantial and equal justice to all the land-
owners in the district. If in the opinion of the court, the cost
of construction, together with the amount of damages assessed,
is not greater than the benefits that will accrue to the lands af-
fected, the court shall confirm the report of the viewers. If,
however, the court finds that the cost of construction, together
with the damages assessed, is greater than the resulting benefit
that will accrue to the lands affected, the court shall dismiss the
proceedings at the cost of the petitioners, and the sureties upon
the bond so filed by them shall be liable for such costs; also for
the expenses, including the compensation paid to the engineer
and his assistants.

Either party shall have a right of appeal from the judg-
ment of the court, as provided by chapter one hundred and sev-
enty of the Code of Virginia of eighteen hundred and eighty-
seven, and the acts amendatory thereof. Such appeal shall be
based and heard only upon the exceptions theretofore filed by the
complaining party, either as to issue of law or fact, and no addi-
tional exceptions shall be considered by the court upon the hear-
ing of the appeal.

The court may, from time to time, collect from the petitioners
such amounts as may be necessary to pay costs accruing, other
than the costs of the engineer and his assistants, such amounts to
be repaid from the special tax authorized in this act.

16. Drainage record.—The clerk of the county circuit court
shall provide a suitable book, to be known as the drainage record,
in which he shall record every petition, motion, order, report,
judgment or findings of the court in every drainage transaction
that may come before it, in such a manner as to make a complete
and continuous record of the case. Copies of all the maps and
profiles are to befurnished by the engineer and marked by the
clerk “official copies,’”’ which shall be kept on file by him in his
office, and one other copy shall be pasted or otherwise attached
to his record book.

17. Board of drainage commissioners; organization.—After
the said drainage district shall have been declared established, as
aforesaid, and the survey and plans therefor approved, the court
shall appoint three persons, who shall be designated as ‘“‘the
board of drainage commissioners.” Any vacancy thereafter oc-
curring shall be filled in like manner. Such three drainage com-
missioners, when so appointed, shall immediately be and consti-
tute a body corporate, under the name and style of “the board of
drainage commissioners of ............ district, number ....
Of ...... cee, county,” with the right to hold property and
convey the same, to sue and be sued, and shall possess such
other powers as usually pertain to corporations. They shall
organize by electing from among their number a chairman and a
vice-chairman. They shall also select a secretary, either within
or without their body. The treasurer of the county in which
the proceeding was instituted shall be ex-officio treasurer of such
board of drainage commissioners. Such board of drainage com-
missioners shall adopt a seal, which they may alter at pleasure.
The board of drainage commissioners shall have and possess
such powers as are herein granted. The name of such drainage
district, whether designated by number or otherwise, shall con-

stitute a part of its corporate name—for illustration, “the board
of drainage commissioners Of ..........20 cee eee eees district,
number ....,0f ....+-.....08. county.”

18. Superintendent of construction.—The board of drainage
commissioners shall appoint a competent person as supermten-
dent of construction. Such person shall furnish a bond to be ap-
proved by the commissioners, in the penal sum of ten thousand
dollars, conditioned upon the honest and faithful performance of
his duties, such bond to be in favor of the board of drainage
commissioners.

19. Notice of letting contract; bond.—The board of drainage
commissioners shall cause notice to be given for two consecutive
weeks In some newspaper published in the county wherein such
improvement is located, if such there be, and such additional
publication elsewhere as they may deem expedient, of the time
and place of letting the work of construction of said improve-
ment, and in such notice they shall specify the approximate
amount of work to be done and the time fixed for the completion
thereof; and on the date appointed for the letting they, together
with the superintendent of construction, shall convene and let
to the lowest responsible bidder, either as a whole or in section,
as they mav deem the most advantageous for the districts, the
proposed work. No bid shall be entertained that exceeds the
estimated cost, unless by good and satisfactory reasons it shall
be shown that the original estimate was erroneous. They shall
have the right to reject all bids and advertise again the work, if,
in their judgment, the interests of the district will be subserved
by doing so. The successful bidder shall be required to enter
into a contract with the board of drainage commissioners and to
execute a bond for the faithful performance of such contract,
with sufficient sureties, in favor of the board of drainage com-
missioners, Tor the use and benefit of the levee, or drainage
district, In an amount equal to twenty-five per centum of the
estimated cost of the work awarded to him.

In canvassing bids and lettings the contract, the superinten-
dent of construction shall act only in an advisory capacity to the
board of drainage commissioners. The contract shall be based
on the plans and specifications submitted by the viewers in their
final report as confirmed by the court, the original of which shall
remain on file in the office of the clerk of the circuit court of the
county in which the drainage district is located and shall be open
to the inspection of all prospective bidders. <All bids shall be
sealed and shall not be opened except under the authority of the
board of drainage commissioners, and on the day theretofore ap-
pointed for opening the bids. The drainage commissioners shall
have power to correct errors and modify the details of the report
cf the eneincer and viewers, if in their judgment they can in-
crease the efficiency of the drainage plan and afford better drain-
age to the lands in the district without increasing the estimated
cost submitted by the engineer and viewers and confirmed by the
court.

20. Monthly estimates.—The superintendent in charge of
construction shall make monthly estimates of the amount of work
done, and furnish one copy to the contractor and file the other
with the secretary of the board of drainage commissioners; and
the commissioners shall, within five days after the filing of such
estimate, meet and direct the secretary to draw a warrant in
favor of such contractor for ninety per centum of the work done,
accerding to the specifications and contract; and upon presenta-
tion of such warrant, properly signed by the chairman and secre-
tary, to the treasurer of the drainage fund he shall pay the
amount due thereon. When the work is fully completed and
accepted by the superintendent, he shall make an estimate for
the whole amount due, including the amounts withheld on the
previous monthly estimates, which shall be paid from the drain-
age fund, as before provided.

21. Failure of contractor; reletting.—If any contractor to
whom a portion of said work shall have been let shall fail to
perform the same according to the terms specified in his contract,
action may be had in behalf of the board of drainage commis-
sloners against such contractor and his bond in the county circuit
court for damages sustained by the levee or drainage district, and
recovery made against such contractor and his sureties. In such
an event the work will be advertised and relet in the same
manner as the original letting.

22. Right of contractor.—In the construction of the work
the contractor shall have the right to enter upon the lands neces-
sary for this purpose, and the right to remove private or public
highway bridges or fences, and to cross private lands in going
to or from work. In ease the right of way of the improvement
is through timber, the owner thereof shall have the right to re-
move it, if he so desires before the work of construction begins,
and in case it is not removed by the landowner, the contractor
shall have the right to remove same so far as it may be neces-
sary for the purpose of said construction.

23. Highways affected.—Where anv public ditch, drains, or
water course established under the provisions of this act crosses
a public highway, the actual cost of constructing the same across
the highway or removing old bridges or building new ones shall
be paid for from the fund of the drainage district. Wherever
any highway within the levee or drainage district shall be bene-
ficially affected by the construction of any improvements in
such district, it shall be the duty of the viewers appointed to
classify the land, to give in their report the amount of benefit
to such highway, and notice shall be given by the clerk of the
county circifit court to the clerk of the board of county super-
visors in the county where the road is located of the amount
cf such assessment, and the county supervisors or road board
shall have the right to appear before the court and file its ob-
jection, the same as any landowner.

When it shall become necessary for the drainage commission-
ers to repair any bridge or construct a new bridge across a high-
way by reason of enlarging any water course, or of excavating
any canal intersecting such highway, the said bridge shall there-
after be maintained by and at the expense of the board of super-
visors of such county, or by such other official board or authority
as by law shall be required to maintain such highway so inter-
sected.

24. Railroad; damawe: benefit.—W henever the engineer and
the viewers in charge shall make a survey for the purpose of
locating a public levee or drainage district, or changing a nat-
ural water course, and the same would cross the right of way
cf a railroad company, it shall be the duty of the viewers in
charge of the work to promptly notify the railroad company by
serving written notice, accompanied by plans and profiles, upon
the agent of such company or its lessee or receiver, that they
will mect the company at the place where the proposed ditch,
drain or water course crosses the right of way of such company,
or at such other place as may be agreed upon by the respective
parties; said meeting shall not be less than ten days after the
service of notice fixing the time of the same, for the purpose
of conferring with said railroad company with relation to the
place where and the manner in which such improvement shall
eross such right of way. When the time shall arrive fixed for
such conference, unless for good cause more time is agreed upon,
it shall be the duty of the viewers in charge and the railroad
company to agree, if possible, upon the place where and the
manner and method in which such improvement shall cross
such right of way. If, however, the viewers in charge and the
railroad company cannot agree, the whole matter shall be re-
ferred to the State corporation commission as arbitrators. The
fact that the railroad company is required by the construction
of the improvement to build a new bridge or culvert, or to en-
large or strengthen an old one, shall be considered as damages
to the said railroad company to the extent of the actual cost
thereof, as provided in section twenty-three. The engineers and
viewers shall also assess the benefits that will accrue to the
right of way of said company by affording better drainage or
a better outlet for drainage, as provided in section twenty-three
in the case of highways; but no benefits shall be assessed be-
cause of the increase in business that may come to said road be-
cause of the construction of the improvement. The benefits shall
be assessed as provided in section eleven, and it shall be reported
by the viewers as an assessment, due personally from the rail-
road company; and unless the same is paid when, due by the
company as an assessment, it may be collected in the manner of
an ordinary debt in any court having jurisdiction; but the board
of drainage commissioners of each district shall have the right
to enter into contracts with any such railroad company looking
to a further assessment by virtue of the benefits received under
this act.

25. Notice to railroad.—The clerk of the county circuit
court shall have notice served upon the railroad company of
the time and place of the meeting to hear and determine the
final report of the engineer and viewers, and the said railroad
company shall have the right to file objections to said report
and to appeal from the findings of the board of commissioners
in the same manner as any landowner, as provided in the pre-
ceeding sections of this act.

26. Manner of crossing right of way; cost.—After the con-
tract is let and the actual construction is commeneed, if the
work is being done with a floating dredge, the superintendent
in charge of construction shall notify the railroad company of
the probable time at which the contractor will be ready to enter
upon the right of way of said road and construct the work there-
on. It shall be the duty of said railroad to send a representa-
tive to view the ground with the superintendent of construction,
and arrange the exact time at which such work can be most
conveniently done. The work shall be so planned and con-
ducted as to interfere in the least possible manner with the
business of said railroad; and shall be conducted under the su-
pervision and direction of the representative of the railroad
company.

However, all work necessary in the roadbed of the railroad
company, including all temporary and permanent work, shall
be promptly done by the railroad company and paid for from
the fund of the drainage district in the same manner as pro-
vided in section twenty-three, covering public highways.

27. Control and repairs; penalty for injury to construction.—
Whenever any improvement constructed under this act is com-
pleted, it shall be under the control and supervision of the board
of drainage commissioners. It shall be the duty of the said board
to keep the levee, ditch, drain or water course in good repair, and
for this purpose they may levy an assessment on the lands bene-
fited by the construction of such improvement in the same man-
ner and in the same proportion as the original assessments were
made, and the fund that is collected shall be used for repairing
and maintaining the ditch, drain or water course in perfect or-
der; provided, however, that if any repairs are made necessary
by the act or negligence of the owner of any land through which
such improvement is constructed, or by the act or negligence of
his tenants, agents or employees, or the same is caused by the
cattle, hogs, or other stock of said owner, employee, or agent,
then the cost thereof shall be assessed and levied against the
lands of said owner alone, to be collected by proper suit insti-
tuted by the board of drainage commissioners.
It shall be unlawful for any person to injure or damage or
obstruct or build any bridge, roadway, fence or flood gate in
such a way as to Injure or damage any levee, ditch, drain or
water course constructed or improved under the provisions of
this act, and any person causing such injury shall be guilty of a
misdemeanor, and, upon conviction thereof, may be fined any
sum not exceeding twice the damage or injury done or caused. _

28. Outlet for lateral drains.—The owner of any land that
has been assessed for the cost of construction of any ditch, drain
or water course as herein provided shall have the right to use the
ditch, drain or water course as an outlet for lateral drains from
said land; and if said land is separated from the ditch, drain or
water course by the land of another or others, and the owner
thereof shall be unable to agree with said other or others as to
the terms and conditions on which he may enter their lands and
construct said drain or ditch, he may file his ancillary petition
to the court in such pending proceeding, and the procedure shall
be as now provided by law. When the ditch is constructed it
shall become a part of the drainage system, and shall be under
the control of the board of drainage commissioners and kept
in repair by them as provided in this act.

29. Assessment tax roll and amount to be assessed.—After
the classification of lands and the ratio of assessments of the dif-
ferent classes to be made thereon has been confirmed by the
court, 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 and incidental expenses, 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 railroad 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, ascer-
tained as aforesaid: and the said certificate shall be forthwith
recorded in the drainage record aiid open to inspection of any
Jandowner in the district.

The board of drainage commissioners shall immediately pre-
pare, in duplicate, the assessment rolls, or drainage tax lists, giv-
ing thereon the names of the owners of land in the district, so
far as can be ascertained from the public records, or if neces-
sary, 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 pay-
ment 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 vear after the date of issue, together with
such amounts as shall have to be paid for collection and handling
of the same. The second assessment roll shall make like pro-
vision for the fourth year; the third for the fifth year; the fourth
for the sixth year; the fifth for the seventh year; the sixth for
the eighth year; the seventh for the ninth year; the eighth for
the tenth year; the ninth for the eleventh year; the tenth for
the twelfth year. Each of said assessment rolls shall specify
the time when collectible, and be numbered in their order, and
the amounts assessed against the several tracts of land shall be
in accordance with the benefits received, as shown by the classi-
fication and ratio of assessments made by the viewers. These
assessment 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, after the clerk of the circuit court has appended
thereto an order directing the collection of said assessments,
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,
second only to State and county taxes and all recorded and
docketed existing liens, upon the lands assessed for the payment
of said bonds and interest thereon as they become due, 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
vear, 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 to sell the land or lands so delinquent. The sale of
lands for failure to pay such assessments shall be made at the
courthouse 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 continued from day to day for not exceed-
ing four days, or the lands may be re-advertised and sold on the
first Monday in March succeeding, during the same hours, with-
out any further order therefor. In all other respects, except as
to time of sale of lands, the existing law as to the collection of
State and county taxes shall have application to the collection
of drainage assessments under this act. It shall be the duty
of the county treasurer, and without any previous order from the
board of drainage commissioners, out of the amount received
by him as aforesaid, to provide and pay the instalments of in-
terest at the time and place as evidenced by the coupons attached
to said bonds, and also to pay the annual instalments of the
principal due on said bonds at the time and place as evidenced
by the said bonds; and the said county treasurer shall be guilty
of a misdemeanor and subject upon conviction to a fine and im-
prisonment, in the discretion of the court, 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 or both of
which a right of action is hereby given.

30. Time of payment.—If the total cost of the improvement
is less than an average of twenty-five cents per acre on all the
land in the district, the board of drainage commissioners shall
forthwith assess the lands in the district therefor, in accordance
with their classification, and said assessment shall be collected
in one installment by the same officer and in the same manner as
State and county taxes are collected, and shall be payable at the
same time. In case the total cost exceeds an average of twenty-
five cents per acre on all lands in the district, the board of drain-
age commissioners shall give notice for three weeks by publica-
tion in some newspaper published in the county in which the
district, or some part thereof, is situated, if there be any such
newspaper, and also by posting a written or printed notice at the
door of the court-house and at five conspicuous places in the
district, reciting that they propose to issue bonds for the pay-
ment of the total cost of the improvement, giving the amount of
bonds to be issued, the rate of interest that they are to bear and
the time when payable. Any landowner in the district not
wanting to pay interest on the bonds may, within fifteen days
after the publication of said notice, pay to the county treasurer
the full amount for which his land is liable, to be ascertained
from the classification sheet and the certificate of the board
showing the total cost of the improvement, and have his lands
released from liability to be assessed for the said improvement;
but such land shall continue liable for any future assessment tor
maintenance or for any increased assessment authorized under
this act.

31. Defense; waiver.—Each and every person owning land
in the district who shall neglect or fail to pay to the county
treasurer the full amount for which his land is liable, as afore-
said, within the time above specified, shall be deemed as con-
senting to the issuance of said drainage bonds, and in considera-
tion of the right to pay his proportion in instalments he thereby
waives his right of defense to the payment of any assessments
which may be levied for the payment of the said bonds, because
of anv irregularity, illegality, or defect in the proceedings prior
to such time, except in case of an appeal, as hereinbefore pro-
vided, which is not affected by this waiver. The term “person’’
as used in this act includes any firm, company, or corporation.

32. Bond issue.—At the expiration of fifteen days after pub-
lication 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 term of this act, less such amounts as
shall have been paid in in cash to the county treasurer, plus an
amount sufficient 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 annu-
ally, and shall be paid in ten equal instalments. The first in-
stalment of principal shall mature at the expiration of three
years from the date of issue, and one instalment for each succeed-
ing year for nine additional years. The commissioners may sell
these bonds at not less than par 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 act, including a reasonable attorney’s fee to
counsel for conducting the proceedings, 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 shall be numbered by the board of drainage com-
missioners 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 princi-
pal 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 may have a right of action against said
drainage district or the board of drainage commissioners of said
aistrict, wherein the court may issue a writ of mandamus against
the said drainage district, its officers, including the county treas-
urer, directing the levying of a tax or special assessment as
herein provided, and the collection of same, in such sum as may
be necessary to meet any unpaid instalments of principal and
interest and cost 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 act. The official bond
of the county treasurer shall be liable for the faithful perform-
ance of the duties herein assigned him. Such official bonds may
be increased by the board of supervisors of the 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 act shall be exempt from all county or
municipal 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 tax-
ation 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.
32-a. Fees allowed county treasurer.—The fees allowed the
county treasurer for collecting and disbursing the drainage tax
as prescribed in the sections of this act shall be three per centum
of the amount collected: provided no fee shall be allowed the
county treasurer for collecting or receiving the revenue obtained
trom the sale of the bonds provided for in the sections of this
act, nor for disbursing the revenue raised for paying off the said
bonds; provided further, that in those counties where the treas-
urer is on a salary basis, no fees whatever shall be allowed for
collecting or disbursing the funds of the drainage district.

32-b. Re-levy.—Where the court has confirmed an assess-
ment for the construction of any public levee, ditch or drain,
and such assessment has been modified by the court to which
an appeal had been taken, but for some unforeseen cause it
cannot be collected, the board of drainage commissioners shall
have power to change or modify the assessment as originally
confirmed to conform to the judgment of the higher court, and
to cover any deficit that may have been caused by the order of
said court or unforeseen occurrence. The said re-levy shall be
made for the additional sum required in the same ratio on the
lands benefited as the original assessment was made.

If any person, or any number of persons, claiming to have
title to any tract or tracts of land subject to assessment or drain-
age tax, shall fail to pay any annual assessment levied against
such lands, and the county treasurer shall be compelled to sell
such lands under the law for the purpose of making such col-
lection, the net proceeds of such sale shall be held by him and
disbursed for the purpose of paying the current assessment and
future annual assessments so far as the said proceeds may be
sufficient. When the fund in the custody of the treasurer shall
be exhausted in the payment of annual assessments against such
lands, or there shall not be a sufficient sum to pay the next
annual assessment, the county treasurer shall immediately give
written notice to that effect to the chairman of the board of
drainage commissioners of the district, and also to the clerk of
the circuit court, whereupon the board of drainage commis-
sioners shall institute an investigation of said tract or tracts
of land to determine its market value, and if they shall find
that its market value is not equal to all the future annual assess-
ments to cover its share of instalments of principal and interest
on the outstanding bonds, they shall proceed, with the approval
ot the clerk of the circuit court, or of the court itself, to make
new reassessment rolls on all the remaining lands in the district
and increase the sum in sufficient sums to equal the deficit
thereby created, and such new assessment rolls shall constitute
the future assessment rolls until changed according to law, and
shall be certified to the county treasurer, as herein provided in
lieu of the former assessment rolls. However, the said tract or
tracts of land which have been so sold by the county treasurer
shall continue on the assessment roll in the name of the new
owner, but reassessed upon the new basis, and the drainage tax
collected at the same time and in the same manner as other
lands as long as said lands may have sufficient market value
out of which to collect the annual drainage tax, and when such
lands shall fail to have such value, or shall be abandoned by the
person claiming title thereto, the board of drainage commission-
ers may omit the same from the assessment roll with the ap-
proval of the clerk of the circuit court, or of the court itself; but
the said lands may in the same manner at any time in the future
be restored to the assessment rolls. If the funds in the hands
of the county treasurer at any time, arising under this section
or In any other manner, shall be greater than is necessary to pay
the annual instalments of principal and interest, or the annual
cost of maintenance of the drainage works, or both, such surplus
shall be held by the county treasurer for future disbursement
tor other purposes as herein provided or subject to the order
of the board of drainage commissioners. If there shall be any
impairment or destruction of the drainage works by any unfore-
seen cause or occurrence not anticipated during the period of
construction by the contractor, the said contractor shall never-
theless repair and complete the said works according to the con-
tract’ and specifications, and shall be liable therefor and also his
sureties on his bond; but if said contractor shall make default,
and if there shall be a failure to collect all resulting damages
from such contractor and the sureties upon his bond, and it
shall thereby be necessary to raise a greater sum of money to
complete the drainage works in accordance with the plans, or
for any other unavoidable cause, it shall be necessary to raise
a greater sum to complete such drainage works, the board of
drainage commissioners, having first obtained the approval of
the clerk of the circuit ‘court, or of the court itself, shall pre-
pare new assessment rolls upon all the lands in the district
upon the original basis of classification of benefits, and increase
the same in sufficient sums to equal the deficit thereby created,
and the same shall constitute the new assessment rolls until
changed according to law, and shall be certified to the county
treasurer as herein provided. If for any of the causes herein-
before recited in this section or for any other cause, a sum of
money greater than the proceeds of sale of the drainage bonds
shall become necessary to complete said drainage system, and
the board of drainage commissioners shall determine that the
amount to be raised is greater than can be realized from the col-
lection of one annual assessment upon the lands in the district
without imposing an undue burden upon said lands, or if it
is advisable or necessary to raise the money more expeditiously,
then and under such conditions additional bonds may be issued
in such aggregate sum as may be necessary. The proceedings
for the issue of such additional bonds shall be substantially as
follows: The board of drainage commissioners shall file their
petition with the clerk of the circuit court, setting forth all the
facts which require the expenditure of more money and the issue
of additional bonds to complete the drainage system, which shall
be accompanied by the recommendation of the drainage engi-
neer, who was one of the original viewers, or some other expert
drainage engineer selected by the board of drainage commis-
sioners; whereupon the court shall issue a notice to all the own-
ers of land within the district, reciting the substance of the pe-
tition and directing each to appear before the court on a day
certain, not less than twenty days after the service upon all the
parties, and to show cause, if any they have, why the addi-
ditional bonds should not be authorized, which notice shall be
served personally on each such landowner }y leaving a copy,
and, if the same cannot be personally served, then it shall be
served in the manner authorized by law. Any landowner may
file an answer denying any material allegation in the petition
or setting forth any valid objection to same before the return
day thereof. Upon: the day when said notice is returnable,
or on such day as to which the same may have been continued,
the court shall proceed to hear the petition and answers. If
the court shall find that the allegations of the petition are true
and that the issue of additional bonds is advisable or necessary,
the court shall make an appropriate order authorizing and di-
recting the issue of such additional bonds, fixing the amount of
such issue, the date of same, the time when the interest and prin-
cipal shall be payable, and all other matters necessary and ap-
propriate in the premises. Any landowner may appeal from the
order of the clerk of the circuit court, or of the court itself, as
provided by chapter one hundred and seventy of the Code of
Virginia of eighteen hundred and eighty-seven, and the acts
amendatory thereof, and on such appeal only the issues raised in
the answer shall be considered.

After the court shall have ordered the additional issue of
bonds, the further procedure as to the assessment rolls, the
levving and collecting of the drainage taxes, the disbursement
of the revenue therefrom for the payment of said bonds and
interest thereon, and all further procedure shall be the same
as required by the preceding sections of this act, and amend-
ments thereto, for the establishment of draingae districts. The
additional bonds issued shall not exceed twenty-five per centum
of the total amount originally issued. The additional issue of
bonds shall bear not more than six per centum interest per an-
num, and may be made payable in ten annual instalments, or les-
ser number of annual instalments as nearly equal as may be, as
recommended by the board of drainage commissioners and ap-
proved by the court.

33. Fees and expenses.—Any engineer employed under the
provisions of this act shall receive such compensation per diem
for his services as shall be fixed and determined by the court.
The viewers, other than the engineers, shall receive three dollars
per day; the transitmen, not to exceed five dollars per day each:
the rodmen not to exceed two dollars per day each; and the ax-
men, chainmen and other laborers not to exceed one dollar and a
half per day each. All other fees and costs incurred under the
provisions of this act shall be the same as provided by law for
like services in other cases. Said costs and expenses shall be
yaid by the order of the court out of the drainage fund provided
for that purpose, and the board of drainage commissioners shall
issue warrants therefor when funds shall be in the hands of the
treasurer.

34. Defects in proceedings.—The provisions of this act shall
be liberally construed to promote the leveeing, ditching, draining
and reclamation of wet and overflowed lands. The collection of
the assessment shall not be defeated, where the proper notices
have been given, by reason of any defect in the proceedings oc-
curring prior to the order of the court confirming the final report
cf the viewers; but such order or orders shall be conclusive
and final that all prior proceedings were regular and according
to law, unless they were appealed from. If, on appeal, the court
shall deem it just and proper to release any person or to modify
his assessment or liability, it shall in no manner affect the rights
and liabilities of any person other than the appellant, and the
failure to appeal from the order of the court within thirty days
shall be a waiver of any illegality in the proceedings, and the
remedies provided for in this act shall exclude all other remedies.

35. Proceedings under this act may be ex parte or adver-
sary.—Any engineer, viewer, superintendent of construction or
other person appointed under this act may be removed by the
court upon petition, for corruption, neglect of duties or other
good and satisfactory cause shown.

36. All laws in conflict with this act are hereby repealed;
provided, that proceedings now pending by virtue of any statute
now or heretofore in force in this State in any county shall not
be affected by this act, but that such proceedings may be con-
tinued in accordance with such statute or in accordance with the
provisions of this act.

37. This act shall apply to all drainage proceedings which
may be pending at the date of its approval, and to all drainage
districts heretofore established for which the bonds of said dis-
trict have not been issued at the date of its approval, so far as the
same may be applicable.

Such of the provisions of this act as refer to parts or stages
of drainage proceedings which have been instituted but not
completed shall apply to the parts or stages of such proceedings
which may occur subsequent to the approval of this act, in-
cluding duties imposed upon the board of drainage commis-
sioners, the court, the county treasurer and others after the
confirmation of the final report of the viewers; provided the
same are not inconsistent with the preceding acts, decrees and
orders in any pending proceeding; and provided further, that no
vested right theretofore acquired shall be impaired. Subject to
foregoing provisions of this section, a necessity having arisen by
virtue of certain petitions having already been filed for the es-
tablishment of drainage districts, an emergency is declared to
exist, and this act shall be in force from its passage.