Chap. 467.—An ACT to amend and re-enact sections 1738, 1739, 1744, 1752, 1753,

1764, 1771, 1775 and 1778 of the Code of Virginia relating to drain districts,

of x which sections 1738 and 1771 were amended by an act approve March 23,
Approved March 21, 1924.

1. Be it enacted by the general assembly of Virginia, That sections
seventeen hundred and thirty-eight, seventeen hundred and thirty-nine,
seventeen hundred and forty-four, seventeen hundred and fifty-two,
seventeen hundred and fifty-three, seventeen hundred and sixty-four,
seventeen hundred and seventy-one, seventeen hundred and seventy-
five, and seventeen hundred and seventy-eight of the Code of Virginia,
of which sections seventeen hundred and thirty-eight and seventeen
hundred and seventy-one were amended by an act approved March
twenty-second, nineteen hundred and twenty, be amended and re-
enacted so as to read as follows:

Section 1738. Petitions; bonds; board of viewers.—Whenever a
petition signed by two-thirds of the owners of land, according to the
latest assessment lists in a proposed drainage 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 or 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 benefit or utility, or the public health, conven-
lence or welfare, will be promoted by draining, ditching or leveling 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 landowners, including any railroad company, who have
not joined in the petition and whose lands are included in the proposed
drainage district. For the convenience of the petitioners, duplicate
originals of the same petition may be circulated and separately signed
by the several petitioners, without the others being present, which the
court shall treat in all respects as if the signatures had all been placed
upon the same copy at the same time. 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 disin-
terested resident freeholders of the county or counties in which said
lands are located and the drainage engineer recommended by the peti-
tioners in the petition, provided such engineer be disinterested and com-
petent, as a board of viewers to examine the lands described in the peti-
tion and make a preliminary report thereon. If no engineer be recom-
mended by the petitioners, the said court shall appoint a disinterested
and competent drainage engineer of its own selection. The clerk of
the said court thereupon shall mail a written notice to each member of
the board of viewers so appointed, notifying him of his appointment,
and requesting that the board proceed without delay to discharge its
duties as such according to law. If any member of the said board de-
cline, the said court shall appoint another person of like qualifications
to the one so declining who is willing to act. 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 compensa-
tion 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 pro-
vided 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 other-
wise, or out of the bond given by the petitioners in case the district is
not established.

If three-fourths of the landowners in any wet, swamp or overflowed
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 pro-
nounce as essential for the drainage of such lands, and agree in said peti-
tion 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, re-opened, 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.

Section 1739. How compensation of engineer, assistant and mem-
bers of board provided for.—The board of supervisors of the county in
which the petition has been filed, or such board or persons in said
county having charge of and jurisdiction over same, shall, at its first
meeting after the appointment of such drainage engineer, make provi-
sion for the compensation to be paid to him and his necessary assistants,
and to the other members of the board of viewers; and within thirty
days after the approval and certification by the judge of the circuit court
of said county of any account of said engineer and his necessary assist-
ants, and of the other members of the board of viewers, the accounts to
be approved and certified as the work progresses, and paid monthly,
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.

Section 1744. Filing preliminary report.—At the first term after
the filing thereof, the circuit court shall consider this report. If the
board of 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 finding, the petition shall be dismissed at the cost of the petitioners
to be apportioned among them according to the acreage owned by each
within the bounds of the proposed district. Such petition or proceed-
Ings may again be instituted by the same or additional land owners at
any time after six months upon proper allegations that conditions have
changed or that material facts were omitted or overlooked.

If the board of viewers report that the drainage is practicable and
that it will benefit the public health or any public highway, or be con-
ducive to the general welfare of the community, the court shall enter-
tain their report, and shall fix a day, either at the same or some succeed-
ing term, when the report will be heard and considered.

Section 1752. Classification of land according to benefits.—It shall
be the further duty of the board of viewers personally to examine the
land in the district and classify it with reference to the benefit it will
receive from the construction of the levee, ditch, drain, watercourse or
other improvement. In the case of drainage, the degree of wetness of
the land, its proximity to the ditch or a natural outlet, the fertility of
the soil, and benefits derived from flood -waters being diverted, shall be
considered in determining the amount of benefit it will receive by the
construction of the ditch. The land kenefited shall be separated into
five classes. The land receiving the highest benefit shall be marked
“‘class a”; that receiving the next highest benefit, “class b”; that re-
ceiving the next highest benefit, ‘‘class c’’; that receiving the next highest
benefit, ‘“‘class d’’; and that receiving the smallest benefit, ‘‘class e.”’

The holdings of any one land owner need not necessarily be all in
one class, but the number of acres in each class owned by each land owner
shall be ascertained and listed; the boundary thereof need not be marked
on the ground but shall be shown on a separate map marked “classifi-
cation map.” The total number of acres owned by one person in each
class and the number of acres benefited shall be determined approxi-
mately. The total number of acres of each class in the entire district
shall be obtained, approximately, and presented in tabulated form. The
scale of assessment upon the several classes of land returned by the board
of viewers shall be in the ratio of one, two, three, four and five—that
Is tc say, as often as five mills per acre is assessed 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.

Section 1753. Cost of survey.—The board of viewers shall keep an
accurate account and report monthly to the court the name of each
person employed on the survey, the number of days he was employed and
the kind of work he was doing, and any expense that may have been
incurred in going to and from the work and the cost of any supplies or
materials that may have been used in making the survey.

Section 1764. Highways affected.—Where any public ditch,
drain or watercourse established under the provisions of this chapter
crosses a public highway, one-half of the actual cost of constructing the
same across the highway, or of removing old bridges or building
new ones, shall be paid by the county, and one-half shall be paid from
the fund of the drainage district. Wherever any highway within the
levee or drainage district shall be beneficially affected by the construc-
tion of any improvements in such district, it shall be the duty of the
board of 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 circuit court of the county in which the petition was filed
to the clerk of the board of supervisors in the county where the road is
located of the amount of such assessment, and the supervisors or road
board shall have the right to appear before the court and file their ob-
jection, the same as any land owner.

_ When it shall become necessary for the board of drainage commis-
sioners to repair any bridge or construct a new bridge across a highway
by reason of enlarging any watercourse or of excavating any canal inter-
secting such highway, the cost thereof shall be paid out of the drainage
fund, but the said bridge shall thereafter be maintained by and at the
expense of the board of supervisors of such county, or by such other
official board or authority as by law shall be required to ‘maintain such
highway so intersected.

Section 1771. Assessment tax roll and amount to be assessed; col-
lection of assessments and sale of lands to pay delinquent assessments.—
After 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 reason-
able attorney’s fee to counsel for petitioners for conducting the pro-
ceedings 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 neces-
sary 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, 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 as-
sessed, 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 installment of principal to fall due at the expira-
tion of the third year 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 provision for the fourth year; and
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 princi-
pal and interest of the bonds, in this manner providing for the payment
of maturing principal and interest on the bonds one year in advance;
provided, however, that when the sum actually collected on any such
assessment shall be more than sufficient to pay the said principal and
interest for the next succeeding year, a proper allowance for such sur-
plus shall be made in the following assessment, and the percentage may
be reduced accordingly. Each of said assessment rolls shall specify the
times when collectible, 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 assessment rolls shall be signed
by the chairman of the board of drainage commissioners and by the sec-
retary of the board. One copy of each of the said assessment rolls shal]
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 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 lien upon the lands
assessed with the payment thereof, second only to State, county and
district 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, they shall be delinquent and shall be entered
as such by the treasurer of the county in which the lands whereon the
assessments are delinquent are located, on his copy of the said assess-
ment rolls, which entry shall be notice of the lien of any such delinquent
assessment to the same extent as the entry of lands in the delinquent
tax books is notice of the lien thereon. From the date of delinquency of
any assessment it shall bear interest at the legal rate, and a penalty of
five per centum of the assessment shall be added thereto.

If any assessment be delinquent for more than a year, the treasurer
of the county within which the land assessed lies shall within thirty
days after the expiration of such year, proceed to sell the said land by
having notice of such intended sale served on the record owner of the
said land, if he be a resident of this State and his whereabouts herein be
known, as process is served in actions at law, by publishing the notice
of such sale in a newspaper published or having general circulation in his
county, and by posting the notice at the courthouse door, such service,
publication and posting to be not less than thirty days in advance of the
date set for the sale; such publication and posting shall be sufficient
notice of the sale to all parties in interest except the said owner resident
in this State. Such notice with the return thereon, if it be served, and
the certificate of the treasurer setting forth the date and medium of ‘pub-
lication shall be filed by the said treasurer in his office. If the land upon
which assessments are delinquent lies in more than one county, the
treasurer of each county shall sell the portion lying therein.

The sale of lands for failure to pay such assessments, and the col-
lection of such assessments, except as herein provided, shall be in ac-
cordance with general law as to the collection of State and county taxes.

If no objection be made to any sale of land under this section within
thirty days after the date of sale, and the purchase price has been paid,
the clerk of the circuit court of the county wherein the land lies shall
convey, by special warranty deed to the purchaser the land sold, receiving
therefor the fee provided by law for the conveyance of land sold for de-
linquent taxes. Such conveyance shall be indefeasible to the same
extent as a conveyance by a special commissioner acting under court
appointment, and all persons having actual or constructive notice of the
sale sail be precluded by such conveyance from thereafter objecting to
the sale.

It shall be the duty of the treasurer of the county in which the land
is located and without any previous order from the board of drainage
commissioners, out of the amount received by him as aforesaid, to pro-
vide and pay the installment of interest at the time and place as evi-
denced by the coupons attached to said bonds, and also to pay the
annual installments of the principal due on said bonds at the time and
place 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 or both of which a right of action is
hereby given.

If at any time before or after the preparation of the said assessment
rolls or drainage tax lists the owners of any land within the boundary of
the drainage district, who are liable for assessment or are assessed,
should sell the whole or part of said land, the board of drainage com-
missioners, having due regard for the class, or classes in which the said
land or part thereof was placed by the board of viewers, as shown by the
classification map of the district, shall so prepare or change the assess-
ment rolls to provide for the change i in liability due to the change of
ownership of said land or part thereof. The new owner’s name shall be
added to the assessment rolls and shall thereafter be liable for the drain-
age assessment upon that portion of the land purchased.

Section 1775. Fees allowed county treasurer.—The fees allowed
any county treasurer for collecting and disbursing the drainage tax pre-
scribed in this chapter shall be three per centum of the amount col-
lected; provided no fee shall be allowed any county treasurer for collect-
ing or receiving the revenue obtained from the sale of the bonds provided
for in this chapter, nor for disbursing the revenue raised for paying off
the said bonds. Fees received by any county treasurer under this
chapter need not be accounted for to the auditor of public accounts.

Section 1778. Fees and expenses.—Any engineer employed under
the provisions of this chapter shall receive such compensation per diem
for his services as shall be fixed and determined by the court. The
viewers, other than the engineer, shall receive five dollars per day each;
the transitmen, rodmen, chainmen and the axemen and other laborers
shall receive wages not to exceed the wages current at the time in the
locality for such services. The members of the board of drainage com-
missioners shall -eceive, from time to time, such compensation as the
court shall determine to be reasonable for the time expended and services
performed by them. All other fees and costs incurred under the pro-
visions of this chapter shall be the same as provided by law for like
services in other cases, or as fixed by the court if not provided by law.
Said costs and expenses shall be paid 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 or treasurers.