Pennsylvania Act 1899-68 — MUNICIPALITIES PERMITTED TO CHANGE WATERWAYS

Act text

MUNICIPALITIES PERMITTED TO CHANGE WATERWAYS
                  Act of Apr. 28, 1899, P.L. 74, No. 68               Cl. 11
                                  AN ACT

     Authorizing any borough or city within this Commonwealth to
        vacate, change, alter or relocate the course or channel of
        any creek, run or natural waterway, other than navigable
        streams, and for this purpose to enter upon, condemn and take
        property and materials necessary to such vacation, change,
        alteration or relocation, and providing for the ascertainment
        and assessment of costs, damages and expenses, as well as the
        levy and collection of benefits arising therefrom, and
        constituting such benefits a lien upon the properties upon
        which they are respectively assessed.

        Section 1.  Power of councils
        From and after the passage of this act, whenever the burgess
     and town council of any borough or the councils of any city
     within this Commonwealth shall deem it essential to the
     preservation of health, or to the interest and welfare of any
     borough or city and the inhabitants thereof, to vacate, change,
     alter or relocate the course or channel of any creek, run or
     natural waterway, other than navigable streams, the said burgess
     and town council, or the councils of any city, shall have full
     power and authority, by ordinance duly passed, to vacate,
     change, alter or relocate the course or channel of any creek,
     run or natural waterway, other than navigable streams, or any
     part thereof, within the limits of such borough or city, and for
     this purpose to enter upon, condemn and take such property and
     materials as may be necessary to effect such change, alteration
     or relocation. Provided, however, That no ordinance for the
     vacation, changing, alteration or relocation of the course or
     channel of any creek, run or natural waterway shall be passed
     until notice thereof has been given by publication of the
     proposed ordinance at length, for at least once a week for three
     consecutive weeks, in at least one newspaper published in the
     county in which said borough or city is situate.  1899, April
     28, P.L. 74, Sec. 1.
        Section 2.  Proceedings; petition; appointment of viewers
        To effectually carry out the provisions of this act, the
     borough or city authorities of any borough or city may, at any
     time after the passage and approval of the proper ordinance,
     present a petition in any court of common pleas of the proper
     county, setting forth at length the nature and character of the
     vacation, change, alteration or relocation proposed in the
     course or channel of any such creek, run or natural waterway,
     together with a description of the proposed change or
     improvements; and praying the court to appoint three
     disinterested freeholders to ascertain the damages, costs and
     expenses resulting from the vacation, change, alteration or
     relocation of the course or channel of any such creek, run or
     natural waterway, and to fairly and ratably assess the said
     damages, costs and expenses, or so much thereof as said viewers
     may deem just and reasonable, upon the property benefited or
     affected by such vacation, change, alteration or relocation, and
     make report thereof to court, whereupon said court of common
     pleas, or any law judge thereof in vacation, shall appoint three
     disinterested freeholders as viewers, and appoint a time, not
     less than twenty nor more than thirty days thereafter, when said
     viewers shall meet upon the line of the improvement and view the
     same and the premises affected thereby. Said viewers shall give
     notice of the time of their first meeting by posting hand bills
     upon the premises affected at least ten days prior to such
     meeting, or by such other means as the court shall deem
     necessary and proper.  1899, April 28, P.L. 74, Sec. 2.
        Section 3.  Duties of viewers; assessment of damages and
     benefits; schedule; notice; exceptions
        Said viewers, having been duly sworn or affirmed faithfully,
     justly and impartially to decide and true report to make
     concerning all matters and things to be submitted to them, and
     in relation to which they are authorized to inquire in pursuance
     to the provisions of this act, and having viewed the premises or
     examined the property, shall hear all parties interested and
     their witnesses, and shall estimate and determine the costs and
     expenses and the damages for property taken, injured or
     destroyed, to whom the same is payable; and having so estimated
     and determined the damages, together with the benefits as
     hereinafter mentioned, they shall prepare a schedule thereof,
     and give notice to all parties to whom damages are allowed, or
     upon whom assessments for benefits are made, of a time, not less
     than ten days thereafter, and of a place where said viewers will
     meet and exhibit said schedule and hear all exceptions thereto
     and evidence.  Notice of the time and place of said meeting
     shall be given, by personal service, upon all parties allowed
     damages or assessed benefits, as shown upon such schedule. After
     making whatever changes are deemed necessary, the said viewers
     shall make report to the court, showing the damages, costs and
     expenses, and benefits allowed and assessed, in each case, and
     file therewith a plan, showing the improvements, the properties
     taken, injured or destroyed, and the properties benefited
     thereby. When said report is filed, notice thereof shall be
     given by publication once a week for two weeks in a newspaper
     published in the county in which said borough or city is
     located, proof of publication of which shall be filed with the
     court at least five days before the confirmation of said report.
     Said notice shall state the date of filing of the report, and
     shall contain a schedule of the damages and benefits as shown
     therein, and shall further state that, unless exceptions thereto
     be filed within thirty days from the date of filing, the said
     report will be confirmed absolutely. 1899, April 28, P.L. 74,
     Sec. 3.
        Section 4.  Payment of damages; assessment of damages and
     benefits
        The payment of damages sustained by the changes provided for
     in this act, in the course or channel of any creek, run or
     natural waterway, may be made, either in whole or in part, by
     the borough or city, or in whole, or in part, by assessment upon
     the property benefited by such improvements, as said viewers may
     determine and the court approve; and, in the latter case, the
     viewers appointed to assess damages, having first estimated and
     determined the same, together with the costs and expenses
     thereof apart from benefits, shall also assess the said damages,
     costs and expenses, or so much thereof as they may deem just and
     reasonable, upon the properties peculiarly benefited by the
     improvement, including in the said assessment all properties for
     which damages have been allowed, if in their judgment such
     properties shall be benefited thereby, and shall report the same
     to the said court. The total assessment for benefits shall not
     exceed the total damages and cost of such change or improvement.
     1899, April 28, P.L. 74, Sec. 4.
        Section 5.  When viewers may be appointed
        The viewers provided for in the foregoing sections may be
     appointed before or at any time after the entry, taking,
     appropriation or injury of any property or material for
     constructing said improvement, or making such changes or
     alterations, as herein provided for.
        The costs of the viewers and all court costs, incurred in the
     proceedings aforesaid, shall be defrayed by the borough or city,
     and each of said viewers shall be entitled to a sum not to
     exceed three dollars ($3) per day for every day necessarily
     employed in performance of the duties herein prescribed.  1899,
     April 28, P.L. 74, Sec. 5.
        Section 6.  Security for payment of damages
        In all cases where the parties have not agreed upon the
     amount of damages claimed, or where, by reason of the absence or
     legal incapacity of the owner or owners, no such agreement can
     be made for the lands, property or materials to be taken,
     occupied or injured, the borough or city may tender sufficient
     security to the party claiming or entitled to any damages, or to
     the attorney or agent of any person absent, or to the agent or
     other officer of a corporation, or committee of any one under
     legal incapacity, the condition of which shall be that the said
     borough or city shall pay or cause to be paid such amount of
     damages as the party shall be entitled to receive, after the
     same shall have been agreed upon by the parties or assessed in
     the manner provided for by this act. In case the party or
     parties claiming damages refuse or do not accept the security so
     tendered, the borough or city shall then give the party, his or
     their agent, attorney, guardian or committee, written notice of
     the time when the same will be presented for filing in the
     court, and thereafter the said borough or city may present said
     security to the court of common pleas of the county wherein the
     lands or other property are situated, and, if approved, the
     security shall be filed in said court for the benefit of those
     interested, and recovery may be had thereon for the amount of
     damages assessed, if the same be not paid, or cannot be made by
     execution on the judgment in the issue formed to try the
     question, and upon the approval of said security said borough or
     city may proceed with the improvement.  1899, April 28, P.L. 74,
     Sec. 6.
        Section 8.  Effect of repeal of ordinance or discontinuance
     of proceeding; payment of costs and actual damages
        In case any borough or city shall repeal any ordinance
     passed, or discontinue any proceeding taken, providing for any
     of the changes or alterations provided for in the preceding
     sections of this act, prior to the entry upon, taking,
     appropriation or injury to any property or materials, and within
     thirty days after the filing of the report of the viewers
     assessing damages and benefits, the said municipality shall not
     thereafter be liable to pay any damages which have been or might
     have been assessed, but all costs upon any proceeding had
     thereon shall be paid by said municipal corporation, together
     with any actual damage, loss or injury sustained by reason of
     such proceedings. 1899, April 28, P.L. 74, Sec. 8.
        Section 9.  Lien of assessment of benefits
        When the court has made its final decree, confirming said
     report or fixing the assessments in each case, the assessments
     of benefits shall become and be liens upon the property
     assessed, and collected as now provided by law.  Said assessment
     of benefits shall bear interest at the expiration of thirty days
     from the confirmation of the report or the making of the decree,
     and may be collected by action of assumpsit; the lien of the
     judgment, however, to be limited to the property assessed.
     1899, April 28, P.L. 74, Sec. 9.
        Section 10.  Application of act limited
        Nothing in this act contained shall apply to any creek, run
     or natural waterway now or hereafter used by any municipality or
     water company as a source of supply, in whole or in part, for
     water, unless such municipality or water company shall consent
     and agree to the vacation, change, alteration and relocation of
     the course or channel of such creek, run or waterway.  1899,
     april 28, P.L. 74, Sec. 10.