contemplated to be made, and the amount of monies, during the same period, received and expended by them, and each of them, in the discharge of their duties, and shall recommend such measures, in relation to the canals, as they shall deem the public interest to require. 5

ARTICLE THIRD.

Of the Appraisement of Damages.

Sec. 45. Number of canal appraisers; to take oath.

46. To appraise value of private property appropriated to public purposes.

47. To meet in the vicinity of premises, and hear evidence.

48. Claimants when and how to apply; consequence of neglect.

49. Claims for former damages, when to be exhibited.

50. Every decision of appraisers to be entered in a book kept for purpose.

51. A transcript of entry to be recorded in clerk's office of county where premises sit

uate.

52. Fee simple of premises appropriated, vested in state.

53. When damages appraised exceed benefits, commissioners to pay excess; in case of appeal, not to pay until final decision on the appraisement is had.

54. Appraisers to be paid $3 a day.

55. Claimant and commissioners may appeal from appraisers to supreme court.

56. Proceedings on appeal.

57. Appraisers to make return to appeal.

58. Acting commissioner, engineer, or superintendent of repairs, may fix, by agree. ment, amount of damages in certain cases.

59. When owner, and commissioner, &c. cannot agree, each to name a person, and they to name a third, who are to appraise damages.

60 & 61. If owner refuse to name an appraiser, a judge of county court to appoint orre for him.

62. Same proceeding when commissioner, &c. refuses to appoint an appraiser. 63. Appraisers to take oath; their decision conclusive.

64. To make certificate; commissioners to pay amount certified.

65. Payment, or offer to pay amount, to discharge commissioners from any further lia-
bility.

66. When party claiming damages to pay costs of proceedings, and when commissioners.
67. Appraisers so appointed, to be paid $1 50 per day.

$45. There shall continue to be appointed two officers, by the name of canal appraisers, who being associated with any acting canal commissioner, shall be the appraisers of damages, in the cases herein after specified. The oath or affirmation of office, taken by the canal apraisers, shall be filed in the office of the secretary of state."

$46. When any lands, waters or streams, appropriated by the canal commissioners, to the use of the public, shall not be given or granted to the state, it shall be the duty of the appraisers to make a just and equitable estimate and appraisement of the damages, and benefits, resulting to the persons interested in the premises so appropriated, from the construction of the work, for the purpose of making which, such premises shall have been taken.7

$ 47. It shall be their duty, for that purpose, to meet at such times and places as they may deem necessary, and as nearly in the vicinity of the premises, as conveniently may be, and hear such proper and

(5) Laws of 1817, p. 302, § 2; Laws of 1827, p. 239, § 37. (6) Laws of 1825, p. 398, § 1. (7) Laws of 1817. p. 302, § 3.

ART. 3.

Appraisers

Their duty.

To meet, &c.

TITLE 9. relevant evidence as shall be offered; and they are, for that purpose, empowered to administer oaths to witnesses.

Claimants for future dama.

apply.

$48. Every person interested in premises so appropriated, if he ges, when to intend to make any claim for damages, shall, within one year after such premises shall have been taken for the use of the state, exhibit to the appraisers a statement of his claim, in writing, signed by himself, his guardian or agent, and specifying the nature and extent of his interest in the premises appropriated, and the amount of damages; and every person refusing or neglecting to exhibit such claim, within the time prescribed, shall be deemed to have surrendered to the state his interest in the premises so appropriated.

Former damages.

Decisions to be entered.

Copy, evi'dence.

Right of the

state.

Payment for damages.

Pay of appraisers.

$49. No claim for damages, for premises that shall have been appropriated to the use of a canal, at any time before this Chapter shall be in force, shall be received by the appraisers, unless it shall be exhibited within one year after this Chapter shall become a law; and the premises so appropriated shall be deemed the property of the state; and no claims, other than those so exhibited, shall be paid without the special direction of the legislature.

$50. A regular entry of every determination and appraisement made by the appraisers, certified and signed by the appraisers making it, and containing an apt and sufficient description of the premises so appropriated, the names of the persons interested, and the sums estimated to each, for benefits and damages, shall be made in a book kept for that purpose, by the canal commissioners.8

$51. A transcript of every such entry, signed in like manner, and acknowledged or proved, as a conveyance of lands, shall be recorded in the clerk's office of each county in which the premises appropriated shall, in whole or in part, be situated.

$52. The fee simple of all premises so appropriated, in relation to which, such estimate and appraisement shall have been made and recorded, shall be vested in the people of this state.8

F

$53. If the damages so estimated and appraised, shall exceed the benefits, it shall be the duty of the canal commissioners to pay the amount of such excess of the damages, to the persons appearing, by the determination of the appraisers, to be thereto entitled; but no such payment shall be made, where an appeal or writ of error shall be prosecuted by the canal commissioners, until a final decision on the appraisement shall have been had."

$ 54. Each appraiser, for each day's actual attendance in the discharge of the duties of his office, shall receive the sum of three dollars, to be paid out of the treasury, and charged to the canal fund.10

(8) Laws of 1817, p. 302, § 3. (9) Ib.; Laws of 1827, p. 230, § 43. (10) Laws of 1825. p. 400, § 5.

Appeal.

$55. Every person having exhibited a claim for damages to the ART. 3. appraisers, and the canal commissioners where they shall deem the interests of the state to require it, may enter an appeal from the decision of the appraisers to the supreme court, who shall proceed to reverse, affirm or modify the appraisement, as in their opinion justice shall require; but in no case shall they allow a larger sum for damages, than shall have been demanded by the party entitled thereto, in his claim exhibited to the appraisers.

11

$56. Every such appeal shall be made in writing, stating briefly Proceedings. the grounds on which the appeal is made: if made by the canal commissioners, one copy of the appeal shall be served on the canal appraisers and another on the party claiming damages, his guardian or agent, either personally or by leaving the same at his usual place of abode; if made by the party claiming damages, one copy of the appeal shall be served on the appraisers, or one of them, and another on the canal commissioners. In all cases the appeal must be made and the proper copies served within three months, from the time that the decision appealed from, shall have been made and entered.11

$57. The appraisers shall make a return, in writing, to every appeal so served on them, and shall insert and state therein a copy of the claim for damages exhibited to them, the evidence produced or offered before them, and the grounds and reasons of their determination.

Ib.

iled by agree

$58. When damages shall be claimed by the owner of any land Damages setwhich the canal commissioners shall have occupied for temporary pur- ment poses, or on which they shall have entered for the purpose of obtaining materials for repairs, the acting commissioner on the line of the canal nearest to which the land shall be situate, or any engineer or superintendent of repairs authorised by him, may fix by agreement the amount of damages which such owner ought to receive.12

$ 59. If an agreement can not be made, the owner shall select one discreet freeholder of the county in which the land is situate, having no interest, direct or indirect, in the damages claimed, and the canal commissioner, engineer or superintendent, another; and the two thus chosen shall select a third to act with them in appraising the damages so claimed. 12

Reference.

$60. If the owner shall refuse or neglect to appoint an appraiser, Proceedings. such canal commissioner, engineer or superintendent shall serve upon him a notice, stating the name of the appraiser appointed by himself, and requiring such owner to make a similar appointment within two days thereafter, and if within that time no such appointment shall be made and signified, such commissioner, engineer or superintendent

(11) Laws of 1827, p, 229, § 41. (12) Laws of 1820, p. 183, § 3.

TITLE 9 shall apply to a judge of the county court of the county where the lands are situate, to appoint an appraiser in behalf of such owner.

$61. The judge to whom such application shall be made, upon due proof of the service of such notice, shall, in writing, appoint an appraiser in behalf of the owner, who shall have the same powers as if appointed by the owner himself.

$62. The two last preceding sections shall be construed as also prescribing the course to be pursued by the owner of the lands, where the refusal or neglect to appoint an appraiser, shall proceed from such canal commissioner, engineer or superintendent.

$ 63. The appraisers shall, before they enter on the duties of their trust, take the oath prescribed by the constitution of this state, before any person authorised to administer oaths; they shall then proceed to enquire into and assess the damages so claimed, and their determination, or that of any two of them, as to the amount of damages that ought to be paid, shall be conclusive. 13

$ 64. The appraisers making such determination, shall make a certificate thereof, under their hands and seals, and the amount of damages thus certified, (the costs, when not payable by the canal commissioners being deducted,) shall be paid by the canal commissioners to the person appearing by such certificate to be entitled thereto, within ten days after such certificate shall have been received by the canal commissioners, or as soon thereafter as they shall be in funds. 13

$65. Proof of such payment, or of the offer thereof, in case the party entitled thereto, shall decline to receive the same, shall forever discharge the canal commissioners and all persons employed by them, from all claims for entering upon and occupying such lands, and for taking and using the materials procured therefrom. 13

$66. If the amount of damages so certified shall, in any case, not exceed the sum offered for such damages by such acting canal commissioner, engineer, or superintendent, before the appointment of the appraisers, then the costs of all the proceedings after such offer, shall be deducted by the canal commissioners from the amount of damages certified; but if such amount shall exceed such previous offer, then all such costs shall be paid by the commissioners, in addition to the damages certified. 18

$67. Each of such appraisers shall be entitled for his services, to the sum of one dollar and fifty cents per day. 13

(13) Laws of 1820, p. 183, § 3.

ARTICLE FOURTH.

Of the Canal Board, their Powers and Duties.

SEC. 63 & 69. Canal board, their powers and duties.

70. To fix rates of toll, regulate their collection, and impose forfeitures.

71. Twenty-sixth and twenty-seventh sections of this Title to embrace such rates of toll. 72 & 73. Board may remit forfeitures, and when.

74. When estimated repairs on canals less than $30,000, board to execute them, when more, to report plan and estimate to the legislature before making them.

75. When board may sell or lease, for term of years, surplus water, to the highest bid

der.

76 & 77. Canal board may make extra allowance to contractors, and when.

78. Contractor claiming extra allowance, to present a petition to board, verified by proof.

ᎪᎡᎢ. 4.

duties.

$68. There shall continue to be a canal board, who shall possess Powers and the powers, and discharge the duties, enumerated in this Title, or which shall hereafter be by law enacted or declared.14

of officers,

$ 69. They shall have power to appoint so many superintendents Ib. of repairs, and collectors of tolls, on the canals, as they may deem necessary, to supply all vacancies that may occur in those offices, to Appointment remove any so appointed when they judge such removal proper, and &c. to determine the amount of compensation which they shall respectively receive; but no compensation exceeding one thousand dollars for any one year, shall be allowed to any superintendent. 15

$ 70. The canal board shall, from time to time, fix the rates of Rates of toll tolls to be collected on the canals, and shall prescribe such rules and regulations relative to their collection, and impose such forfeitures of money, for the breach thereof, as from time to time they shall judge reasonable; provided no forfeiture for a single offence shall exceed the sum of twenty-five dollars. 16

$71. The provisions of the twenty-sixth and twenty-seventh sec- Ib. tions of this Title, shall be construed to embrace all rates of toll, rules and regulations, so fixed and prescribed.17

penalties.

$72. The canal board shall have power to remit, either absolute- Remission of ly, or upon such conditions as they shall prescribe, any forfeitures that may be incurred, by a violation of any of the provisions of this Title, or of any of the rules and regulations established by themselves, or the canal commissioners.

$73. No such forfeitures shall, however, be remitted, unless on Proceedings. the petition, in writing, of the party liable thereto, supported by due proof of the facts, upon which the claim for a remission shall be founded, and every such petition, with the accompanying proof, and the order of the board thereon, shall be preserved and filed in the of fice of the comptroller.

(14) Laws of 1826, p. 360, §. 4. (15) Ib. §5; Laws of 1827, p. 224, § 13. (16) Laws of 1820, p. 189, §. 20; 1826, p. 360. §5; 1827, p. 224, § 13 (17) Laws of 1927, p. 224, § 15