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TITLE 9/ Extra

Certain materials exempt

tion.

Payment of contracts.

tractor, upon bisulp filed in the offiche draft shall als

$37. No allowance over and above the contract price shall allowance. be made by the canal commissioners to any contractor, unless such extra allowance shall be directed by the canal board.

Laws of 1826, 363, § 33. $ 38. All materials procured, or partially procured, under a

contract with the canal commissioners, shall be exempt from from execu- execution ; but it shall be the duty of the canal commis[224]

sioners, to pay the monies due for such materials to the judgment creditor of the contractor, under whose execution such materials might otherwise have been sold, upon his producing to them due proof that his execution would have so attached ; and such payment shall be held a valid payment on the contract.

Laws of 1822, 321, $ 6. $ 39. Either of the canal commissioners may draw upon the commissioners of the canal fund, for any sum to be paid to a contractor, upon his contract; and if a copy of such contract shall have been duly filed in the office of the comptroller, and a receipt of the contractor for such draft shall also be filed in the same office, it shall be the duty of the commissioners of the canal fund to pay the draft.

Laws of 1826, 361, $ 20; 1827, 229, $ 36. See Laws of 1847, ch. 278;

1850, ch. 278. $ 40. No canal commissioner shall be allowed as such, to have in his hands at any one time, more than ten thousand dollars; and every sum advanced to, or received by him, shall be deemed to remain in his hands until its application shall have been properly accounted for to the comptroller.

Laws of 1826, 361, § 20; 1827, 229, $ 36. See Laws of 1837, ch. 451. S 41. In all cases in which suits shall be brought by the canal commissioners, or under their direction, for the recovery of penalties or damages under the provisions of this Title, it shall be their duty to keep an accurate account of the recoveries, and of the costs and expenses, and after deducting such costs and expenses, to pay over the residue of the sams received, to the commissioners of the canal fund, or account

for the same with the comptroller. Accounts,

$ 42. It shall be the duty of the canal commissioners to account and settle with the comptroller, on or before the fifteenth day of January in each year, for all monies received by them, and each of them, from the commissioners of the canal fund, or belonging to that fund; and such settlement, specifying the sums respectively paid to all contractors, engineers, agents and servants of every description, employed on the canals, and to all persons having received a compensation for damages, and the names of such persons shall, without delay, be reported by the comptroller to the legislature.

Laws of 1819, 124, § 6. § 43. No acting commissioner, superintendent of repairs,

Advances to commissioners.

Penalties,

&c.

Certain officers not

ART. 3. to be held

report to

collector or lock-keeper, on any canal, shall be held to bail, or taken by warrant, in any civil suit, for any act done, or to bail. omitted to be done by him, in the exercise of his official duties.

Laws of 1820, 190, $ 22. S 44. Within twenty days from the commencement of each Annual annual session of the legislature, the canal commissioners legislature. shall make their report to the legislature; and in such report shall state the condition of the canals, and all the works and improvements connected therewith, the improvements and repairs made during the past year, or contemplated to be [225] 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.

Laws of 1817, 302, & 2; 1827, 239, § 37. See Laws of 1847, ch. 278;

1849, ch. 363.

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.
51. A transcript of entry to be recorded in clerk's office of county.
52. Fee simple of premises vested in state.
53. When damages exceed benefits, commissioners to pay excess.
54. Appraisers to be paid $3 a day.
55. Claimant and commissioners may appeal.
56. Proceedings on appeal.
57. Appraisers to make return to appeal.
58 to 62. Damages for temporary occupation.
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 from liability.
66. When claimant to pay costs and when commissioners.

67. Appraisers to be paid $1.50 per day.

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

Laws of 1825, 398, $ 1; 7 Cow., 529. See Laws of 1836, ch. 287 ; 1857,

ch. 538. S 46. When any lands, waters or streams, appropriated by Their duty. 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

TITLE 9.

To meet, &c.

[226]

Claimants for future damages, when to apply.

Former damages.

interested in the premises so appropriated, from the construction of the work, for the purpose of making which, such premises shall have been taken.

Laws of 1817, 302, & 3; 6 H., 361. § 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 relevant evidence as shall be offered ; and they are, for that purpose, empowered to administer oaths to witnesses.*

S 48. Every person interested in premises so appropriated, if he 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.

4 N. Y., 68; 9 B., 496. See Laws of 1836, ch. 287; 1829, ch. 368; 1855,

ch. 535. $ 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.

11 N. Y., 313; 4 N. Y., 68; 15 B, 643. s 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.

Laws of 1817, 302, 83; 15 B., 641. See Laws of 1829, ch. 368; 1836,

ch. 287; 1849, ch. 352. S 51. A transcript of every such entry, signed by the appraisers, shall be recorded in the clerk's office of each county in which the premises appropriated shall, in whole or in part, be situated.

Laws of 1855, cha 535; 13 N. Y., 244. $ 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.

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Decisions to be entered.

Copy, evidence.

Laws of 1817, 302, S3; 15 B., 643.

Right of state,

* Sec. 1 and 2 of ch. 368, of Laws of 1829, contain provisions inconsistent with this section, and probably repeal it.

ART. 3. Payment

Appeal

$ 53. If the damages so estimated and appraised, shall exceed the benefits, it shall be the duty of the canal commis- for damages sioners 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.

Laws of 1817, 302, § 3; Laws of 1827, 230, $ 43. S 54. Each appraiser, for each day's actual attendance in Pay of

appraisers. 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.

Laws of 1825, 400, 85. See Laws of 1836, ch. 287. $ 55. Every person having exhibited a claim for damages to [227] the 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.*

2 H., 347. $ 56. Every such appeal shall be made in writing, stating Proceedbriefly 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 fro shall have been made and entered.t

$ 57. The appraisers shall make a return, in writing, to Ib. 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.t

$ 58. When damages shall be claimed by the owner of any Damages land which the canal commissioners shall have occupied for agreement. temporary purposes, 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

ings.

settled by

* By $ 3 of ch. 368, Laws of 1829, the appeal is to the Canal Board, whose decision is final.

1 Sections 4, 5, 6 and 7 of ch. 368 of Laws of 1829, are, in some measure, if not entirely, a substitute for these two sections.

TITLE 9.

% authorised by him, may fix by agreement the amount of damages which such owner ought to receive.

Laws of 1820, 183, $ 3; 13 N. Y., 238. See Laws of 1836, ch. 287. Reference.

$ 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.

Laws of 1820, 183, $ 3. Proceedings.

$ 60. If the owner shall refuse or neglect to appoint an appraiser, 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, [228]

such commissioner, engineer or superintendent 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.

3 H., 599. $ 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.

S 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.

Laws of 1820, 183, S3. Laws of 1829, ch. 368, contain eight sections

relating to appraisal of canal damages, which repeal such of the

provisions of this article as are inconsistent with that act. S 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.

Laws of 1820, 183, $ 3. Laws of 1829, ch. 368, contain eight sections

relating to appraisal of canal damages, which repeal such of the provisions of this article as are inconsistent with that act.

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