Section 15-1983. Drainage of agricultural lands; procedure

1.  Any person or persons owning any swamp, bog, pond, meadow or other
  low or wet agricultural lands within this state, or a  drainage  section
  association  organized  pursuant  to sections 15-1973 to 15-1981, who or
  which shall desire  to  drain  the  same  in  order  to  increase  their
  productivity  or  otherwise  render them more available for agricultural
  purposes and who shall deem it necessary, in order thereto, that a drain
  or drains, ditch or ditches, dike or dikes, seepage basin or basins  for
  the   free   passage   or  disposal  of  water  should  be  constructed,
  reconstructed, enlarged, cleaned or maintained  on  lands  belonging  to
  others, may acquire an easement or right to effect such purpose pursuant
  to  the  provisions  of  the  eminent  domain  procedure law, or in lieu
  thereof, may present a petition duly verified to the department  setting
  forth the following facts:
    a. The name and residence of the petitioner or petitioners.
    b.  A  map or description showing the approximate location and area of
  the property which is to be drained.
    c. A map or description which will show the location  of  such  drain,
  ditches, dikes and basins and the area of the lands and properties to be
  occupied thereby.
    d.  The names and places of residence of the owners of the property to
  be so occupied; if an infant, the name and place  of  residence  of  the
  person  with whom he resides; if a person adjudged incompetent by reason
  of mental illness or other cause, the name and place of residence of his
  committee or trustee, if he has one, otherwise, the name  and  place  of
  residence of the person with whom he resides; if a conservatee, the name
  and  place of residence of his conservator, if he has one, otherwise the
  name and place of residence of the person with whom  he  resides;  if  a
  non-resident,  having  an  agent  or  attorney  residing  in  the state,
  authorized to contract for the sale of the property, the name and  place
  of  residence  of  such  agent  or  attorney.  If  the  name or place of
  residence of any owner cannot after diligent inquiry be ascertained,  it
  may  be so stated with a specific statement of the extent of the inquiry
  which has been made.
    e. A statement that the petitioner has been unable to agree  with  the
  owner  or  owners  of  the  property for the damages to be paid for such
  occupation.
    f. A statement that it is the intention of  the  petitioner,  in  good
  faith,  to  complete  such  drains, ditches, dikes and basins, for which
  purpose the property is so occupied.
    g. A request that the department  determine  the  necessity  for  such
  drainage  and  for  occupying  such lands and property and ascertain the
  compensation to be made to the owner or owners and that  the  petitioner
  be  permitted, upon making such compensation, to construct, reconstruct,
  enlarge or clean such watercourses or drains, ditches, dikes and basins,
  and maintain the same across the lands specified.
    2. In addition, the petition shall be accompanied by  an  undertaking,
  satisfactory   to  the  department  as  to  amount  and  sureties,  that
  applicants will pay the expenses of the proceedings and determination as
  hereinafter provided.
    3. A person who seeks to acquire an easement or right, to  effect  the
  purpose  set  forth  in subdivision above, pursuant to the provisions of
  the eminent domain procedure  law,  and  who  is  unable  to  provide  a
  specific  description of the property to be acquired and its location by
  metes  and  bounds,  with  reasonable  certainty,  may  prior   to   the
  presentation of a petition to a special term of the Supreme Court, apply
  for an order permitting such person to enter upon the property sought to
  be  acquired,  for  the  purpose  of  viewing,  surveying, measuring and

  otherwise examining such property, in order to describe such property in
  the petition. Application for such an order shall be made to  a  special
  term  of  the  Supreme Court, held in the judicial district in which the
  property  is located. The court shall if the facts so warrant, grant the
  application upon such terms and conditions as it may deem advisable. The
  court may also require the applicant to post bond to indemnify the owner
  of the property for any damage caused in the making of the survey.
    4. Upon receipt of such petition, the department shall take such steps
  as it shall deem proper  to  ascertain  if  the  relief  sought  can  be
  accomplished  in  the  manner described in such petition and other facts
  pertinent to the case and to this end may make  such  surveys  or  other
  investigations as may be in its judgment necessary in the premises.
    5. Notice of a hearing shall be given as follows:
    a.  The  department  shall  appoint a time and place when and where it
  will hold a hearing for the purpose of  determining  the  necessity  for
  such drainage and for occupying such lands and properties and assess the
  damages  and  benefits resulting therefrom. The department shall deliver
  to the petitioner copies of the petition, to which shall be  attached  a
  notice  of  the time and place appointed for a hearing, addressed to the
  owner of each parcel to be occupied.
    b. The petitioner upon receipt of such copies and notice shall, on the
  same day, or the next day thereafter, excluding  Sundays  and  holidays,
  cause  such  copy and notice to be served upon the persons to whom it is
  addressed. A copy of such notice and petition shall  be  served  on  the
  owner of each parcel or to any one of several owners of a parcel in case
  there  be  more  than  one. In case the owner is an infant such copy and
  notice shall be served upon his general guardian, if he has one; if not,
  on the person with whom he resides. If a person adjudged incompetent  by
  reason of age, drunkenness, mental illness or other cause, service shall
  be  made  upon  his  committee or trustee, if he has one; if not, on the
  person with whom he resides. If  a  non-resident,  having  an  agent  or
  attorney  residing in this state, authorized to contract for the sale of
  the real property described in the petition, service upon such agent  or
  attorney will be sufficent service upon the owner.
    c.  Depositing  a copy and notice in the post office properly inclosed
  in an envelope addressed to the  owner,  guardian,  committee,  trustee,
  agent  or attorney, respectively, at his post office address, and paying
  the postage thereon shall be  deemed  proper  service.  Notice  of  such
  hearing  may  be  given  by  publishing  the  same  once  a week for two
  successive weeks, immediately prior thereto in  two  newspapers  in  the
  county  or  counties  in  which  the  lands  and properties affected are
  located, provided personal service cannot be made. Such service shall be
  made at least fifteen days prior to the date of the hearing.
    6. Assessment of damages shall be as follows:
    a. The department shall view the premises affected and at the time and
  place appointed shall hear all parties interested and such witnesses  as
  they may produce. Such hearing may be adjourned at the discretion of the
  department.
    b.  At  the  close  of such hearing, if the department shall determine
  that the occupying of the lands and properties  specified  is  necessary
  for  the  drainage  of  the lands of the petitioner, it shall assess the
  damages  to  the  person  or  persons  owning  the  same  and  fix   the
  compensation  to  be made therefor. In fixing the amount of compensation
  for lands or property to  be  taken,  the  department  shall  make  such
  allowance  or  deduction on account of any benefits which the owners may
  derive from the proposed work as the department shall  determine  to  be
  just and equitable in the premises.

    c.  A  copy  of  such determination, duly certified by the department,
  shall be filed by the department in the clerk's office of the county  or
  counties  in which such lands and properties are located. A copy of such
  determination shall  be  served  by  the  department  by  mail  on  each
  petitioner  and  on  each  owner of each parcel or on any one of several
  owners of a parcel in case there be  more  than  one,  together  with  a
  notice of the date and place of filing such certified copy in the county
  clerk's office.
    7. Review shall be as follows:
    a.  If the petitioner or petitioners feel aggrieved by the decision of
  the department, he or they may review the same as  provided  in  section
  15-0905.  Unless  such  proceeding for review shall have been instituted
  within sixty days after filing of the decision  in  the  county  clerk's
  office,  the  decision  of  the department shall be deemed final. If the
  final decision shall be adverse to the applicant, no  other  application
  to  the  department for the construction of the same works shall be made
  within one year.
    b. If the owner  or  owners  of  the  property  to  be  occupied  feel
  aggrieved  by  the decision of the department only to the extent that it
  determines the necessity for the occupation of the lands and  properties
  of  such owner or owners, he or they may review the same as provided for
  in section 15-0905. Unless such proceeding for review  shall  have  been
  instituted  within  sixty  days  after the filing of the decision in the
  county clerk's office, the decision of the department  shall  be  deemed
  final.  If  such  owner  or  owners  feel aggrieved by the assessment of
  damages made by the decision of the department he  or  they  may  apply,
  pursuant  to  the  applicable provisions of the eminent domain procedure
  law to ascertain the compensation to be made to the owner or owners  for
  the  property  to  be  taken.  Upon  the  granting  of such an order the
  proceeding shall continue  for  the  ascertainment  of  compensation  as
  provided   by  the  eminent  domain  procedure  law  as  if  acquisition
  proceedings  had  been  instituted  by  the  petitioners  in  the  first
  instance.  Such  an  application  shall save to such owner or owners the
  right to review the determination of necessity for  the  drainage  works
  made  by the department on any appeal taken to the Appellate Division by
  petitioners or owners pursuant to the provisions of the  eminent  domain
  procedure law.
    8.  If  after  the  expiration of sixty days proceedings have not been
  instituted to review the decision  of  the  department  as  provided  in
  subdivision 7 above, the petitioner or petitioners shall pay the damages
  assessed  by  the department and may thereafter enter upon such lands or
  properties for the purpose of constructing,  reconstructing,  enlarging,
  cleaning  or maintaining such drains, ditches, dikes and basins. Deposit
  of the money to the credit of the  owner  or  owners,  pursuant  to  the
  direction  of  the  department,  shall  be  deemed  a payment within the
  provisions of this section.