Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1880-04-08
Published March %, 1891
CHAPTER 1ca.
AN ACT to provide for draining wet or swamp
lands and lead and coal mines.


Section 1. That when one or more owner or
owners OF any lsDds or lead coal mines in this
STATE snail desire to construct ditch CT drain or
bitches across the lands OF another others for
agricultural sanitary or mining purposes, and
which tends TO the benefit advantage OF ths
public, and no agreement can be made between
them and the owner or owners Of said lands, TO
make or establish ditch Or drain, the person or
persons may file petition in the circuit or county
court Of the county in which said ditch or bitches,
drain or drains shall be proposed to be construct
ed, setting forth the necessity for the same with
description of its or their proposed starting point,
route and terminus, and il 1t shall be necessary
for the drainage Of the land lead or coal mines,
OF Tor sanitary purposes or either or oil OF said
purposes that drain or ditch or dttches or other
similar work be constructed, and to the public in
terest that the work shall be constructed, the
petitioner petitioners shall state in the Pc
ttlon and shall set forth the general description
OF the same sc proposed, and shall ask for the
condemnation Of so much Of the lands as may be
sufficient to construct and build said ditch
bitches, drain or drains.
Section ? The petition shall set forth the name
or names of all persons owning the land over
which such drain, ditch or bitches IS 10 be con-
structed, owner or otherwise, as their interest
may appear therein, by the records OF the register
OF deeds OF said county, and If the name OF the
owner or owners shall not be known to said petit
TONERS, such petition shall state that fact and
pray suCh court or Judge to cause the compensa-
lion, as hereinafter provided, to be paid to the
owners Of such land, or to the person or persons
entitled to the same.
Section 3. That if the proceedings seek TO af-
feet the property Of minors or persons under
guardianship, idiots lunatics, the guardian
shall be made party defendant to the proceedings,
if any, md, if none the court shall appoint such
TO defend; and If a married woman, the husband
shall be made party, ii known; and parties in
terestcd whose names are unknown, shall be
made parties defendants by the name and dcs-
cr1plOn OF unknown owners, but IN oil such cases
an affidavit shall be filed by one of the petitioners
or some other credible person. setting forth that
after due diligence and inquiry stating such dill
gence, he Is unable to learn the name ofthe owner
or owners of such land.
Sections. Said petition may be presented to
the Judge in vacation, and the Judge shall fix upon
q day when he will hear the same, and shall Or
der the issuance of q summons to be served upon
all the persons made defendants IN such proceed
lngs, which summons shall be served upon each
of said owners, prayed TO be made defendants in
such proceedings, in the same manner required
for the service OF summons in the circuit court in
this state in civil action, which summons shall
be served on each of said owners least ten days
before the hearing OF such petition, and shall be
| Issued by the clerk of the circuit court for tbs
county where such lands are situated
Section s. Said cause may be heard by such
Judge in vacation as well as in term time, but no
cause shall be heard earlier than ten days after
service upon defendants, or ten days after the last
day OF the publication Of said summons, when
service is required to be made by publishing
copy thereof, to bring in nonresident or unknown
owners.
Section G. That any number of separate par
cells of land situat ed in the same county may be
included in one petition, and the owners thereof
may be Joined as petitioners or defendants there
in; and the finding Of the necessity use such
land for the purpose Of constructing said ditch or
drain, with the compensation for each owner,
may be found and assessed separately by the
same jury
Section z. Amendments TO the petition or any
part of the records in the case, may be permitted
whenever necessary 10 fair trial and final deter
mlnanon OF the questions involved
Section 8. If any defense shall be made to the
petition, the defendant defendants shall plead,
answer or demur to said petition as in chancery
proceedings. in this state, and a general repl1-
cation by the petitioner or petitioners shall be
suthclent TO make up the issues between the
parties.
Section 9. Should it be necessary at any time
or stage of the proceedings to bring new party
before the judge or court the judge shall have the
power TO make such rule or order in relation
thereto may be deemed reasonable and just,
and shall have power to make all such necessary
rules and orders for the notice to parties, OF the
tendency of the proceedings, and TO issue all
necessary process for the execution of orders and
Judgments, as may be considered necessary by the
court.
Section 10. At the time fixed for nearing the
petition, the judge, if there shall be issue,
either of law or fact, made by demurrer
swer TO said petition shall proceed to the trial of
such Issue, and il issue of law and the same
shall be decided in favor Of the defendant or de-
PENDANTS nterp0sing such demurrer, and the pc
titioners shall not amend their petition, as pro-
Eded herein, or the issue of fact, except the issue
denying that the construction of such ditch
drain tends 10 tho benefit or advantage of the
public, as to whether it Is necessary to of
defendants or either of defendants land in tho
construction of such ditch drain decided in IA
vor of said defendant or defendants, all proceed
ings on said petition shall be dismissed, And in
or there snail be no appearance by SUCH deten-
dants, the judge shall make an order that the
clerk draw jury, which order shall fix the time
and place at which such Jury is required to ap
pear.
Section II. The clerk shall Immediately, on ro
ce1pt of such order, proceed to select jury, by
writing the names of forty-eight disinterested
1Teehodcrs OF the county, on torty-e1ght separate
slips of paper and in the presence of two dlsnter-
estcd frecLolders, in the same manner provided by
law for drawing jurors for the circuit court draw
and the clerk shall thercupon issue venire direct
ed to the sheriff of the county, commanding him
to summon the twelve persons so selected as jul
such order.
Section IL. Tho petitioner or petitioners and
every party TO the proceedings interested in as,
Certaining the amount of compensation, shall
have the same right of challenge of jurors as IN
other cases IN the courts of this state. If the
panel be not filled by reason of non attendance
being exhausted by challenge, the judge hearing
such petition shall designate by name the neces-
sary number of persons of proper qualifications,
and the clerk shall issue another Venire return
able instanter, until the jury be filled;
Section 13. The following oath shall be admin
1stered TO the jury, when so selected by the judge
or clerk of said court: EEYou and each of you, do
soemnly swear Cor affirm that you will well and
truly ascertain and report just compensation to
the owners and each owner of the property sought
TO be used by petitioner in this case, and TO each
person Interested therein, according to the facts
in the case as the same may appear by the evil
uCnce and the law given to You by this court, and
that you Will truly report the same, SO help you
Section IA. The jury shall go upon the land
sought to be used in person, and examine the
same, and after hearing the evidence in the case,
that may be offered, make its report IN writing
10 the court the amount of damages to be caused
to the land separately, giving brief description
OF each piece by reason of using the same for the
purpose sought iii the petition, and the just
pensat1on to be allowed the owner owners by
reason Of using the same; provided, that in no
case shall the size or capacity of such ditch OF
drain be greater than what is actually necessary
to carry away the water to be conveyed through
the same. Said report shall be subject to amend
mcnt by the jury under the direction Of the court,
as the case may be, to clearly set forth and
show the findings Of the jury therein.
Section 10. That in case the owner Of any land,
made defendant in said proceeding, shall in his
answer, deny that it is necessary to such land
in the construction of said ditch or drain, or that
the construction thereof will not tend TO the ben
eilC or advantage to the public the court shall di-
rect such issue to be tried by the jury aforesaid,
and shall make all needful rules Tor the trial of
he same, and the jury IN its report shall report its
hndtdgs thereon; that it finds such issue issues
Tor the defendant or against the defendant.
Section IL. The judge or court shall upon such
report, proceed To adjudge and make such order
as 10 right and justice shall pertain ordering the
petitioner or petitioners or persons authorized by
law, 10 enter upon said property and the use of
| the same, upon the petitioner or petitioners OF
other persons interested, paying the full compen
sations ascerained, as aforesaid if any is found
by the jury, and such order, with evidence OF pay
ment, shall constitute complete justification for
the taking OF such property for the purposes afore-
| said.
Section II. The court may in case said jury
shalI nave reported any portion of such ditch or
| drain TO be constructed by the owner or owners,
! adjudge and enforce such report by the judgment
! of the court, which Judgment may be IN the al
| Tentative, that such owner or owners construct
the same in the time fixed pay the cost of con-
| structing the same, in such report set forth:
provided, no owner shall be required TO construct
any often or drain, or pay anything for the same,
across land not actually occupied by him.
Section Is. In all cases IN either the circuit or
county courts or before the circuit or county
m he ~ ssnrl from ha