CHAPTER 450.
An Act to amend Chapter 61 of the Revised Code, (as amended.)
Be it enacted [by the Senate and House of Representatives of the State of Delaware in General Assembly met, SECTION 1.] That Chapter 61 of the Revised Code be and the same hereby is amended as follows, by adding thereto the following section:
SECTION 5. That whenever earth, sand, gravel, stone or other material requisite for the construction or repair of any lawful dam shall lie contiguous or adjacent to such dam, it shall and may be lawful for the owner or owners of such dam to proceed by petition, setting forth the facts, to the Court of General Sessions of the Peace and Jail Delivery of any county in term time, or to any judge thereof in vacation, upon ten days’ notice to the owner or owners of such earth, sand, gravel, stone or other material, if resident within the State, or if non-resident, to the tenant residing upon the premises. And the said court, or any judge thereof, shall thereupon by order appoint five disinterested freeholders of the county, commissioners, directing them to go upon the premises described in the said petition and assess the value of such earth, sand, gravel, stone or other material stated in the said petition to be required as aforesaid, and also to determine the damages sustained by the owner or owners thereof by reason of taking the same, and make return thereof under their hands or the hands of a majority of them, which return shall be forthwith filed in the office of the clerk of the said court in the county wherein the said proceedings shall take place, and upon the amount of damages so as aforesaid being paid unto the person or persons entitled, or deposited to their credit in the Farmers' Bank of the State of Delaware, or in any branch thereof in the county where the said proceedings shall have been commenced, it shall and may be lawful for the owner or owners of such dam to enter in and upon the premises described in the said petition, containing such earth, stone, sand, gravel, or other material, and take and remove and use the same for the construction or repair of their said dam; Provided, that if either party be dissatisfied with the amount of damages awarded, that upon notice as aforesaid and petition filed within thirty days after the said return of the commissioners, the said court or any judge thereof shall grant an order of review and appoint five other freeholders as aforesaid, who shall review the premises and re-assess the dam- ages and make return as aforesaid.
If greater damages are allowed than were, given on the first order, such increase shall be forthwith paid or deposited as aforesaid by the owner or owners of the dam, and if less damages shall be allowed, the difference between the sums so awarded shall be refunded. The costs of such review to be borne by the unsuccessful party; Provided, that proceedings for a review shall not delay the right of the owner or owners of the dam to take and use the material in question in the repair or construction of such dam, after having paid or deposited, the amount first awarded as aforesaid.
SECTION 6. That if at any time a breach in the banks of any stream upon which a lawful dam shall exist, shall occur by streams, reason of flood or from any other cause whereby the usual volume of water shall be diverted from its customary channel to the injury of the owner or owners of such dam and water power, that it shall and may be lawful for such owner or owners to enter in and upon the lands where such; breach shall have occurred and whenever it may be necessary to repair the same, and all damages which may occur unto the said premises by reason of such entry and repair shall be the application of either, party in interest in the mode appointed in the next preceding section and subject to the same provisions as to payment or deposit and review.
Passed at Dover, January 26, 1869.