Amendment of 1857. - The City Council shall have power to layout public squares or grounds, streets, alleys, lanes, or highways, and to make wharves in the river, and alter, widen, contract, straighten, and discontinue the same. They shall cause all streets, alleys, lanes, highways, or public squares or grounds laid out by them to be surveyed, described, and recorded in a book to be kept by the Clerk, showing particularly the proposed improvements and the real estate required to be taken therefor; and the same, when opened and made, shall be public highways.
Whenever any street, alley, lane, highway, or public square or ground is laid out, altered, widened, or straightened by virtue hereof, the City Council shall give notice of its intention to appropriate and take the land necessary for the same, to the owner or owners thereof, by publishing said notice for 10 days in some newspaper published in said City; at the expiration of which time they shall choose, by ballot, three disinterested freeholders residing in said City as commissioners to ascertain and assess the damages and recompense the owners of such lands respectively, and at the same time determine what persons will be benefited, and assess the damages and expenses thereof on the real estate of persons benefited in proportion as nearly as may be, to the benefits resulting to each. A majority of all the Aldermen authorized by law to be elected shall be necessary to the choice of such commissioners; provided, that the provisions of this section shall not apply in any case where such street or alley has already been ordered to be opened, and the damages are not yet paid.
The commissioners shall be sworn faithfully to execute their duties according to the best of their ability. Before entering upon their duties they shall give notice to the persons interested, of the time and place of their meeting and for the purpose of viewing the premises and making their assessment, at least 10 days before the time of such meeting, by publishing the same in some newspaper published in said City. They shall view the premises, and, in their discretion, receive any legal evidence, and may adjourn from day to day.
If there should be any building standing, in whole or in part, upon the land to be taken, the commissioners, before proceeding to make their assessment, shall first estimate and determine the whole value of such building to the owner, aside from the value of the land and the injury done him in having such building taken from him; and secondly, the value of such building to him to remove.
At least five days' personal notice shall be given to the owner, of such determination, when known, and a resident of the City, or left at his usual place of residence; if not known, or a non-resident, notice to all persons interested shall be given by publication for 10 days in some newspaper of said City. Such notice shall be signed by the commissioners; and specify the building and the award of the commissioners, it shall also require parties interested to appear on a day therein named, or give notice of their election, to the City Council, either to accept the award of the commissioners and allow such building to be taken with the land condemned or appropriated, or of their intention to remove such building at the value set thereon by the commissioners to remove. If the owner shall agree to remove the building, he shall have such time for the removal as the City Council may allow.
If the owner refuses to take the building at the value to remove, or fails to give notice of his election as aforesaid, within the time prescribed, the City Council shall have power to direct the sale of such building at public auction for cash, giving 10 days' public notice of the sale. The proceeds of the sale shall be paid to the owner, or deposited to his use.
The commissioners shall thereupon proceed to make the assessment, and determine and appraise to the owner or owners the value of the real estate appropriated for the improvement, and the injury arising to them respectively from the condemnation thereof, which shall be assessed to such owners respectively as damages, after making all due allowances therefrom for any benefit which said owners may respectively derive from such improvement. In the estimate of damage to the land, the commissioners shall include the value of the building (if the property of the owner of such land) as estimated by them as aforesaid, less the proceeds of the sale thereof, or if taken by the owner, at the value to remove; in that case they shall only include the difference between such value and whole estimated value of such building.
If the land and buildings belong to different persons, or if the land be subject to lease or mortgage, the injury done to such persons respectively may be awarded to them by the commissioners, less the benefits resulting to them respectively from the improvement.
Having ascertained the damages and expenses of such improvement as aforesaid, the commissioners shall thereupon apportion and assess the same, together with the costs of the proceedings, upon the real estate by them deemed benefited, in proportion to the benefits resulting thereto from the improvements, as nearly as may be, and shall describe the real estate upon which their assessment may be made. When completed, the commissioners, shall sign and return the same to the City Council within 40 days of their appointment.
The Clerk shall give 10 days' notice in some newspaper of said City that such assessment has been returned, and on a day to be specified therein, will be confirmed by the City Council, unless objections to the same are made by some person interested. Objections may be heard before the City Council, and the hearing may be adjourned from day to day. The Council shall have power, in their discretion, to confirm or annul the assessment, or refer the same back to the commissioners. If annulled, all the proceedings shall be void. If confirmed, an order of confirmation shall be entered, directing a warrant to issue for the collection thereof in accordance with the provisions of any ordinance then in force regulating the collection of such assessments. If referred back to the same or other commissioners, they shall proceed to make their assessments and return the same in like manner, and give like notices as herein required in relation to the first, and all parties in interest shall have the like notices and rights, and the said City Council shall perform like duties, and have like powers in relation to any subsequent determination as are herein given in relation to the first.
The City Council shall have power to remove commissioners, and from time to time appoint others in the place of such as may be removed, refuse, neglect, or be unable from any cause to serve.
The land required to be taken for the making, opening, or widening any street, alley, lane, or other highway, shall not be appropriated until the damages awarded therefor to any owner thereof, under this act, shall be paid or tendered to such owner or his agent, or in case the said owner or his agent can not be found in said City, deposited to his or their credit in some safe place of deposit, other than the hands of the Treasurer, and then, not before such lands may be taken and appropriated for the purpose required in making such improvement, and such streets, alleys, lanes, highways, and squares may be made and opened.
When the whole of any lot, or parcel of lands, or other premises under lease or other contract shall be taken for any of the purposes aforesaid by virtue of this act, all of the covenants, contracts, and engagements between landlord and tenant, or any other contracting parties touching the same or any part thereof, shall, upon confirmation of such report, respectively cease and be absolutely discharged. When part only of any lot or parcel of land, or other premises under lease or other contract shall be taken for any of the purposes aforesaid, all the covenants, contracts, agreements, and engagements respecting the same, upon confirmation of such report, shall be absolutely discharged as to the part thereof so taken, but shall remain valid as to the residue thereof, and the rents, considerations, and payments reserved, payable and to be paid for, or in respect to the same, shall be so proportioned as that the part thereof justly and equitably payable for such residue thereof, and no more, shall be paid or recoverable for, in any respect of the same.
Any person interested may appeal from any final order of the City Council for opening or widening any street, alley, lane, public ground, or highway, to the Circuit Court of Scott County, by notice, in writing, to the Mayor or Clerk, at any time before the expiration of 20 days after the passage of such final order. In case of appeal, the City Council shall make return within 30 days after notice thereof, and the court shall, at the next term after return filed in the office of the Clerk thereof, hear and determine such appeal, and confirm or annul the proceedings. Upon trial of the appeal, all questions involved in the proceedings, including the amount of damages, shall be open to investigation, by deposition or oral testimony, and the burden of proof shall, in all cases, be upon the City to show that the proceedings are in conformity with this act.
In any cases when any known owner, residing in said City, or elsewhere, shall be an infant, and any proceeding may be had under this act, the Circuit Court or the Judge thereof, may, upon the application of the City Council, or such infant, or his next friend, appoint a guardian for such infant, taking security from such guardian for the faithful execution of such trust; and all notices and summonses required by this act shall be served on such guardian.
In all cases where there is no agreement to the contrary, the owner or landlord, and not the occupant or tenant, shall be deemed the person who ought to pay and bear the assessment made for the expense of any public improvement. Where any such assessment shall be made upon, or paid by any person, when, by agreement, or by law, the same ought to be borne or paid by any other person, it shall be lawful for the one so paying to sue for, and recover of the person bound to pay the same, the amount so paid, with interest. Nothing herein contained shall impair, or in any way affect, any agreement between any landlord and tenant, or other persons, respecting the payment of such assessments.
In any case, where a grade has been established by the City Engineer, and any person has built or made any improvements on a street according to said grade, and the City authorities shall alter said grade in such a manner as to injure or diminish the value of said property, said City shall pay to the owner or owners of said property so injured, the amount of such damage or injury.
Said damage or injury shall be assessed by three persons - One of whom shall be appointed by, the Mayor of said City, one by the owner of the property, and one by these two so appointed, or in case of their disagreement, by the Mayor and owner; or, in case of their disagreement, by the City Council; provided, that if the owner of such property shall fail to appoint one such appraiser in 10 days from the time of receiving notice so to do, then the City Council shall appoint all said appraisers, and no such alteration of grade shall be made until said damages so assessed shall have been paid or tendered to the owner or owners of the property so injured or damaged.
The City Council shall have power, by ordinance, to levy and collect a special tax on the owners of lots on any street, lane, avenue, alley, or block, or the side of a block, fronting or lying on any alley, or part of any street, lane, avenue, or alley, according to their respective fronts owned by them, for the purpose of paving or grading the sidewalks; grading, paving, or macadamizing such streets, lanes, avenues, and alleys, or parts thereof, and for lighting the same, on being petitioned so to do by the owners of more than half the property so to be taxed.