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shall determine the total cost, damages and other expenses, and divide the same among the several tracts of land affected, in their respective counties, in the proportion determined by the board of viewers, and shall certify to the county assessor or assessors if in more than one county, a list of the lands affected, the total amounts to be assessed against each, with all credits for work or damages due the owner of each tract, with the net assessment of each, and the assessor or assessors if in more than one county shall enter the said net assessment against each of the several tracts of land lying within his county in the same manner as for other taxes, and the county treasurer of each county where such improvement or part thereof is to be made, shall · collect the same and reimburse the county for all moneys expended or expenses incurred subject to the right of appeal to the district court as to matters herein as in cases of appeal from disallowance of claims by board of county commissioners. [L. '03, p. 213, $10.
3198. Acceptance—Vouchers. Sec. 34. Upon the proper acceptance by the engineer or engineers if such improvement is in more than one county the board of county commissioners of each county where such improvement is located, shall couse a voucher to be drawn upon the county treasurer for the amounts due on contracts, for damages and other expenses. [L. '03, p. 213, $11.
3199. Compensation of engineers and viewers.—Sec. 35. Each of the members of the board of viewers shall receive their necessary expenses and three dollars per day for services, and the engineers shall receive their necessary expenses and six dollars per day for each day necessarily employed. L. '03, p. 213, $12.
3200. Right of eminent domain.-Sec. 36. The right of eminent domain shall extend to all improvements constructed under this act. [L. ’03, p. 213, $13.
[See Chapter 45. Eminent Domain.]
3201. Disposition of water drained.--Sec. 37. All waters gathered by such drainage improvement shall be the property of those from whose lands the same is taken by such drainage canal, and the same shall be pro rated among the different land holders from which such water is taken according to the cost of the improvement assessed against each one. [L. '03, p. 213, $14.
’03 3202. Reservoirs—Right to water-Right of way-Condemnation-Embankments over ten feet submit to county board.—Sec. 38. Persons desirous to construct and maintain reservoirs, for the purpose of storing water, shall have the right to take from any of the natural streams of the state and store away any inappropriated water not needed for immediate use for domestic or irrigating purposes; to construct and maintain ditches for carrying such water to and from such reservoir, and to condemn lands for such reservoirs and ditches in the same manner provided by law for the condemnation of lands for right of way for ditches; Provided, No reservoir with embankments or a dam exceeding ten feet in height shall be made without first submiiting the plaus thereof to the county commissioners of the county in which it is situated, and obtaining their approval of such plans. [G. S., $1724; L. ’79, p. 106, $38.
[Is the above section superseded by section 3205?]
3203. Conducting water in natural streams—Taking out-Allowance for seepage—How determined.—Sec. 39. The owners of any reservoir may conduct the water therefrom into and along any of the natural streams of the state, but not so as to raise the waters thereof above ordinary high water mark, and may take the same out again at any point desired, without regard to the prior rights of others to water from said stream; but due allowance shall be made for evaporation and seepage, the amount to be determined by the commissioners of irrigation of the district; or, if there are no such commissioners, then by the county commissioners of the county in which the water shall be taken out for use. [G. S., $1725; L. '79, p. 107, $39.
[See also section 3225.]
3204. Liability of owners for damage.—Sec. 40. The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs. [G. S., $1726; L. '79, p. 107, $10.
3205. Construction of reservoirs-State engineer supervise.Sec. 41. No reservoir of a capacity of more than seventy-five millions cubic feet of water, or having a dam or embankment in excess of ten feet in vertical height, and covering an area of more than 20 acres shall hereafter be constructed in this state, except the plans and specifications of the same shall' first be approved by the state engineer; and the state engineer shall act as consulting engineer during the construction thereof, and shall have authority to require the material used and the work of construction to be done to his satisfaction; and no work shall be deemed complete under the provisions of this act until the state engineer shall give to the owners of such structures a written statement of the work of construction and the full completion thereof together with his acceptance of the same, which statement shall specify the dimensions and capacity of such reservoir or reservoirs. [L. ’99, p. 31.4, $1.
3206. Cost of inspection and supervision paid by owner.—Sec.
The owners of such reservoirs shall pay to said state engineer his actual expenses incurred in making personal inspection, and five dollars per day and expenses to any deputy appointed by him to attend to such supervision when necessarily employed for such purpose. [L. '99, p. 314, $2.
3207. Engineer determine amount of water to be stored.—Sec. 43. The state engineer shall annually determine the amount of water which it is safe to impound in the several reservoirs within this state and it shall be unlawful for the owners of any reservoir to store in said reservoir water in excess of the amount so determined by the state engineer to be safe. [L. '99, p. 315, $3.
3208. Water commissioner withdraw excess water-Close inlets.—Sec. 44. In the event of the owners of any such reservoir impounding water therein to a depth greater than that determined by the state engineer to be safe, it shall be the duty of the water commissioner of the district wherein such reservoir shall be located, to forth with proceed to withdraw from said reservoir so much of the water so impounded therein as shall be in excess of the amount so determined by the state engineer to be safe, and shall close the inlets to the same so as to prevent said reservoir from being refilled to an amount beyond what said state engineer shall have designated as being safe. In the
event of the owners of said reservoir, or any other person or . persons, interfering with the water commissioner in the dis
charge of said duty, the said water commissioner shall call to his aid such persons as he deems necessary, and employ such force as the circumstances demand to enable him to comply with the requirements of this section. [L. '99, p. 315, $4.
3209. Complaint that reservoir is unsafe—Duty of engineer. -Sec. 45. L'pon complaint being made to the state engineer by three or more persons residing or having property in such a location that their homes or property would be in danger of destruction or damage in the event of a flood occurring on account of the breaking of the embankment of any reservoir within the state, that said reservoir is in an unsafe condition, or that it is being filled with water to such an extent as to render it unsafe, it shall be the duty of the state engineer to forth with examine said reservoir and determine the amount of water it is safe to impound therein. If upon such examination, the state engineer shall find that said reservoir is unsafe, or is being filled with water to such an extent as to render it unsafe, it shall be his duty to immediately cause said water to be drawn off from said reservoir, to such an extent as will, in his judgment, render the
If water is then flowing into said reservoir, he shall cause the same to be discontinued: [L. '99, p. 315, $5.
3210. Engineer may use force—Violation of engineer's order. -Sec. 46. The state engineer is hereby authorized and em powered to use such force as is necessary to perform the duties required of him in the preceding section, and to have and exercise all of the powers ('onferred upon the water commissioner by section 4 of this act. If, after any of such reservoirs shall have been examined by said state engineer, the owners thereof, or any other person or persons, shall fill or attempt to fill them, or either of them to a point in excess of the amount the state engineer shall have determined to be safe, then it shall be the duty of the water commissioner of the district wherein such reservoir is located proceed as is directed by section 4 of this act. [L. '99, p. 316, $6.
[Section 4 above referred to is section 3208. ]
3211. Expense of examination-By whom paid.-Sec. 47. The persons calling upon the state engineer to perform the duty required of him by section 5 hereof shall pay him mileage in advance at the rate of ten (ents per mile for each mile actually and necessarily traveled in going to and from said reservoir, and should the state engineer find upon examination that such reservoir is in an unsafe condition, the owners thereof shall be liable for all expenses incurred in such examination. [L. '99, p. 316, $7.
[Section 5 above referred to is section 3209.]
3212. Appeal from decision of engineer.—Sec. 48. In the event of either party being dissatisfied with the decision of the state engineer, they may take an appeal to the county, or district court of the county wherein said reservoir is located, and said court shall hear and determine the matter summarily at the earliest practical time without written pleadings or the aid of a jury; subject to the right of either party to take an appeal or writ of error as in other civil cases; Provided, That the judg. ment of the state engineer shall control until final determina tion of the cause. [L. '99, p. 316, $8.
3213. Owners liable for damages in case of breakage of reservoir.-Sec. 49. None of the provisions of this act shall be (onstrued as relieving the owners of any such reservoir from the payment of such damages as may be caused by the breaking of the embankments thereof, but in the event of any such reservoir overflowing, or the embankments, dams or outlets breaking or washing out, the owners thereof shall be liable for all damage occasioned thereby. L. 99. p. 316, 9.
3214. Violation of act—Penalty-Disposition of fines.-Sec. 50. Any reservoir company failing or refusing, after ten days' notice in writing having been given, to obey the directions of the state engineer as to the construction or filling of any reservoir as herein provided, shall be subject to a fine of not less than fifty dollars, for each offense, and each day's continuance after time of notice has expired shall be considered a separate offense; such fines to be recovered by civil action in the name of the people, by the district attorney, upon the complaint of the state engineer, and in the county where the injury complained of occurred, the proceeds of all fines, after payment of costs and charges of the proceedings, shall be paid into the county treasury for the use of the general fund of the county. [L. '99, p. 317, $10.
3215. Survey of reservoir site on arid land.Sec. 51. It shall be the duty of the county surveyor of each county within this state upon the request of the owner of ten or more acres of arid land lying in such county, to locate and survey an available site for a reservoir upon such land, such reservoir to be used for the storage of water to irrigate the land contiguous thereto and such reservoir to be of a capacity to hold sufficient water to properly irrigate not less than ten acres of such land. [L. '03, p. 262, $1.
3216. Construction of reservoir-County surveyor supervise. -Sec. 52. Within thirty (30) days after such location and survey by the county surveyor, the owner of such land shall begin the construction of such reservoir and shall work continuously thereon until the completion thereof and all of such work of construction and the construction of such dam or dams as may be necessary, and the construction of the outlet to such reservoir shall be done under the direction and supervision of such county surveyor. [L. '03, p. 262, $2.
3217. Completion-Plat filed—Contents.—Sec. 53. l'pon the completion of the reservoir it shall be the duty of the county surveyor to file with the board of county commissioners of such county, a map or plat of the land upon which such reservoir is located; describing such land by legal subdivisions and showing thereon the name of the owner, the number of acres of arid land contiguous to such reservoir claimed by such owner: the size or water capacity in cubic feet of such reservoir; the num ber of acres of land capable of being irrigated bị such reservoir ; the source and means of supplying such reservoir with water, and indicating the point of location upon the land of such reser. voir. [L. 03, p. 263, $3.
3218. Approval of plat-Duty of owner.-Sec. 54. It shall be the duty of such board of county commissioners to, within sixty