Part 3 — ACQUISITION, OPENING AND CLOSING PROCEDURES

The acquisition, opening, laying out, extending, widening, straightening or closing up, in whole or in part, of public streets, squares, lanes, alleys, courts and places, and the acquisition of any and all property, rights- of-way or easements, or of any interest therein necessary or convenient for the purpose of constructing thereon any of the work or improvements of the character mentioned in the Improvement Act of 1911 of the state, as in effect on January 1, 1936, where the whole or any part of the cost thereof is to be paid by special assessment on the lands benefitted thereby, shall be done according to the procedure provided therefor in and by this part of this chapter.

(Prior code § 2600.7.)

There is hereby vested in the city council the powers provided in Section 1 of that certain act of the legislature of the state approved March 24, 1903, designated therein and commonly known as "Street Opening Act of 1903," as amended prior to and as said act was in effect on January 2, 1936; and in addition thereto, there is hereby vested in the city council, whenever the public interest or convenience may require, the full power and authority to acquire by condemnation any and all property, rights-of-way or easements, or any interest therein, necessary or convenient for the purpose of constructing thereon any of the work or improvements of the character mentioned in the Improvement Act of 1911 of the state, as said act was in effect on January 1, 1936.

(Prior code § 2600.8.)

The work aforesaid shall be done and assessments or reassessments for the cost and expenses of same shall be made, confirmed and collected according to the procedure set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11,12, 13, 14, 15, 16, 17, 18, 18a, 19, 20, 20a, 21, 22, 23, 24, 25, 26, 26a, 27, 28, 29, 30, 31, 32, 33, 33a, 34, 35, and 37 of the Act cited in Section 14.36.360, as amended prior to and as the said act was in effect on January 1, 1936.

(Prior code § 2600.9.)

Having acquired jurisdiction as provided in Section 4 of the Act cited in Section 14.36.360, if the proposed work is for closing up and it appears that no assessment is necessary, the council shall by resolution so declare, and order the closing up and abandoning of the street or streets or portion of street or streets involved. If it appears that an assessment is necessary for the proposed work of closing up, then the

council shall by resolution determine the amount thereof and order the making of a diagram and assessment and shall proceed as provided in Section 2 of the said act as so amended.

(Prior code § 2600.10.)

In addition to the procedure elsewhere provided in this Part 3 as the method of determining the compensation for all property to be actually taken and the basis of damage to property not actually taken but injuriously affected, in all cases where such damages are allowed by the provisions hereof, and anything elsewhere in this part of this chapter to the contrary notwithstanding, the plaintiff and all parties owning and claiming an interest in any parcel or parcels of land sought to be acquired may enter into a written stipulation for the entry of an interlocutory judgment relating to such parcel or parcels of land, agreeing upon the actual value of any property to be actually taken and the amount of damages to property not actually taken but injuriously affected, in which case said stipulation shall be in the manner and form, and such proceedings shall be had and taken in regard to the filing of same, the giving of notice, the filing of objections, the intervention of parties, the hearing of same and the entry of interlocutory decrees according to the procedure set forth in Sections 33a and 33b of the certain Act of the legislature of the state approved May 23, 1925, designated therein and commonly known as "Acquisition and Improvement Act of 1925," as the same was amended prior to and was in effect on January 1, 1932. Sections 29 and 32 of the said Act as referred to in said Sections 33a and 33b thereof shall be deemed and are hereby declared to be Sections 8 and 11 respectively of the Street Opening Act of 1903, as above adopted; provided, however, that the notice therein provided to be given by the clerk of the court need not contain a description of said assessment district but may refer therefor to the resolution of intention, or to the resolution finally establishing the boundaries of said district after the hearing thereon heretofore provided, giving the date of the adoption of said resolution and the place where the same is on file.

(Prior code § 2600.11.)

In any action in eminent domain brought under this chapter, the city may take the immediate possession and use of the property therein sought to be acquired, pursuant to Section 14 of Article I of the Constitution of this state, in accordance with the following procedure, which is provided therefor.

(Prior code § 2600.12.)

If the legislative body conducting the proceedings shall by resolution determine that the public necessity and convenience require the taking of immediate possession and use of all or any portion of the property sought to be condemned therein, pursuant to Section 10 of said Street Opening Act of 1903, as above adopted, then the city engineer shall make and file in said action an affidavit as to the amount of compensation and damages reasonably adequate for securing payment to the owners, and the court may ex parte make an order in said action adjudging the amount reasonably adequate to secure to the owner of the property sought to be taken immediate payment of just compensation for such taking, and damages incident thereto, as soon as the same can be ascertained according to law, and directing the plaintiff to

deposit the said sum of money with the court. Upon depositing the said money so ordered, the court shall make an order in said action adjudging that the plaintiff is entitled to have and take and awarding to plaintiff immediate possession and use, for the purposes and uses described in the complaint therein, of all or such portions of the property sought to be condemned therein for which immediate possession and use is sought and security furnished.

(Prior code § 2600.13.)

Upon obtaining the order mentioned in Section 14.16.410, the city, or any contractor for any improvement contemplated in any proceedings pending or instituted before the council, whose contract includes work or improvement upon any or all of the property covered by such order for immediate possession, shall have the right to enter upon and construct thereon the improvements included in the contract.

(Prior code § 2600.14.)

The city council shall have the power to and may advance such amount as is required by the court to be deposited to obtain such immediate possession and use, and may reimburse the treasury for the amount so advanced from any assessment thereafter levied and collected from the sale of any bonds thereafter issued under the proceedings. Such amount may be advanced from either the general fund or from any fund available for the purpose of acquisition of public ways or property, or from any revolving fund created and administered as hereinafter provided.

(Prior code § 2600.15.)

In addition to the foregoing method for obtaining the amount necessary for such deposit required by the court in order that immediate possession and use may be had, the city council may make and levy an assessment, and issue and sell bonds as provided in Part 4 of this chapter. In such event, the city attorney shall report in writing to the city council the amount required to be so deposited. The city council may thereupon direct the superintendent of streets to make and file an assessment and diagram in which event proceedings shall be had in accordance with the preceding provisions of this Part 3 of Chapter 14.16, unless bonds are to be issued pursuant to Part 7, Plan C of this chapter, in which event proceedings shall be had as therein provided.

(Prior code § 2600.16.)

A.

An appeal from the interlocutory judgment, or from any order granting or denying a new trial, or granting or denying a motion to vacate said judgment and enter another and different judgment, shall stay all proceedings in the trial court upon the judgment or order appealed from, including execution and any right

to move for a dismissal of the action. An appeal by plaintiff from a portion of the judgment shall stay all proceedings upon the whole judgment.

B.

In the event, upon an appeal by plaintiff, that plaintiff shall elect, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and shall take such proceedings as are required therefor herein, and shall have paid into court such moneys as may be required therefor by the court, then and in that event the money or deposit shall not be subject to withdrawal either by the plaintiff or defendant until after the entry of the final decree of condemnation, and then only by order of the court in which it is deposited, on motion made therefor. No defendant shall receive said moneys during said time, and in the event he shall receive same or any part thereof, then the same shall be recoverable in the name of the plaintiff in an action upon a common count for money had and received, which may be filed at any time before the expiration of five years after the final determination of said litigation. In any event, the right of appeal shall continue in plaintiff, and said action shall not become moot or abate or be subject to dismissal, because of either the taking of said possession, the deposit of said moneys, or the payment thereof to defendant. For the purposes of this section, each separate parcel of property to be taken shall be declared the subject matter of a several action.

(Prior code § 2600.17.)

If the city council shall in its resolution of intention find that public interest and necessity so require, it may acquire lands in excess condemnation pursuant to Section 14 1/2 of Article I of the Constitution of the state. It is also authorized and empowered to sell and dispose of any such lands so acquired in excess condemnation in the manner and form hereinafter provided for the sale of property acquired by the city for the nonpayment of assessments.

(Prior code § 2600.18.)

As an alternative to the foregoing procedure of forthwith directing the filing of a suit in eminent domain, the proceedings set forth in Sections 14.16.440 through 14.16.620 may be had.

(Prior code § 2600.19.)

The city council may provide in the resolution ordering the work, for the appointment of three commissioners to assess the damages.

(Prior code § 2600.20.)

Such commissioners must be residents of the city, over the age of twenty-one years, disinterested, and be acquainted with the values of real property and improvements in the city; provided, however, that the city council may order that all the duties of the commissioners shall be performed by the city manager, and that all clerical work shall be performed by the superintendent of streets, who shall receive no compensation therefor other than the salaries of their respective offices.

(Prior code § 2600.21.)

Each commissioner shall file with the city clerk an oath of office, and a bond to the city in a sum to be fixed by the city council, to faithfully and impartially perform and discharge the duties of his office.

(Prior code § 2600.23.)

For their services, said commissioners shall receive such compensation as the city council may determine, not to exceed two hundred dollars per month each, for a term of not to exceed three months, unless extended by order of the city council.

(Prior code § 2600.24.)

The city council may at any time remove any and all said commissioners for cause, upon five days' notice by mail and hearing, and may fill any vacancies occurring for any cause.

(Prior code § 2600.22.)

The city council shall furnish the commissioners with such reports on the title to property which they are to appraise, and such assistance and incidentals as the city council shall deem necessary and proper.

(Prior code § 2600.25.)

Said commissioners shall proceed to assess the compensation and damages within the time and in the manner hereinbefore provided therefor with reference to referees appointed by a court.

(Prior code § 2600.26.)

Said commissioners shall make and file with the city clerk a written report of their findings, and of their fees and necessary expenses, within three months after the date of their appointment; provided, however, that the time so allowed may be extended by the city council upon good cause shown.

(Prior code § 2600.27.)

Said report shall specify each lot, subdivision or piece of property taken or injured by the improvement, together with the name of the owner or claimants thereof, and of each person interested therein as lessees, encumbrancers, or otherwise, so far as known to them, and the particulars of their interest, so far as same can be ascertained, and the amount of compensation or damage, as the case maybe.

(Prior code § 2600.28.)

If in any case the commissioners find that conflicting claims of title exist, or shall be in ignorance or doubt as to the ownership of any lot of land or of any improvements thereon, or of any interest therein, it shall be set down as belonging to unknown owners. Error in the designation of the owner or owners of any land or improvements, or of the particulars of their interest, shall not affect the validity of the assessment or of the condemnation of the property.

(Prior code § 2600.29.)

Upon said report being filed, the city clerk shall give notice, by two publications in a newspaper printed and published in the city, of a time and place, which shall be not less than ten days after the first publication thereof, when said report shall be heard, and requesting all persons interested to show cause, if any, why said report should not be confirmed.

(Prior code § 2600.30.)

All objections shall be in writing, and filed with the city clerk not later than the hour fixed for said hearing.

(Prior code § 2600.31.)

At the time set or at such other time as the hearing may be adjourned to, the city council shall hear such objections and pass upon the same, and shall proceed to pass upon said report, and may confirm, correct, or modify the same, or may require the commissioners to make a new, or further report, which shall be filed, notice given and hearing had, as in the case of the original report, provided that the time within which same shall be made may be specified by the city council.

(Prior code § 2600.32.)

The clerk shall forthwith deliver to the superintendent of streets of the city, a certified copy of said report as finally confirmed and adopted by the city council.

(Prior code § 2600.33.)

Upon the final confirmation of said report by the city council, the city engineer shall forthwith make and deliver a diagram to the superintendent of streets, and the superintendent of streets shall forthwith make and file with the city clerk, an assessment to cover the compensation and damages and the fees and incidental expenses shown therein, which shall be made, confirmed, levied and collected, in the manner hereinbefore provided in the preceding sections of this part, unless bonds are to be issued pursuant to Part 7, Plan C of this chapter, in which event proceedings shall be had as therein provided.

(Prior code § 2600.34.)

The owner of any property assessed, who is entitled to compensation under the report, may demand of the superintendent of streets that such assessment be offset against the amount to which he is entitled under the report. Such offset shall be had in the manner hereinbefore provided by Section 14.16.370 of this part.

(Prior code § 2600.35.)

The superintendent of streets shall, from time to time, pay over to the city treasurer all moneys collected by him on account of such assessments. The city treasurer shall, upon receipt thereof, place the same in a separate fund to be designated therefor. Payments shall be made from said fund by warrants signed by the auditor and city manager.

(Prior code § 2600.36.)

When sufficient money is in the hands of the city treasurer, in the fund designated therefor, to pay for the lands and improvements taken or damaged, after deducting all payments by offset, said manager shall draw and deliver to the superintendent of streets warrants therefor, and it shall be the duty of the superintendent of streets to notify the owner, possessor or occupant of the land and improvements thereon to whom compensation and damages shall have been awarded, that warrants have been drawn for the payment of same, and that they can receive same at the office of said superintendent of streets upon tendering conveyances of the property to be taken; such notification, excepting to unknown owners, to be made by depositing a notice in the post office, postage prepaid, addressed to his last known place of residence. If the owner fails to comply within thirty days after mailing said notice, the warrant shall be deposited with the city treasurer to be delivered upon the tender of such conveyance, unless judgment of condemnation shall be had, in which event the warrant shall be canceled.

(Prior code § 2600.37.)

If any owner of land to be taken neglects or refuses to accept the warrant drawn in his favor, as aforesaid, the city council shall have continuing jurisdiction to direct an action to be brought by the city attorney for

the condemnation of the property necessary or convenient to be taken therefor, as in this part hereinbefore provided.

(Prior code § 2600.38.)