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notice to be given to the parties interested, or their agent or attorney. They shall view the property described in the petition, and hear the Vlow. proofs and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all having an opportunity to be Determinpresent, shall, without any unnecessary delay, and before proceeding to the examination of any other claim, ascertain and determine the compensation which ought justly to be made by the said mayor, aldermen and commonalty of the city of New York, to the owners or the persons interested in the rights, titles and privileges to be acquired or affected by the said proceeding. They, or a majority of them, shall also determine what sum ought to be paid to the general or special guardian or committee of an infant, idiot, or person of unsound mind, or to an attorney appointed by the court to attend to the interests of any unknown owner or party in interest, not personally served with notice of the proceedings, and who has not appeared, for costs, expenses and council fees. They, or a majority of them, shall also (but not in excess of any request therefor made in behalf of the city) determine the height to which the waters of any lake or natural stream, concerning which such proceedings are instituted, may be raised, and the point to which such waters may be drawn down by the said the mayor, aldermen and commonalty of the city of New York, such determination to be made before any award of damage shall be made on account of such proposed raising or depressing of such waters. The Report said commissioners shall make a report of their proceedings to the supreme court, with the minutes of the testimony taken by them, if any; and they shall be entitled to the payments hereinafter provided for their services and expenses, to be paid from the fund hereinafter provided.
8 7. On such report being made by said commissioners, the counsel Confirma to the corporation of the city of New York shall give notice to the report. parties, or their attorneys, to be effected * by the proceedings, according to the rules and practice of said court at a general or special term thereof for the confirmation of such report, and the court shall thereupon confirm such report, and shall make an order containing a recital of the substance of the proceedings in the matter of the appraisal and a general description of the real estate appraised, for which compensation is to be made; and shall also direct to whom the money is to be paid, or in what bank and in what manner it shall be deposited by the comptroller of the city of New York.
8 8. A certified copy of the order so to be made as aforesaid shall be When recorded, at full length, in the office of the clerk of the county in which commis the real estate described in it is situated, and thereupon, and on the pay- public ment or deposit by the comptroller of the city of New York of the sums works may to be paid as compensation for the acquisition of such real estate, or for session. the extinguishment of any right, title or interest therein, and for the costs, expenses and counsel fees as directed by said order, the said com missioner of public works, for and in behalf of the said the mayor, aldermen and commonalty, shall be entitled to enter upon, take possession and use the said real estate for the purposes indicated in this act and all parties mentioned in this act who shall have been made parties to the proceedings, together with all parties claiming or to claim, by, through or under them, shall be forever divested and barred of all right, estate and interest in such real estate, and of all claim for any
• So in the original.
damage on account of the taking, using or affecting of such real estate, How held. or of any right, title, interest therein. All real estate acquired by the
said the mayor, aldermen and commonalty of the city of New York,
under and pursuant to the provisions of this act, shall be deemed to Appeal. be acquired for public use. Within twenty days after the confirmation
of the report of the commissioners, as provided for in the seventh section of this act, either party may appe:el, by notice, in writing, to the other, to the supreme court from the appraisal and report of the commissioners. Such appeal shall be heard by the supreme court at any general or special term thereof on due notice thereof being given, according to the rules and practice of said court. On the hearing of such appeal, the court may direct a new appraisal and determination of any question passed upon before the same or new commissioners in its discretion, but from any determination of the general term, either party, if aggrieved, may take an appeal, which shall be heard and determined by the court of appeals. In case of a new appraisal, the second report shall be final and conclusive on all the parties interested. If the amount of compensation to be made by the said city is increased by the second report, the difference shall be a lien on the real estate appraised and shall be paid by the comptroller of the city of New York to the parties entitled to the same, or shall be deposited in bank as the court may direct, and if the amount is diminished, the difference shall be refunded to the said the mayor, aldermen and commonalty of the city of New York by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the second report, against the party liable to pay the same. Such appeal shall not affect the possession by the said city of New York of the real estate appraised; and when the same is made by others than the said city it shall not be heard except on the stipulation of the party appealing not to disturb such possession.
$ 9. If there are adverse and conflicting claimants to the money, or claims as
any part of it, to be paid as compensation for the real estate taken or affected, the court may direct the money to be paid into the said court by the said comptroller, and may determine who is entitled to the same and direct to whom the same shall be paid, and may, in its discretion, order a reference to ascertain the facts on which such deter
mination and order are to be made. Unknown $ 10. The court shall appoint some competent person to appear for parties.
and protect the rights of any party in interest who is unknown, or
whose residence is unknown, and who has not appeared in the proAmending ceedings by an attorney or agent. The court shall also have power, at defects.
any time, to amend any defect or informality in any of the special proceedings authorized by this act as may be necessary, or to cause new parties to be added and to direct such further notices to be given to any party in interest as it deems proper, and also to appoint other commissioners in place of any who shall die or refuse or neglect to
serve or be incapable of serving. In case of § 11. If, at any time, after an attempt to acquire title by appraisal defect city
of damages or otherwise, it shall be found that the title thereby atagain.
tempted to be acquired is defective, the said city may proceed anew to acquire or perfect such title in the same manner as if no appraisal had been made, and at any stage of such new proceedings the court may authorize the said city, if in possession, to continue in possession, and if not in possession, to take possession and use such real estate during the pendency and until the final conclusion of such new proceedings, and may stay all actions or proceedings against the said city on ac.
count thereof on the comptroller of said city paying into court such sum as the court may direct, to pay the compensation therefor when finally ascertained, and in every such case, the party interested in such real estate may conduct the proceedings to a conclusion if the said city delays or omits to prosecute the same. And if, at any time, the said Additional city shall require, for the purposes indicated in this act, to acquire any additional real estate, or to extinguish any other or further rights, titles, interests therein in addition to that which it has already acquired or extinguished, such city may acquire such additional real estate or extinguish such additional rights, titles, interests therein, or any such real estate, or any right, title or interest therein which it now uses or occupies, or which it has heretofore used or occupied, by purchasing the same of the persons or parties owning the same, or interested therein, or affected by such proceedings, and by paying to such parties such damage as they may sustain by reason thereof if the amount of such compensation or damages can be agreed upon between such commissioner of public works and such persons or parties; and if such commissioner of public works shall, for any cause, be unable to agree for the purchase of such real estate, or shall be unable to agree upon the sum which shall be paid to such persons or parties in satisfaction of the damages they may sustain, or if the title to any such real estate or rights already acquired or extinguished, or attempted to be acquired or extinguished, shall, for any cause, prove defective or imperfect, then and in every such caso such commissioner of public works may proceed to acquire and perfect title to such real estate or rights, and to ascertain and appraise such damages in the manner and by the proceedings herein before in this act prescribed.
$ 12. The commissioners of the land office shall have power to grant Land boto the said city any real estate belonging to the people of this state longing to which may be required for the purposes indicated in this act, on such terms as may be agreed on between them and the said commissioner of public works, always, however, reserving and maintaining the rights of the people and riparian owners to go to the water at any point to which the same may be drawn; and if any real estate of any Town or county, town or school district is required by such city for the purposes of this act, the majority of the board of supervisors acting for such county, or the supervisor of any such town, with the commissioners of highways therein acting for such town, or the trustees of any school district acting for such district, may grant or surrender such real estate for such compensation as may be agreed upon between such officers, respectively, and the said commissioner of public works.
§ 13. In case any real estate required by said city for the purposes Estates of this act shall be vested in any trustee not authorized to sell, release vested in and convey the same, or in any infant, idiot or person of unsound mind, the supreme court shall have power, by a summary proceeding, on petition, to authorize and empower such trustee or general guardian or committee of such infant, idiot, or person of unsound mind, to sell, convey or surrender the same to the said city on such terms as may be just; and in case any such infant, idiot, or person of unsound mind has no general guardian or committee, the court may appoint a special guardian or committee for the purpose of making such sale, surrender or conveyance, and may require such security from such general or special guardian or committee as said court may deem proper. But before any conveyance or release authorized by this section shall be executed, the terms on which the same is to be executed shall be reported to the court on oath, and if the court is satisfied
that such terms are just to the party interested in such rights, titles, interests or property, the court shall confirm the report and direct the proper conveyance or release to be executed, which shall have the same effect as if executed by an owner of such rights, titles, interests or property having legal power to sell, surrender and convey the
Real estate already taken may be held under this act.
§ 14. In all cases where the commissioner of public works shall have heretofore entered upon, taken or used, any real estate, either with or without the license of the owner thereof, for the purpose of increasing the supply of water for the city of New York, and the title to such real estate shall not have been acquired by said city either by purchase or by any proceedings under any existing law and the said city, by any of its officers, agents or employes, shall be in possession thereof at the time this act shall take effect, and such possession shall be continued for the period of sixty days thereafter, such possession shall be deemed an election on the part of said city to take such real estate under and pursuant to the provisions of this act, and in that case it shall be the duty of the corporation counsel, at the expiration of said sixty days, to make the necessary application for the appointment of commissioners pursuant to the provisions of this act to appraise the damages and compensation to be paid for the taking and using of the same. The performance of such duty may be enforced by the supreme court by mandamus on the application of any owner or claimant of the real estate so taken or used, and upon the hearing before the commissioners appointed upon such application they shall, if requested by said owners or claimants, also appraise and determine the amount of damages sustained by said owners or claimants respectively by reason of any use or occupation of said real estate by said city, or any of its officers or agents, before the making of such application. The said commissioners shall in their report state the amount of damages so ascertained and determined by them, and the amount thereof shall form a part of the amount required to be paid by said city before the right and title to the real estate specified in said report shall be vested in said city as herein before provided. Upon such hearing all of the provisions of this act in relation to compelling the attendance of witnesses, and the examination thereof, shall apply to the claim for damages growing out of such use and occupation.
§ 15. As to any damages which may have accrued to the owner or claimant of any real estate, as to which the proceedings provided by this act may be instituted, before such proceedings shall have been instituted, this act shall not be taken or construed to deprive any party of a right to a trial by jury of the question of such damage, and the said commissioners shall estimate and determine such damages, and the compensation to be made therefor, only upon the consent of all the parties thereto. Such consent, however, shall be conclusively presumed as against any party who shall appear and take part in the proceedings to determine the amount of such damage, without first entering an objection to the dermination* thereof by such commissioners. In absence of such objection, but not otherwise, the said commissioners shall proceed to final determination of such question.
$ 16. The term real estate, as used in this act, shall be construed to signify and embrace all uplands, lands under water, the waters of
“ Real estate, definition of.
• So in the original.
any lake, pond or stream, all water rights or privileges, and any and all easements and incorporeal hereditaments, and every estate, interest and right, legal and equitable, in lands, or water, including terms for years, and liens thereon by way of judgment, mortgage, or otherwise, and also all claims for damage to such real estate.
$ 17. The commissioners appointed in pursuance of this act shall Compensa receive as compensation the sum of ten dollars per day for each day commisactually employed. They may employ the necessary clerks and sur- sloners. veyors. The salaries of the commissioners and of their employes, and the necessary traveling expenses and other expenses incurred in and about such special proceedings shall be paid by the said comptroller, as provided for in this act, on the certificate of the commissioner of public works of the city of New York.
$ 18. For the purpose of preventing any waste of water, the com- Preventmissioner of public works of the city of New York is hereby author. ing waste ized to construct such aqueducts, reservoirs, dams, sluices, canals and appurtenances as may be necessary to collect or retain the water in or from any lakes or streams which may be taken under the operation of this act, and use such waters as the wants and necessities of said city may require, provided that nothing contained in this or in any exist- Proviso. ing act shall authorize or permit any water in excess of the ordinary flow thereof to be drawn from Lake Mahopac and Lake Glenida, in the town of Carmel and county of l'utnam, between the first day of March and the first day of September in any year; and provided also that nothing in this or in any existing act contained shall be so construed as to interfere with any existing right to catch fish, obtain ice, or keep, use and maintain boats in or upon any natural lake or pond which may be acquired under this act, nor shall it be so construed as to destroy any existing right of riparian owners upon such lakes and ponds to use the waters thereof, or to build upon the shores thereof, except as such rights niay be affected by the raising or lowering of the waters of such lake or ponds, as herein before prescribed.
$ 19. It shall be the duty of the comptroller of the city of New Money to York, and he is hereby authorized and directed, on requisition of the be falsed commissioner of public works of the city of New York, to raise, from to pay for
rights, etc time to time, on bonds of said city, amounts of money sufficient to pay the sums which may be necessary, from time to time, to be paid for the acquisition of any real estate, or for the extinguishment of any right, title, interest therein, to be acquired or extinguished under this act, together with all expenses necessarily incurred in surveying, locating and acquiring title to real estate, or extinguishing claims for damages thereto; and also all such sums as, from time to time, may be found necessary for the construction of acqueducts*, reservoirs, dams, sluices, canals and appurtenances as are now in process of construction; and all such payments shall be made by the comptroller on the certificate of the commissioner of public works of the city of New York; provided, however, the amount so raised shall not, in any one year, exceed the limitations which, by law, may be or may have been imposed as to the amount of expenditure to be made by the commissioner of public works.
8 20. The bonds so to be issued by the comptroller of the city of Bonda New York, in pursuance of this act, shall be entitled “additional Čroton water stock of the city of New York,” shall bear interest at the
* So in the original.