Bill 36 (Legislature 2, Session 4)

L2 S4 10641

Alberta — Bills

BILL No. 36 of 1913.

An Act respecting the Constructiop and Maintenance of Small Ditches by the Owners oi] Lands to be benefited. (Assented to 1913.) HIS MAJESTY, by and with t~e advice and consent of the Legislative Assemby of $e Province of Alberta, enacts as follows:

SHORT TITLE.! 1. This Act may be cited as "Tlte Private Ditches Act." Short tiue INTERPRETATIO~. 2. In this Act unless the context !otherwise requires, the

Interpretation expression: 1. "Municipality" means and in~udes any incorporated Municipal•ty municipality whether a city, town, village or rural muni- cipality and also a local improvem t district; 2. "Council" means and includes the council of a muni- Council cipality; 3. "Secretary" means and inclltes the treasurer of a Secretary city municipality and the secretar or secretary-treasurer of a town, village, or rural municipali y or of a local improve- ment district; 4. "Engineer" means a duly q alified engineer or a Engineer surveyor duly qualified to practise n Alberta; .5.

"Ditch" means and includes a drain open or covered Ditch wholly or in part whether in the cha el of a natural stream, creek or watercourse or not and als the work and material necessary for bridges, culverts, catc basins and guards; 6. "Construction" means and includes the original Construction opening or making of a ditch by a tificial means and the disposal of the material taken there£ om; 7. "Maintenance" means and in ludes the preservation Maiutenanoe of a ditch and keeping it in repair; 8.

"Nonresident" means and i eludes a person who Nonresident does not reside within the municip ity in which his lands affected by proceedings under this ct are situate; 9.

"Owner" means and includes ny person w,ho by any owner right, title, or estate whatsoever is or is entitled to be in possession of any land and the ex utor or administrator of an owner, the guardian of an in nt owner, any person entitled to sell or convey the land, an agent of an owner under a general power of attorney or under a power of attorney empowering him to deal ith the land and as regards roads the municipality wit in which the same is situate; 10.

"Road" means and includes ~ny road surveyed and Road set apart as a highway under the p ovisions of The North West Territories Act, The Public W rks Act, or The Land Titles Act and any road allowanc under The Dominion Lands Surveys Act.;

2 11. "Sufficient outlet" means tand includes the safe suirtent discharge of water at a point wh re it will do no injury ou • to lands or roads or into a natur 1 water-course that will carry said discharge; 12. "Court" means the distri t court of the judicial court district within which the lands in espect of which proceed ings under this Act are taken are holly or mainly situate; 13. "Judge" means a judge of he court; Judge 14. "Initiating municipality" eans the municipality Initia~ng. , , h' h • • h 1 d f • mumctpahty w1thm w tc 1s s1tuate t e an an owner commencmg proceedings under this Act; 15.

"Minister" means the Mipister of Public Works MiniBter of Alberta; 16. "Form" means a form in thb

schedule to this Act. Form 3. No ditch the whole cost wh*eof according to the esti mate of the engineer or the agr ent of the parties will exceed $5,000.00 shall be construe ed under the provisions of this Act. 4. The lands, the owners of w~ich may be made liable What !and• for the construction of a ditch und r this Act shall be those~~/· hable lying within a distance of one mile from the sides and point construction of commencement of the ditch. 5.

Any owner other than the inicipality shall beforeD1ecJarat•ohin. • d' d h' ~ fil , h h o owner• P commencmg procee mgs un er t 1 Hct e w1t t e secre- tary of the municipality in which t parcel of land requiring the ditch is situate a declaratio of ownership thereof in the form A which may be take before a justuce of the peace, a commissioner for taking a davits or the secretary of the municipality. 2. Before a municipality com ences proceedings under this Act its council shall pass a res lution to the effect that such proceedings be commenced. 3.

In case of omission to file ch declaration through inadvertence or mistake at the tim aforesaid the judge may in case of such ownership at the s · d time permit the same to be filed at any stage of the proc edings upon such terms and conditions as he may impose o direct. 4. Where a declaration of owne ship has been filed under the provisions of this Act or su h resolution passed by council such declaration or resolu ion shall be conclusive as conferring jurisdiction to procee unless appealed against to the judge under the provisions o this Act. 6.

The owner of any parcel of land who requires the Nohtice to t• f d' h h h 11 b f fil' , h h ol er owners construe lOll o a 1tc t creon s e ore mg wit t e affected secretary of the municipality the equisition provided for by

section 11 of this Act serve up01 the owners or occupants of the other lands to be affected a notice in writing in the form B signed by him and namin therein a day and hour and also a place convenient to the ite of the ditch at which all the owners shall meet and esti ate the cost of the ditch and agree if possible upon the ap ortionment of the work and supply of material for constr tion among the several owners according to their resp ctive interests therein and settle the proportions in which the ditch shall be main tained; and the notices shall be ser ed not less than twelve clear days before the time name therein for meeting.

3 7. If an agreement is arrived at by the owners as in the Form of next preceding

section is provide it shall be reduced to agreement writing in the form C and signed b all the owners and shall within twelve days after the signi g thereof be filed with the secretary of the municipality in which the parcel of land the owner of which requires he ditch is situate; but if the lands affected lie in two or more municipalities the agreement shall be in as many n hers as there are muni cipalities and filed as aforesaid w th their respective sec- Filin 11 retaries; and the agreement may be enforced in the like manner as an award of the eng· eer as hereinafter pro- vided. 8.

No proceedings taken or agre ment made and entered Informalities into under the provisions of secti ns 6 and 7 of this Act l:,"; .. ii'date shall in any case for want of stri t compliance with such proceedin~:• provisions be void or invalidate ny subsequent proceed- ings under this Act provided the n tices required by

section 6 of this Act have been duly serv d; and any such agree- ment may with the consent in writ ng of the parties thereto (which consent shall be filed in t e same manner as the agreement) or by order of the cou t or of the judge on an appeal under this Act be amended so as to cause the same to conform to the provisions of th. Act. 9. If at or before the meeting of owners provided forAdio!'rning in

section 7 of this Act it appears hat any notice required ::'u".;':! ~1r by

section 6 has not been duly se ved the owners present ~~*i:,~ at such meeting shall adjourn the arne to some subsequent day in order to allow the necessary otices to be duly served; and such adjourned meeting shall · such notices have been given and served as provided by

section 6 be a sufficient compliance with the provisions of his Act. h b h If f th . 1. . h executive ave power on e a o e mumc pa 1ty to s1gn t e agree-o.fiicerto 10. The chief executive officer lf the municipality shall Chief • ment aforesaid and his signature s all be binding upon the ~!h' ... f£\1 . municipality. ~~,;:f:ft:v 11.

In case an agreement as af resaid is not arrived atReqW.ition by the owners at the said meeting r within six days there- ~';pointment after then the owner requiring the ditch may file with the b~ engineer secretary of the municipality in w ich such parcel is situ- :'gr~~X::nt ate a requisition in the form D na . ng therein all the sev- arnved at eral parcels of land that will be a ected by the ditch and the respective owners thereof and re uesting that an engineer to be appointed by the municip lity under this Act be asked to appoint a time and place · the locality of the pro- posed ditch at which the said engi eer will attend to make an examination as hereinafter pro ided. 12.

Upon receipt of such requis tion in the form D theA~pointment council shall name and appoint one person to be an engineer 0 enlllneer to carry out the provisions of thi Act and such engineer shall be and continue an officer o the municipality until his appointment is revoked and ano her engineer is appointed in his stead who shall have auth rity to commence pro- ceedings under this Act or to con inue such work as may have been already undertaken.

(2) The council when necessit~ requires shall provide Fees or for payment to the secretary of a fa r and reasonable remun- ~:;,~:.::.d eratiou for services performed by im in carrying out the provisions of this Act and shall fix the charges to be made

4 by the engineer of the municipalitifor services performed by him under this Act and such c arges shall not exceed $15 per day and legitimate expens .

(3) Every engineer appointed un er this Act shall before entering upon his duties take and subscribe the oath or affirmation in the form E and shal file the same with the secretary. 13.

The secretary upon receivin the requisition shall No~ice to forthwith enclose a copy thereof i a registered letter to :~u;,·:; •• of the engineer and on receipt of th same by the engineer :.!';einbt;ent he shall notify· the secretary in wri ing appointing a time englilcer and place at which he will attend n answer to the requi- sition and on receipt of the notice o appointment from the engineer the secretary shall file the s me with the requisition and shall forthwith send by registe ed letter a copy of the notice of appointment to the owner making the requisition who shall at least ten days before the time so appointed serve upon the other owners na ed in the requisition a notice in the form F requiring eir attendance at the time and place fixed by the enginee and shall after serving such notice indorse on one copy ther of the time and manner of Rervice and leave the same with t e indorsements thereon with the engineer not later tnan t e day before the time fixed in the notice of appointment. 14.

Notices under the proyision of this Act shall be ~~;r served personally or by leavmg t same at the place of notices abode of the owner or occupant wi h some person residing thereat apparently or actually over he age of sixteen years and in case of nonresidents then pon the agent of the owner or by registered letter add essed to the owner at the post office address shown by t records of the proper land titles office or in case of the o ncr of unpatented land by the records of the proper Domi on lands office.

(2) Any occupant not the owner of the land· notified in the manner provided by this Act s all immediately notify the owner thereof and shall if he ne lects to do so be liable for all damages suffered by such o ner by reason of such neglect.

(3) Whenever an owner serves }Y notice required by this Act he shall keep a record sh wing the names of the parties served and the time, place and manner of service and shall if required to do so by a judge or the secretary make an affidavit proving such ser · ce. 15.

The engineer shall attend t the time and place R,utieso>f appointed by him in answer to t , requisition and shall • engmeer examine the locality and if he deems · t proper or if requested by any of the owners may examin the owners and their witnesses present and take their ev dence and may admin- ister an oath or affirmation to any wner or witness exam- ined by him; if upon examining th locality the engimeer is of opinion that the lands of ow ers upon whom notice has not been served will be affecte by the ditch he shall direct. that the notice required by

section 13 hereof shall be served on such owners by the o ner making the requi- sition and shall adjourn the proceedi gs to the day named in the notice for continuing the same f r the purpose of allow- ing such owners to be present an to be heard upon the examination and taking of evidenc .

(2) The engineer may adjourn his examination and the hearing of evidence from time to ti and if he finds that the ditch is required he shall within thirty days after his first attendance make his award in riting in the form G specifying clearly the location, desc iption and course of the ditch, its commencement and te mination, apportion ing the work and the furnishing of rna erial among the lands affected and the owners thereof ace rding to his estimate of their respective interests in the itch, fixing the time for performance by the respective owners, apportioning the maintenance of the ditch among a l or any of the owners so that as far as practicable each wner shall maintain the portion of his own land and stat ng the amount of his fees including the estimated cost o his inspection after the time has expired for the cons ruction of the ditch according to his award and the other charges and by whom the same shall be paid.

(3) In making his award the e gineer shall consider direct benefit only to the lands affect d.

(4) The period prescribed for t e engineer to make his award shall be exclusive of the ti e required to obtain the approval of the works or the ecifications or plans thereof by the board of railway com issioners for Canada where such approval is necessary.

(5) In any case where a ditch is to ~ covered the engineer shall in his award specify the kind material to be used in the covered portion of such ditch. 16.

Should the engineer be of the pinion that the land Engine:'{ of any owner will not be sufficient! affected by the con- i''t'l:':;g ~~ struction of the ditch to make him iable to perform any 1 .. !d oic~oss part thereof and that it is necessary o not, as the case may r.~fi~ot be, to construct the ditch across or 'nto his land he may by his award relieve such owner fro performing any part of the work of the ditch and place i s construction on the other owners and any person carryi g out the provisions of the award upon the land of the o ner so relieved shall not be considered a trespasser while c using no unnecessary damage and he shall replace any fen s opened or removed by him; and the owner so relieved m y claim compensation for damage done to his land by th construction of the ditch; and the engineer shall awar such damages as he deems reasonable and shall state t e amount thereof in the award. 17.

The engineer shall forthwith a ter making his award;~:;~. as hereinbefore provided file the sa e and a plan, profilenotioe'to and specifications of the ditch in du licate with the secre- ~~~~d tary of the initiating Irmnicipality ut should the lands affected lie in two or more municipal ties then the engineer shall file with the said secretary as any additional copies of the award, plan, profile and spec cations as there are other municipalities affected and he secretary of the initiating inunicipality shall forward copy to the secretary of each municipality affected; such award, plan, profile or specifications may be given as vidence in any legal proceedings by certified copy as are o her official documents and the secretary of the municipali y or of each of the municipalities shall forthwith upon t e filing of the award notify each of the persons affecte thereby within the municipality of which he is see etary by registered letter or personal service of the filin of the same and the portion of work to be done and mat rial furnished by the

6 person notified as shown by the ward; and the secretary shall keep a book in which he s all record the names of the parties to whom he has sent no ices, the address to which the same was sent and the date pon which the same was deposited in the post office or p sonally served.

(2) The secretary of the init. ting municipality shall ~i'!.,",,te., forthwith forward one copy of he award, plan, profile, to b~ ~nt and specifications to the Minister to be filed in his depart- to IIDntster ment. 18.

If the lands affected by th ditch are situate in tWO Po~ers off or more municipalities the engine r of the initiating muni- ;'~:";a~ty cipality shall have full power a d authority to continue ~~o~~!~~ng• the ditch into or through so much f the lands in any other commenced municipality as may be found nece sary but within the limits hereinbefore provided; and all pro eedings authorised under the provisions of this Act shall b taken and carried on in the municipality where commenc 19.

In every case where lands r roads in two or more c1rtfi""!"" municipalities are affected the s cretary of the initiating l:nd. ~~ o municipality shall forward to the secretary of each of the ~ci'J:!fnl~g .. other municipalities a certified cop of every certificate affect- munlctpalit,ea ing or relating to lands or roads therein respectively and the council thereof shall pay th sum for which lands and roads within its limits are lia lc to the treasurer of the initiating municipality and unles the amounts are paid within twelve days after demand n writing by the parties declared by the certificate liable to pay the same such coun- cil shall have power to take all pro eedings for the collection of the sums so certified to be pa· as though all the pro- ceedings had been taken and ca ried on within its own limits. 20.

The c~uncil of a~w munici ality may enter into .an ~t~1 ~':,'":"· agreement w1th any railway com any for the constructiOn railway land• or enlargement by the railway c mpany of any ditch or culvert on the lands of such rail ay company and for the payment of the cost of such wor after completion out of the general funds of the municipal ty and the council shall have power to assess and levy the mount so paid exclusive of any part thereof for which the unicipality may be liable under the award as to the cost f the work in the same manner as taxes are levied upon the lands mentioned in the a.ward and in the relative pr ortion of the estimated cost of the work to be done and aterials furnished by the respective owners in the constru tion of such ditch; and such assessment Rhall in every c se be determined by a supplementary award made by t e engineer and shall be subject to appeal to the judge in t e same manner as other awards made under this Act.

(2) No agreement with a railway company shall be entered into by a council under this sect on which will impose a special liability on the owners ithout the consent in writing filed with the secretary of the municipality of two-thirds of the owners liable fo the construction of the ditch in respect to which such ork on railway lands is to be undertaken.

(3) The cost of any such work n railway lands shall be exclusive of the sum fixed as the limit of the cost of the work imposed by

section 3 of this ct.

7 21. Any owner dissatisfied with the award of the engineer Appe.f• from and affected thereby may withi twelve clear days after l':d~. to the date of the mailing or service f the last of the notices of the filing of the award as provi ed in

section 17 hereof appeal therefrom to the judge a the proceedings on the appeal shall be as hereinafter pr vided.

(2) The appellants shall serve pon the secretary of the;::,~~ of initiating municipality a notice i writing of his intention to appeal from the award shortly setting forth therein the grounds of appeal.

(3) The secretary in the ne t preceding subsection Clc;f t:o dg mentioned shall after the expirati n of the t me for appeal!~~ fu~~. t':, f d b · d 1 d f th t' fix time and orwar y reg1stere etter or e very a copy o e no ICe !:lao~ for or notices of appeal and a certifie copy of the award and eanng also the plans, profiles and spe ifications to the judge who shall forthwith upon the eceipt of the registered letter or documents aforesaid no ify the secretary of the time he appoints for the hearing thereof and shall fix the place of hearing at the city, town or village nearest to the ditch unless the judge for the g ater convenience of the parties and to save expense fixes ome other place for the hearing; the judge may if he t inks proper order such sum of money to be paid by th appellant or appellants to the said secretary as will be a su cient indemnity against costs of the appeal; and the secret ry upon receiving notice from the judge shall forthwith n tify the engineer whose award is appealed against and all parties interested in the manner provided for the servic of notices under this Act.

(4) Any appellant may have ~he lands and premises~~~:ci:_~o~;r inspected by any other engineer or person who for such :~~?:!r purposes may enter upon such ands and premises but shall do no unnecessary damage. (.5) The secretary of the munipipality to whom notice ry1crk of of appeal is given shall be the clerk of the court and shall t w court record the proceedings.

(6) It shall be the duty of the udge to hear and deter- Judge to mine the appeal or appeals within two months after receiv- ~~~. ing notice thereof from the secre ary of the municipality ;;:;~~h•two as hereinbefore provided or wit in such further period as the judge on hearing the partie. may decide to be neces- sary in order to allow proper in pection of the premises to be made as authorized by the ext following subsection. (7) 'rhe judge may set aside, a ter or affirm the award ~owen of d th . . t" JUdge on an coreect any errors erem; e may exannne par Ies appeal and witnesses on oath and may i spect the premises and may require the engineer to acco pany him; and should the award be affirmed or a tered he costs of appeal shall be n his discretion and if set as de he shall have power 1 o provide for the payment of the costs in the award men tioned and also the costs of appeal and may order the pay- ment thereof by the parties to th award or any of. them as to him may seem just and rna fix the amount of such costs.

(8) The judge shall be entitle to charge for holding I·b' and to court for the trial of appeals un er this Act and for the of 8 iu~men inspection of the premises the su of five dollars a day which charge shall be considered p rt of the costs of appeal under the provisions of the next preceding subsection.

(9) The award so altered or a rmed shall be certified Enforcement .. of award as by the Secretary together With t e COStS ordered and by amended whom to be paid and shall be enfo ced in the same manner

8 as the award of the engineer and the ime for the perform ance of its requirements shall be co uted from the date of such judgment in appeal; and the ecretary shall imme diately after the hearing Eend by re istered letter to the secretary of any other municipality in which l!l.nds affected by the ditch are situate a. certified opy of the changes made in the award by the judge whi h copy shall be filed with the award; and each secretar shall forthwith by registered letter notify every owner wi hin the municipality of any change made by the judge in the portion of work and material assigned to such owner. 22.

No award made by an engineer under this Act shall Judg':imay be set aside by the judge for want of fo only or on account ~;::'ba~k of want of strict compliance with t e provisions of this award Act and the judge shall have power o amend the award or other proceedings and may in an case refer back the award to the engineer with such direct' ns as may be neces- sary to carry out the provisions of this Act. 23.

Every award made under the p ovisions of this Act When;.waFd shall after the lapse of the time her in before limited for ~~~~t~~~~.f appeal to the judge and after the dete ruination of appeals, ina: defects if any, by him, where the award is a med be valid and binding to all intents and purposes otwithstanding any defects in form or substance either in he award or in any of the proceedings relating to the wor s to be done there- under taken under the provisions of th s Act. 24.

In all appeals under this Act iom the engineer's fowers of award the judge shall possess all such powers for compell- ~~~f:g•• to ing the attendance of and for the cxa ination on oath of•v,dence all patries and other persons as bel ng to or might be exercised by him in the district court. 25.

Upon an appeal to a judge unjr this Act the sec-!Jlerkmay retary of the municipality shall have t e like powers as the~~b";oenaa clerk of a district court as to the iss 'ng of subpoenas to witnesses upon the application of an party to the pro ceedings or upon an order of the judg, for the attendance of any person as a witness before him.

(2) The fees to be allowed to witnetses upon an appeal Fees under this Act shall be upon the sea e of fees allowed to witnesses in any action in the district court. 26.

The municipality or each of the municipalities shall Municipalities 'th' t 1 d ft th ' t' f th ' f topay coste, WI In we ve ays a er e expira n o e t1me or etc., and appeal, or after appeal, as the case rna be, pay to the en- ~~~ct same gineer and the judge and all other pe sons entitled to the R:J;;~ns same their charges and fees or the por ·on thereof awarded or adjudged to be paid by the owne s therein and shall if the same arc not forthwith repaid by he persons awarded or adjudged to pay the same cause t e amount with ten per centum added thereto to be place upon the tax roll or assessment roll in cases where the a sessment roll is also the tax roll as a charge against the 1 nds of the persons so in default and the same shall thereu on become a charge upon such lands and shall be collected n the same manner as taxes. 27.

The cng~neer at the expiration J,f ~he time !imited ~~;tn:n by the award for the completiOn of th d1tch shall mspectn~ncompliance the same and i.f he finds the ditch or ny part thereof not wlth award

9 completed in accordance with t~ award he may let the work and supply of material to th lowest bidder who shall give security to be approved b the engineer in favour of the municipality by which he as appointed for the due performance thereof within a li ited time; but no such letting shall take place: (

a) Until notice in writing of the intended letting has been posted up in at leas three conspicuous places in the neighbourhood of the place at which the work is to be done forte clear days; and (

b) Until the expiration oft lve days after the send ing ·of the notice by regi tered letter as provided in

section 14 hereof to nonresidents interested in the said award.

(2) If howeve: .the .engineer is -~tisfied of the good faith ~/~':~r~r of the person failmg lll the perfor ance of the award and complianco there is good reason for the nonper ormance thereof he may in his discretion and upon payme t of the fees and charges extend the time for performance.

(3) Any owner in default of supplying the material Li11bilitr of and doing the work after proceed' gs are begun to let the~:i!~t~f same shall be liable for the feeS nd expenseS OCCasioned ~~:.II work by his default and the same shall f rm a charge on his land ~~~:,edina• and if not paid by him on notice he council shall pay the same on the certificate of the e gineer and shall cause the amount with ten per centum a ded thereto to be placed on the tax roll or assessment roll i cases where the assess- ment roll is also the tax roll again the lands of the person in default to be collected in the same manner as other taxes.

(4) The engineer may let the wo~k and supply of material or any part thereof by the awar directed a second time or oftener if it becomes necessar in order· to secure its performance and completion. 28.

The engineer shall after rec ipt of notice in writing cri6.c•.!:: of Lhe supplying of material and completion of the work~!.~~~ let as in the next preceding sectio mentioned inspect the ~~:12fot same and shall if he finds the m erial furnished and the work completed certify the same in writing in the form H stating the name of the contrac or, the amount payable to him, the fees and charges to whi h the engineer is entitled for his services rendered necessar by reason of the non performance and by whom the sa e arc to be paid. _29.

The coun_cil shall at i!s me ting. held next after !he ~~~~t of filmg of the certificate or certificate as m the next precedmg na~t in

section mentioned pay the sums herein set forth to the ~ir!~~= persons therein named; and unles the owners within the municipality upon notice pay th , sums for which they arc thereby made liable the cou il shall have power to cause the amount for which the wner is liable together with ten per centum added theret to be placed upon the tax roll or assessment roll in cas s where the assessment roll is also the tax roll and the sam shall thereupon become a charge against the lands of s ch owners respectively and shall be collected in the same anner as other taxes. 30.

If it appears to the enginier that heavy work is Letting • • contracts reqUired tlhe engmeer may cause the same to be done for heavy by letting it out to public competi ion by tender or other- work wise instead of requiring each ow er benefited to do his

10 share of the work and the engine r shall by his award determine the fractional part of t e whole cost thereof which shall be paid by each of the owners benefited and upon completion of such heavy wo k shall certify to the secretary of the municipality by w ich he was appointed the total cost thereof including his fe s and charges and the said secretary and the secretary of ny other municipality affected shall notify each of the own rs liable to contribute under the award within their re ective municipalities of the said total cost and the part t be paid by him, and unless forthwith paid the same with ten per centum added thereto shall be placed on the tax oll or assessment roll in cases where the assessment roll is lso the tax roll of the municipality in which his lands are situate and the same shall thereupon become a charge ag inst the land of each owner so liable and shall be collecte in the same manner as other taxes.

(2) It shall be the duty of the ~nitiating municipality ~o~t':'a~~rof through the treasurer thereof to p y the contractor for and engineer such heavy work as soon as done the satisfaction and upon the certificates of the enginee and also to pay the fees and charges of the engineer in connection therewith. 31.

In case any owner during or arter the construction Owners of a ditch Jesires to avail himself of such ditch for the ~~ing to purpose of draining lands other th n those contemplated ~~dit"ce~vea by the original proceedings he may a ail himself of the pro-~~~truction visions of this Act as if he were an o ner requiring the con struction of a ditch; but no owner all make use of such ditch after construction unless under n agreement or award pursuant to the provisions of this A t. 32.

This Act shall apply to the extension, deepening, D.eep~nin11, widening or covering of any ditch already or hereafter :~~~~r'fn 11 constructed no matter by whom or when or under what diwh authority and the proceedings to b taken for procuring such extension, deepening, widenin or covering shall be the same as the proceedings to be tak n for the construction of a ditch under the provisions of t is Act; but in no case shall a ditch be covered unless it wi provide capacity for all the surface and other water from ands and roads drain- ing naturally towards and into it as well as for the water from all the lands made liable for th construction thereof. 33.

The maintenance of any ditc , whether covered or Maintenance open or of any creek or watercourse t at has been deepened~~:~~~~ or widened under any authority in tha behalf, or constructed, ~~.!'.~~-~~\t;:'J deepened, widened or covered under the provisions of this Act shall be performed by the res ctive owners in such proportion as is provided in the ori nal or any subsequent award and the manner of enforcing the same shall be as hereinafter provided. 34.

If any owner whose duty it is t maintain any portion En(orcin,; of a ditch neglects to maintain th same in the manner mamtcnanoc provided by the award any of the wners, parties to the award, whose lands arc affected by t e ditch may in writing notify the owner making default to have his portion put in repair within ten days from the eceipt of such notice and if the repairs are not made and ompleted within such ten days the owner giving the notice n writing may request the council to have the portion co 1plained of inspected by an engineer.

(2) The inspection by the e gmeer and the proceedings for doing and completing the epairs required and enforc ing payment of costs, fees an charges shall be as herein before provided in case of non ompletion of the construct ion of a ditch but should th engineer find no cause of complaint he shall certify th same with the amount of his fees and charges to the ow er who complained and also to the secretary of the muni · pality and the owner who made complaint shall pay the fees and charges of the en gineer and if not forthwith pa' by him the same shall be charged and collected in the me manner as is provided for by thiE!

Act in the case of other certificates of the en gineer. 35. Any owner interested i} or affected by any ditch Proc.;edinio heretofore constructed or her fter constructed. otherwise ~~-w·denipll:. than under this Act may take p oceedings for the deepening, widening, extending, covering or repairing of such ditch in the same manner as for the onstruction of a ditch under this Act: Provided always that the eient of the work and costs thereof and assessment therefo shall not exceed the limi tations imposed by sections 3 nd 4 of this Act. 36.

Any owner party to t e award whose lands arc Pro~• affected by a ditch whether onstructed under this Act !iJ..=: r or any other authority in th t behalf may at any time aareem~t after the expiration of two ears from the completion or aw of the construction thereof or in case of a covered drain at any time after the expiration f one year take proceedings for the reconsideration of the agreement or award under which it was constructed and n every such case he shall take the same proceedings and i the same form and manner as are hereinbefore provided in he case of the construction of a ditch: Provided that in case any 'tch after its constructionProvioo proves insufficient for the pur oses for which it was con structed so as to cause an over w of water upon any lands along the said ditch and cause d mage to the same any owner party to the award may at a time after the expiration of six months from the compl ion of the ditch take pro ceedings as aforesaid for the reco sideration of the agreement or award under which such di ch was constructed for the purpose of remedying the defec in that particular respect. 37.

No action, suit or otherlproceeding shall lie or be Actions r?~ had or taken for a mandamus r other order to enforce or~<l,~':f compel the performance of an award or completion of a lie ditch made under this Act but the same shall be enforced in the manner provided for by his Act. 38. In carrying into effect ihe provisions of this Act Use of foni>• the forms set forth in the sc edule hereto may be used and the same or forms to the like effect shall be deemed sufficient for the purposes men · oned in the said schedule. 39.

Where it is desired to onstruct a ditch through Applic:ti?} lands not included in a munic · ality an owner may com- ~~~~ni:~ mence proceedings under this A t by filing with the Minister temtory the declaration of ownership re erred to in

section 5 hereof and in such case or in case a d tch commenced in a muni cipality is to be extended into o through lands not included in any municipality the Minist shall with respect to such

12 lands have all the powers and perforill the duties invested in or devolving upon a council or cretary with respect to lands in a municipality and all the provisions of this Act shall mutatis mutandis apply t work in such unor ganized territory. SCHEDULE. FORM A. (Section 5.) DECLARATION oF Ow In the matter of The Private Ditches Act and in the matter of a ditch in township. . . . . . . in range ........ west of the ........ meridian in the rovince of Alberta.

I, ........................ of. .. . . ............. in the Province of Alberta ............... do solemnly declare and affirm that I am the owner ithin the meaning of The Private Ditches Act of the .......... quarter (or as the case may be) of

section ............ i township ......... . in range ............ west of the. . ....... meridian, in the Province of Alberta, being (des be the nature of owner ship). Solemnly declared and affirmed} before me at ............. in the Province of Alberta this ........ day of. . . . . .. 19 .. . . . i c o-~~~i~~io:,;e~ 'io~. o~ihs·, .j .'P r ~~ Secretary of Municipal*Y· FORM B. (Section 6.) NOTICE TO OWNERS 0.1!' LAND AFitECTED BY PROPOSED DITCH . ............ Ala ............ 19 ... . To ............................................... . Sir,- I am within the meaning of The rivate Ditches Act the owner of the. . . . . . .. quarter (or as the case may be) of

section . . . .......... in townshi ............ in range . . . . . . . . . .. west of the. . . ............ meridian in the Province of Alberta and as such o ner I require a ditch to be constructed (or if for reconsid ation of agreement or award to deepen, widen or otherwise mprove the ditch state the object) for the draining of my la under the said Act. The following other lands will be a cted (here set out the other parcels of land and the name of he owner in each case, also each road and the municipality ithin which it is situ ated). I hereby require that you as owne of the said (describe his land) will attend at (slate pl.ace of eting) on ......... .

13 the .................... day of.-~· .............. 19 ... . at the hour of. ......... o'clock i the ........ noon with the object of agreeing if possible o the respective portions of the work and materials to be do e and furnished by the several owners interested and the everal portions of the ditch to be maintained by them. Yours, etc., .. ·I· ................... . Name of Owner. FORM C. (Section 7) AmtEEMEN'l' oF OivNERS.

Whereas it is found necessary hat a ditch should be constructed (or deepened, or widene , or otherwise improved) under the provisions of The Pri te Ditches Act for the draining of the following lands (a roads if any): (here describe each parcel of land and give ame of owner, including applicant's own land and also ro s and the municipality within which situated) : Therefore, we the owners within he meaning of the said Act of the said lands (and if roads pr ceed and the ......... . mayor, overseer or reeve of the said municipality on behalf of the council thereof) do agree ach with the other as follows: That a ditch be constructed (or s the case may be) and we do hereby estimate the cost ther f at the sum of $ ..... . and the ditch shall be of the follow· g description (here give point of commencement, course an determination, its depth, boUorn and lop, width and other pa iculars as agreed upon; also any bridges, culverts or catch b ins, etc., required).

I,. . . . . . . . . . . . . . . . . . . . . . .. owner of (describe the lands) agree to (here give portion of rk to be done or material to be supplied) and to complete t e performance thereof on or before the. . . . . . . . . . . . . . . ay of .......... 19 ... . I,. . . . . . . . . . . ... , owner f, etc., (as above and so on with all the owners and the wh le ditch). That the ditch when constwcte shall be maintained as follow~: I, .................. , owner of describe his lands) agree to maintain the portion of the di ch from (state point of commencement) to (state the pain of termination of his portion).

I, .................. , owner of etc. (as above and so on with the owners and the whole dit h). To be signe here by all the owners. Signed in the presence of ) ............................. J

14 FORM D (Section 11 ) RECUISITION FOR THE EXAMIN TION BY ENGINEER. ta., ........... 19 ... . To (Name of Secretary). Secretary of (P.O. Address).

Sir,- 1 am within the meaning of Th Private Ditches Act the owner of the .......... quarter ( r as the case may be) of section. . . . . . .. in township . . . . . . . . . . ........ in range .............. west of the. . . .......... meridian in the Province of Alberta, and as su h I require to construct (deepen, widen or otherwise improve as needed) a ditch under the provisions of the said Act for he drainage of my said land, and the following lands an roads will be affected: (here describe each parcel of land to e affected as in the notice for the meeting to agree and state the ame of the owner thereof) and the said owners having met and failed to agree in regard to the same I request that an engineer to be appointed by the municipality for the purpos of the said Act be asked to appoint a time and place in the locality of the proposed ditch at which he shall attend a d examine the premises, hear any evidence of the parties nd their witnesses and make his award under the provis ons of the said Act.

Sign ture of party applying. FORM E. (Section 12 ( ) ) In the matter of The Private Ditc s Act: I, ........................... of .................. . in the Province of Alberta (eng eer or surveyor) make oath and say (or do solemnly de lare and affirm) that l will to the best of my skill, knowle ge, judgment and ability honestly and faithfully and witho t fear of, favour to or prejudice against any owner or o ners perform the duties from time to time assigned to me n connection with work under The l)rivate Ditches Act an make a true and just award thereon.

Sworn (or solemnly declared an I affirmed) before me at ........ . in the Province of Alberta, thi , ................. day of ..... j 19.... }

15 FORM F. (Section 13.~ NoTicE OF APPOINTMENT FOR EXArfiNATION BY ENGINEER • . . . . . . . . . . . . Altaj, ............ 19 ... . To (Name of owner). (P.O. Address). Sir,- You are hereby notified that ....... has been appointed engineer for the purposes of The P ate Ditches Act and has in answer to my requisition fixed t e hour of ...... o'clock in the. . . .... noon of ........ day he ........ day of .... . 19. . . . at ........ in the Province of Alberta as the time and place for examining the premi s and site of the ditch required by me to be constructed nder the provisions of the said Act (or as the case may

b) and you as owner of lands affected are required to att nd with any witnesses that you may desire to have hear at the same time and place. Yours, etc., ........ ,sfi~~~t~r~. ~j A'~pli~~~i ... FORM G. (Section 15 (2~ ) AwARD OF ENGI:rj<EER. I, ........................ , the engineer appointed by the council of (city, town, village rural municipality or local improvement district, as the c se may be) under the provisions of The Private Ditches A t having been required so to do by the requisition of. . . . . . . .............. owner of the .......... quarter (or as the ase may be) of

section .......... in township .......... i range .......... west of the. . . ...... meridian in the P ovince of Alberta filed with the secretary of said munici ality and representing that he requires certain work to e done under the pro visions of the said Act. for the dr inage of the said land and that the following other lands and roads, if any) will be affected (here set out the other reels of lands or roads affected as in the requisition) did atte d at the time and place named in my notice in answer to sai requisition and having examined the locality (and the paries and their witnesses if such be the case) find that the itch (or the deepening or widening of a ditch) is within the aid Act and is required.

The location, description and co se of the ditch and its point of commencement and termi ation are as follows: (Here describe the ditch as to all bove particulars.) The said work will affect the following l ds (and roads, if any). (Here set forth and describe the Zan and state the owners.) I do therefore award and appor ion the work and the furnishing of material among the l ds (and roads, if any) affected and the owners thereof acco ding to. my estimate of their respective interests in the sai work as follows: 1. (Name, owner and descriptio of his land) shall make and complete (here fix the oint of commencement

16 and ending of his portion) and sh~l furnish the following material (state what material) all of which according to my estimate will amount in value to $ ......... and I fix the time for the performance of sue work and providing such material at not later than he ............ day of ............ 19 .... 2. (Name of owner and descriptiqn of land and so on as above to the end.) I do further award and apportioq. the maintenance of the ditch as follows: 1. (Name of owner and descriptio of land) shall maintain (here state point of commencement an ending of his portion). 2. (Name of owner, etc., as above. 3. (Name of owner, etc., a{! above) s all receive $ ......... . as compensation for damages which shall be borne and paid as follows: (State by whom and by what lands respectively).

My fees and the other charges ttendant upon and for making this award are (here give es and other charges in detail) amounting in all to $ .......... which shall be borne and paid as follows: (State by whom and ~~ ~~~t. ~~t .r.e~~~~~~~e_z:~· ... ... . WITNEss: ~ignature of Engineer. FORM H. (Section 28.~ CERTIFICATE OF E~GINEER. To ......................... . Secretary of ............. · ............ .

I hereby certify that .................... has furnished the material and completed the w k (as the case may be) which under my award made in a cordance with the pro- visions of The Private Ditches Act d dated the ......... . day of ............ 19.. . , one ............ owner of the ...... ~ ..... 9-uarter (o; as the c se ~ay be) of

section . . ........ m township. . . . . ...... m range ......... . west of the ............ meridian in the Province of Alberta was adjudged to furnish or perfor and having failed to furnish or perform the same, it s subsequently let by me to the said. . . . . ...... for the s m of $ ............ and as he has now completed the furn shing and performance thereof he is entitled to be paid the said amount.

I further certify that my fees and charges for my services rendered necessary by reason of such failure are (give items) amounting to $ ........... and said amount pay- able to the said contractor and m said fees and charges are chargeable on (describe land o be charged therewith) under the provisions of The Privat Ditches Act. Dated this ............ day of. .......... 19 ... . Si nature of Engineer.

No. 36 FOUR'_fH SESSIO~ 191 ~ l3IJ~L

An Act respecting the Construction and l\1aintenance of Sn1all Ditches by the Owners of Lands to be benefited. H eccivPd and read the I.,. . , 1rst tune . · .................. . S<'cond t i rnc ................. . Third tin1c... . . . . . . . . ........ . ED:\IO:XTOX: .J. ,y JEFFEHY, Governme!1t Printer A.D. 1913 Title: 1913 (2nd, 4th) Bill 36,

An Act respecting the Construction and Maintenance of Small Ditches by the Owners of Lands to be benefited

Document details

Collection	Alberta — Bills
Citation	L2 S4 10641
Type	bill
Volume / chapter	L2 S4 10641
Language	en
Format	json
Source	PROVINCIAL
Identifier	a3d9d33563bbd50262a7e016220078ad7f66fe61

Source file is stored in the law ingest library (json).