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the owners of property as aforesaid, the city council shall take charge of and keep the same in repair, without further exclusive assessment on the property on such street, or section of a street; provided also, that all or any of the Proviso. aforesaid improvements shall be made, or work done, only on the application, in writing to said council, of a majority of the resident owners of property lying along any street or streets, or sections thereof, on which such improvement is to be made or work done; provided also, that before the Proviso. city council shall determine that such improvement is to be made or work done, they shall give notice in a newspaper printed and published in the city of Elizabeth, by advertisement for at least two weeks, briefly describing such work, road, alley, park or improvement, and requesting all persons who may object thereto, or be interested therein, to appear in person or by agent before the city council, or their committee, at a time and place to be designated therein, to be heard in reference thereto; pro- Proviso. vided also, that the like notice shall be served on each owner of land upon or before which said improvement is to be made or work done, or by leaving a copy thereof at his or her residence if they reside within the city of Elizabeth, at least ten days before the time appointed, or, if non-residents, then by placing the said notice in the postoffice directed to their address, if known, at least ten days before the time appointed; provided also, that if the owner's Proviso. residence is not known, then the notice by public advertisement, afore provided, shall be deemed sufficient.

3. And be it enacted, That whenever the city council shall Compensadetermine to lay out and open any street, road, highway, made for alley or public park, or square, within said city, or to alter, widen or straighten any street, road, highway or alley, or to make any sewer or drain in any part of said city, and to take and appropriate for such purpose any lands and real estate, they are hereby authorized to treat with the owner or owners thereof for the same, and may purchase the same, and make such compensation therefor as they shall judge reasonable; and shall thereupon receive from

tion to be

.

owners can• not agree.

such owner or owners a conveyance of such lands and real estate to the city; and such compensation shall constitute a part of the whole amount of costs, damages and expenses to be assessed under and in pursuance of the provisions of

section eight of this act. Proceedings 4. And be it enacted, That in case no agreement for such in case city council and purchase can be made, it shall be the duty of the mayor to

appoint, with the approval of the city council, five disinterested freeholders of said city, as near as may be one from each ward, commissioners to make an estimate of the land to be taken, and also assessment of the damages any such owner or owners will sustain by taking and appropriating in the manner aforesaid such lands and real estate, and estimating and in assessing such damages, the said commissioners shall have due regard both to the value of the lands and real estate and to the injury or benefit to the owner or owners thereof by making such improvement as aforesaid ; and if, in any case, the commissioners shall estimate the benefits to any such owner or owners to be greater than the damages, they shall so declare in their report, and shall specially estimate and assess the value of the lands and real estate which are necessary to be taken and appropriated for such improvement; and after such award shall be made, the remaining lands and real estate of any such owner or owners shall be liable to assessment for the payment of the costs, damages and expenses of such improvement under and in pursuance of the provisions of section eight of this act; provided always, that nothing in this act shall be construed to authorize the said city council to take and appropriate any graveyard, burial-ground, or place used for burying the dead, for streets, roads, highways or alleys without the consent of all the owners or

proprietors thereof. Meeting of 5. And be it enacted, That it shall be the duty of the

mayor, on making such appointment as aforesaid, to designate a time and place for the meeting of the commissioners, not less than two weeks from the date of such appointment, of which time and place of their first meeting,

Proviso.

commissioners.

he shall give public notice by advertisement for two weeks previously in one or more of the city newspapers, and also, a written notice shall be served upon the persons interested, by leaving the same at their residence at least five days previous to said meeting, if within said city, or if they are non-residents, by placing the said notice in the post office directed to their address, or if said address is not known, then such advertisement shall be sufficient, and the said commissioners shall, before they enter upon the execution of the duty required of them, severally take and subscribe an oath or affirmation before the city clerk or mayor of said city, to make the said estimate and assessment fairly and impartially, according to the best of their skill and judgment, and the said commissioners, or a majority of them, when met, shall have power to examine witnesses under oath, to be administered by any one of them, to enter upon and view the premises if they deem it necessary, and to adjourn from time to time, and they shall make a just and true estimate and assessment as aforesaid, make and sign a report of the same, and file the same with the city clerk, and the same being ratified by the city council, shall be binding and conclusive upon the owner or owners of any such lands and real estate, and the said city council, upon payment of the damages so awarded or a tender and refusal thereof, shall cause the same to be converted and used for the purpose aforesaid ; provided, that any person Proviso. or persons conceiving himself, herself or themselves aggrieved by the proceedings under this section of the said city council, or of the said commissioners, may appeal therefrom to the circuit court of the county, within sixty days from the time of making the final order of the city council, and the circuit court shall order a trial by jury to assess the damages sustained by the party aggrieved, the trial whereof shall be conducted as in other cases of trial by jury.

6. And be it enacted, That in cases of non-payment on suits may be demand of any damages estimated and assessed as afore. cases of non

payment of said, with interest from the date of the assessment, in case damages.

Payment of damages to non-residents, &c.

of no appeal to the circuit court as aforesaid, the person or persons entitled thereto may sue for and recover the same from the said city, in an action on the case, with costs, in any court having cognizance thereof, and the said proceedings of the said commissioners and the city council, or the verdict of said jury, as the case may be, shall be conclusive evidence against the defendant.

7. And be it enacted, That the city treasurer shall, under the direction of the city council, tender and pay to the owner or owners of such lands and real estate, if resident in the said city, the amount of such estimate and assessment of damages due to him, her or them; but if any such owner is not a resident in this city, or is a lunatic or idiot, or under age, or if for any other lawful cause he is incapacitated to receive the same, or if such owner will not accept the same and sign a proper receipt therefor, when tendered, then the city treasurer shall make affidavit of such facts and file the same with the city clerk; and the city council shall cause the amount to be placed at interest on good security, for the use of the person to whom it may

be due. Assessment 8. And be it enacted, That in order to provide for the penses to be payment of the value of the land, costs, damages, and ex

penses of laying out and opening, altering, widening, or straightening any street, road, highway or alley within said city, under the provisions of the second section of this act, the city council shall ascertain the whole amount of such valuation costs, damages and expenses, and shall cause to be made a just and equitable assessment thereof, upon the owners of all the lands and real estate benefited thereby, in proportion, as nearly as may be, to the advantage each shall be deemed to acquire; that in order to provide for the payment of the cost, damages and expenses of laying out, opening or grading any public park or square within said city, the city council shall ascertain the whole amount of such costs, damages and expenses, and shall cause to be made a just and equitable assessment of such amount upon the owners of all the lands and real estate benefited thereby

of damages

made.

in proportion, as nearly as may be, to the advantage each shall be deemed to acquire; and that in order to provide for the payment of the costs, damages and expenses of constructing any sewer or drain in any part of said city, the city council shall ascertain the whole amount of such costs, darnages and expenses, and shall cause to be made a just and equitable assessment thereof, upon the owners of all the lands and real estate benefited thereby, in proportion, as nearly as may be, to the advantage each shall be deemed to acquire; and that in order to provide for the payment of the costs and expenses of grading, gravelling, paving or macadamizing any street, or section of a street, said city council shall ascertain the whole amount of such costs and expenses, and shall cause to be made a just and equitable assessment thereof, upon the owner or owners of lands and real estate upon the line of said street, or section of a street so graded, gravelled, paved or macadamized; provided, that the person or persons feeling aggrieved shall Proviso. have the right of appeal as specified in section five.

9. And be it enacted, That in all cases of the appointment Commisof commissioners under the fourth section of this act, it take oath. shall be the duty of same commissioners, upon the request of the city council, subsequently to meet and make an assessment of the whole amount of the value of the land and of the costs, damages and expenses of such improvement or work, in the manner herein required; and in all other cases of assessment, the city council shall appoint five disinterested freeholders of said city, residing as nearly as may be, in different wards, commissioners to make any such assessment; and the said commissioners, before they enter upon the execution of the duty required of them, shall take and subscribe an oath or affirmation before the city clerk, or mayor of said city, to make the said assessment fairly and impartially according to the best of their skill and judgment.

10. And be it enacted, That the said commissioners shall Report of make a report in writing of the assessment so made, and ers to be before signing the same, shall place the said report in the

commission

filed.

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