been paid by any person in respect of any land assessable under this chapter for or toward paying such void assessments upon such lands shall be credited upon the amounts chargeable upon said lands in any new assessment. (Thus amended by L. 1909,

ch. 240, § 19, in effect April 22, 1909.) Amendment of 1909 inserted "by" in place of "to," after "paid," in last

sentence.

§ 68. Appeals from assessments. Appeals from any such assessment may be made by any person deeming himself aggrieved thereby, or by any officer on whom a notice was served as provided in section sixty-seven of this article, who deems his village or town or county aggrieved, in the same manner as is provided for appeals under similar assessments in section thirtythree of this chapter, and the provision of said section thirty-three in regard to appeals from assessments and the procedure thereof shall govern and control the parties and proceedings in all appeals that may be taken from assessments made under this article.

§ 69. Collection of assessments. The assessment made thereby, or such modification thereof as shall be made upon any appeal taken therefrom shall become a lien upon the several lots or tracts of land on which the same shall be assessed as of the date of such filing, and shall be forthwith collected by the collector of the town or towns in which the same shall be situated. Provided that in case where any such ditch or channel has been kept open and cleaned to its full width and depth as originally laid out, by the owners of the land through or across which it was constructed, at their own expense, such lands shall be exempt from such proportion of the tax or assessment for any repairs or enlargement of such ditch or channel as shall be equal to the cost or expense of so having kept the same open and cleaned, to be fixed and determined by said water commissioner and the tax or assessment on any such lands shall be lessened accordingly. § 70. Proceedings of collector; enforcement of payment. On receipt of the roll or statement the collector shall mail forthwith to each person named therein as owner or occupant of any tract or parcel of land assessed within his town at his post-office address stated therein, postage prepaid, a notice stating the amount of the assessment upon the tract or parcel of land owned or occupied by him and the date within which the same must be paid, which shall be thirty days from the mailing of such notice. If such assessment is not paid within that time the collector shall, within thirty days thereafter, proceed to enforce payment thereof and of the interest thereon from the time. it became payable as aforesaid, in the manner provided for collecting assessments by section forty of this chapter, and sections forty-one and forty-two of said chapter shall be applicable to any

case where an assessment has been so enforced. All moneys collected on said roll as the same shall be received by the collector, shall be paid by him upon the certificates of indebtedness issued by the water commissioner as in this chapter provided. the expiration of the term of office of any such collector he shall turn over to his successors any such roll which has not been fully collected, together with all money in his hands which has been collected thereon and not paid on any certificate of indebtedness, together with a memorandum of all the payments made by him and all moneys collected upon said roll; provided, however, that when any collector shall have commenced to enforce collection of any assessment his powers in respect thereto shall continue until those proceedings are finished. When the assessments on the roll have been fully paid the roll shall be filed in the office of the clerk of said county.

§ 71. Compensation of commissioners and collector. Each water commissioner shall be entitled to have and receive in full for compensation for his services under this chapter, three dollars a day for the time actually employed in such business for not exceeding ten days in any one case, except that the county judge of the county upon his ex parte application shall certify that a larger allowance is proper and fix the limit thereof. The compensation of the collector shall be two per centum upon the amount collected and disbursed, and twelve cents for each notice mailed by him. The compensation of the commissioners and collector shall be added to and form part of the costs and expenses assessed by the commissioner. When proceedings are taken to compel collection of an assessment costs and expenses thereupon may be allowed and taxed by the county judge, not exceeding those allowed to be taxed in any special proceeding, and shall be added to the amount of such assessment and col-. lected therewith. All expense certificates or obligations shall be certified by the water commissioner and paid out of the fund or moneys so provided for when collected, and shall bear interest for the time interest is to be allowed to be collected upon the assessment out of which the same is paid as herein before provided. In case the petition for such repairs shall be denied, the expense incurred shall be paid to the commissioner by the petitioners, and payment thereof may be enforced by him in the same manner as a debt or obligation on contract.

§ 72. Condemnation of lands; presumption from twenty years' use. If it shall be found in any case where repair or enlargement is necessary that a right of way for the construction or maintenance of such ditch or channel, over or

upon any tract of land traversed by it, has not been acquired, title therefor may be acquired by said commissioner by agreement with the owner or, if such agreement can not be had, then he may take proceedings to acquire such title in the manner provided by section eighteen of this chapter. Compensation required to be made for such title with the costs and expenses of any proceedings taken therefor, which said costs and expenses shall be allowed to such commissioner, and taxed as in a special proceeding, shall be deemed as expense of such repair or enlargement and collected as part thereof. Whenever any such ditch or channel has been constructed and in use for twenty years and upwards, such use and operation shall be conclusive evidence that a right of way therefor, and all rights in the premises through which it passes which are necessary and incident to the perpetual maintenance thereof as herein provided for, were duly obtained.

§ 73. Modification of easements for maintenance of ditches. The owner of any lands lying wholly or partly within an incorporated village and which are subject to easements for the public use for the maintenance of drains, ditches or channels which have been or shall be hereafter constructed under this chapter or any special act, who shall desire to improve such lands by laying out streets and lots for building purposes may present to the water commissioner having the charge and supervision of such drains, ditches or channels a verified petition for the amendment of the plan according to which said drains, ditches and channels shall have been constructed and a modification of said easements. The said petition shall contain a description of the lands of the petitioner over and upon which easements for the maintenance of ditches and drains have been acquired and shall be accompanied by a map showing the existing drains, ditches and channels upon the petitioner's lands and a second map or plan (hereinafter called the new map) which shall fully show and describe all the ditches, drains and channels which are to be maintained through said lands when the proposed changes shall have been made and shall describe and show the form and manner of construction thereof and the nature and character of materials to be used in any new construction; and all streets or highways existing or to be opened over and upon such lands and said new map shall conform in all particulars to the requirements contained in section twelve of this chapter. The said maps shall be prepared by a competent civil engineer upon such data as may be obtained from the maps and plans according to which said existing drains, ditches and channels were or shall have been constructed and such additional surveys and levels to

be made or taken by said engineer as may be required and the said engineer shall certify that the proposed changes will not according to his best knowledge and belief impair the existing drainage for the public use. The changes hereby authorized may include the change of the form and manner of construction of any ditch or drain, the substitution of a covered or closed drain for an open ditch or drain, the change of the line or course of any ditch or drain and the abandonment of lateral or subsoil pipes, ditches or drains the necessity for which is to be obviated by filling the lands to a proper depth. Any drains or ditches intended to be discontinued shall not be shown on said new map. If the water commissioner to whom such petition is presented shall be satisfied that the drainage for the public use will not be impaired by the proposed changes he may approve of such proposed new plan or map and shall in such case certify his approval in writing and file said petition, maps and certificate in the office of the clerk of the county wherein the lands described in the petition are situated; provided, however, that the said water commissioner shall not approve said new map or plan unless the same shall have been previously approved by a majority of the board of trustees of the village in which all or any portion of the said drains, ditches and channels to be affected by the proposed change are located. The petitioner may thereafter proceed to construct at his own cost and expense the new drains and ditches and to fill in the lands in accordance with the new map so approved by the water commissioner and upon the completion of the work and in case the drains and ditches upon the lands of the petitioner and which are shown upon said new map or plan shall then prove to be sufficient and proper for the public use and necessity for which the easements were originally acquired without the continuance of the ditches, drains and pipes intended to be superseded and discontinued by such plan and not shown thereon the petitioner, his heirs and assigns shall be entitled to and the water commissioner shall issue to him or to them a certificate to the foregoing effect and such certificate shall thereupon be filed in the said clerk's office with said petition, maps and certificate of approval. Upon such filing the easements for the public use in all drains, ditches and channels upon the petitioner's said lands now shown upon said new map shall be extinguished and corresponding easements of the same nature, quality and duration shall be acquired for the public use for the maintenance of the new ditches, drains and channels constructed by the petitioner and shown and described on said new map. The petitioner shall be responsible for all damages he may cause by carelessness or negligence in making the changes authorized as above provided

and the water commissioner may require reasonable security for the payment of such damages as a condition of his approval of the proposed changes.

§ 74. Kings county excepted from provisions of this article. This article shall not apply to the county of Kings.

ARTICLE 5

Miscellaneous Provisions

Section 80. Penalties.

81. Notice of court proceedings.

82. Notice to superintendent of public works.

83. Persons injured through failure to keep ditch open may apply to fence viewers; proceedings there

upon.

84. Town of Newcastle exempted from the foregoing provisions of this chapter.

§ 80. Penalties. Any person who shall do any act to hinder or obstruct the flow of water in a ditch made or repaired under the provisions of this and the preceding articles of this chapter, or who by his negligence or carelessness shall suffer or permit the flow of water in said ditch to be hindered or obstructed, shall be guilty of a misdemeanor.

§ 81. Notice of court proceedings. Any appeal or other proceeding before the court, taken pursuant to the provisions of articles two, three and four of this chapter, in a proceeding initiated or pending in the supreme court, except in a proceeding for the condemnation of real property, may be noticed for hearing at any special term of said court at which a motion on notice may be made in an action pending in a county in which such lands or a part thereof are situated.

§ 82. Notice to superintendent of public works. In any case where the lands sought to be drained lie in two or more counties, no order of court shall be entered for the drainage thereof, under the provisions of this chapter until the certificates of the superintendent of public works and state engineer and surveyor shall have been first obtained, that such drainage would not affect injuriously, the navigation of any of the canals of this state.

§ 83. Persons injured through failure to keep ditch open may apply to fence viewers; proceedings thereupon. If any person through whose lands regularly constructed