Payment by labor.

Bewers, drains, &c.

Streets, &c.

Restriction.

Proceedings

in opening atrects.

$9. The common council may authorize the inspector of such district to agree with any person so assessed, to receive the amount assessed to such person for highway labor in work, by teams, horses or men, by a certain time therein to be specified; and on any such agreement being made by such inspector, he may give a certificate thereof to the person so assessed, and on leaving the same with the collector, it shall suspend the collection of the amount so assessed to such person until the time specified therein, at the expiration of which time, the said assessment shall be collected, unless the person liable therefor shall produce to the collector a receipt of the inspector of the district for the amount of labor so agreed to be performed, which receipt shall be taken and received by the collector, and returned by him to the city treasurer, who shall allow the same to such collector.

S 10. The common council shall have power, subject to the restrictions and limitations hereinafter contained,

1. To cause common sewers, drains and vaults, arches and bridges, wells, pumps and reservoirs to be made in any part of the city.

2. To cause the pitching, raising, levelling, repairing. cleansing, amending, covering with broken or pounded stone, and paving any of the streets, alleys, lanes, roads, squares, highways and walks in the said city.

3. To lay out, make and open any street, square, alley, road, highway or walk in the said city, and to cause any street, alley, square, road, highway or walk, already laid out, or that may hereafter be laid out or used as such, to be opened or altered by widening or altering the course of the same whenever they shall judge the public good requires the same to be done.

S 11. But the said common council shall not lay out any street, alley, square, road, highway or walk, or alter any such as may already be laid out or used, so as to run across or over the site of any building at the time actually erected, which shall be of the value of five hundred dollars, without having obtained consent of the owner of such building in writing, or without having purchased such building.

$ 12. Whenever the common council shall determine to make any of the improvements aforesaid, and that the lands of any person will be necessary for such purpose, they shall enter in their minutes a description of the land so deemed necessary, with the like certainty as is required by law in writs of ad quod damnum, and may purchase the same of the owner, and make him such compensation as they shall judge reasonable, and thereupon shall take

from such owner a conveyance of such land to the said city.

summoned in

greement.

$ 13. In case any such agreement cannot be made, the Jury to be mayor of the city may issue his precept to the marshal case of dieathereof, describing the land which the common council shall have deemed necessary to be taken for any purpose aforesaid, and commanding him to summon twelve freeholders of the city, not interested in the land through which the proposed street or road is to be laid out, or in the land upon which any such public improvement is proposed to be made, and not of kin to any such owner, to inquire whether the person or persons owning such land, or occupying any tenements thereon, will sustain any and what injury, by reason of the taking of such premises for the use of the said city; and that he notify such owners in the manner required by law, of the time and place of making the said inquiry; and that he return the said precept with the finding of the said jury thereupon to the mayor's court of the said city, at some time thereof, not less than three weeks nor more than ten weeks after the date of such precept.

S 14. Such precept may describe the lands of as many Description owners as the mayor shall think proper.

of lands.

$ 15. Previous to issuing such precept, the common Survey and council shall cause a survey and map to be made of the "a street, alley, square, or other public improvement intended to be made, designating on such map the lots, tracts and parcels of land which are deemed necessary to be taken, and showing the commencement and termination of the road, street, or alley proposed to be laid out, which map shall be authenticated by the signature of the surveyor making the same, and shall be attached to the said precept.

given.

S16. Upon such precept being delivered to such mar- Notice to be shal, he shall give at least ten days' notice of the time and place of executing the same to the owners of the premises described in the said precept, or to the occupants of the said premises, and in case of their not being residents of the said city, to their usual agents and attorneys who have theretofore had charge of such lands, by delivering a written notice to them personally, or leaving the same at their dwelling-houses or places of abode; and if any of the owners of such lands are unknown, or are infants, maniacs, married women, or non-residents of the city, such notice may be served by publishing the same for two weeks in a newspaper printed in the said city. In his return to such precept, the marshal shall specify the persons upon

Jury to bo
Summoned.

Their duty.

whom such notice has been personally served, and the manner of serving it upon other persons.

$ 17. The marshal shall summon twelve jurors, as herein before directed, to appear at the time and place specified in such notice, and shall have power to inquire of them on their oaths, respecting their interests in the lands described in the precept, and respecting their being of kin to any persons so interested. To each of the jurors found free from all exception, the marshal shall administer an oath that he will diligently inquire concerning the matters specified in the said precept, and will give a true verdict according to the best of his judgment, without favor or partiality.

S18. After being sworn, the jury shall proceed on that day, and on such other days as the inquiry shall be adjourned to by the marshal, to view all the lands and tenements specified in the said precept, and may examine witnesses on oath, to be administered by the said marshal, and shall proceed to assess the damages which the owner, or if there be several, which the respective owners of such lands and tenements, or if there be any occupants who are not owners, which such occupants will severally sustain by being deprived thereof; and in making such assessment, they shall not advert to or take into consideration, any benefit or advantage which such owner or occupant will receive by reason of such proposed public improvement being made in the enhancement of the value of any real estate owned or occupied by him, or for any other reason. They shall make an inquisition, to be signed by them and the marshal, in which they shall set forth the names of the several owners of the lands and tenements in question, and the rights of such owners respectively as far as the same can be ascertained by them, and the names of any occupants of the said lands or tenements, not being owners, who will sustain any damage by being deprived of the same, together with the amount of damages sustained by each of them, and the sum of money which should be paid to such owners and occupants for their said damages, which inquisition the marshal shall return, with his precept, to the said mayor's court on the return day specified in such precept. Hearing be $ 19. The said mayor's court shall examine the inquisition so returned, and shall hear the allegations and proofs of the attorney and counsel of the said city, and of any person interested in the lands and tenements described in such inquisition, or his agent or attorney, in relation to the amount of damages therein assessed, and shall cause such proofs to be reduced to writing, and filed with the

fore court.

clerk of the said court, and such court may adjourn the hearing of such allegations and proofs as often as may be necessary, and may set aside the said inquisition in whole or in part, and may direct a new inquisition to supply its defects, upon which the same proceedings shall be had as herein directed upon the precept issued by the mayor, or the said court may confirm the said inquisition in whole or in part, and thereupon enter an order that the mayor and common council of the city of Rochester shall be entitled to take the lands and tenements specified in such inquisition, or such part thereof, in respect to which such inquisition shall have been confirmed, for the purposes of the public improvements so proposed to be made, on paying the amount of damages assessed to the owners and occupants thereof as prescribed by law, and that on making such payment, the mayor and common council shall be entitled to, and have, an absolute estate in such lands and tenements for which such damages shall be paid, as fully and effectually as if the same had been conveyed in fee to the said corporation by the owners of the said lands and

tenements.

prome court.

S20. Any person conceiving himself aggrieved by any Notice of part of such inquisition, that shall have been confirmed appeal to su by the said mayor's court, may, within three months after such confirmation, give notice to the common council of the said city, of his intention to apply to the supreme. court for the appointment of commissioners to review and correct the said inquisition, and shall accompany such notice with a bond, executed to the mayor and common council of the said city, by such person, and one or more sureties to be approved by the mayor, any alderman of the said city, or any judge of the county courts of the county of Monroe, or executed by any two sufficient persons, and approved as aforesaid, in the penalty of two hundred and fifty dollars, conditioned for the diligent prosecution of the said application, and for the payment of all costs and charges which may be incurred by the said mayor and common council, in resisting the same and defending the said inquisition, in case the said inquisition shall be confirmed.

S 21. The giving such notice and delivering such bond, shall suspend all further proceedings of the common council, in relation to the taking of the lands and tenements which shall be the subject of such notice, until a decision thereon, as hereinafter provided.

Suspension

of proceed

ings.

to appoint

$22. At the next term of the supreme court, or at the Sup. court next term of the said court held for hearing non-enume- commission. rated motions, which shall be held after such notice shall

ers

To review Anquisition.

court.

have been served eight days, or on any day of such term, which shall be eight days after the service of such notice, and which day shall be specified therein, the supreme court, by rule of court, shall appoint three reputable and disinterested electors to examine and review such part of the said inquisition as shall have been complained of by the person or persons giving such notice..

$ 23. The said commissioners, so appointed, shall be sworn by any officer authorized to take affidavits to be read in courts of record, faithfully and impartially to examine and review the said inquisition in the parts complained of, and make such correction thereof as shall be just and equitable. They shall appoint a time and place of meeting, of which the like notice as of hearing before referees, shall be given to the mayor of the said city, and shall possess all the powers of referees in suits pending in courts of record, and shall be subject to the same obligations and duties, and may be compelled to report in like manner, and they shall be entitled to the same fees and expenses as referees, to be paid in the first instance, by the applicants.

To report to $ 24. After hearing the allegations and proofs of the parties, the commissioners, or any two of them, shall report to the supreme court at the next term after the hearing before them, the corrections which should justly and equitably be made in any assessment contained in such inquisition, which shall have been so complained of, and the said supreme court shall proceed to consider the same, and for that purpose shall give the said report a preference over any enumerated or non-enumerated motion at such term, and shall confirm, annul or modify such report, as the said court shall deem just, and the decision of the said court thereon shall be final and conclusive, except that in case of annulling the said report, the said court may direct a rehearing before the said commissioners, or before any others that the said court may appoint, and in such case the same proceedings shall be had for the examination, correction and review of the said inquisition, as herein before provided on the first appointment of commissioners.

Determination of court.

$25. In case the said inquisition shall be confirmed, the obligors in the bond given to the common council, as before provided, shall be liable to pay all the taxable costs necessarily incurred; and in case the said inquisition shall be corrected or modified, the supreme court shall determine under the circumstances of the case whether the applicant shall be entitled to his cost and expenses, and if the same be awarded to such applicant, they shall be paid