42-3,102. Procedure upon failure of proprietors to construct or maintain head gate; costs; attorney fees; sale of proprietors' rights to pay cost; liability of proprietors; penalty for unlawful ac
42-3,102
42-3,102. Procedure upon failure of proprietors to construct ormaintain head gate; costs; attorney fees; sale of proprietors' rightsto pay cost; liability of proprietors; penalty for unlawful acts.If the proprietors of any canal, ditch, conduit or other works fordiverting the water of any natural source shall refuse or fail to erectat or near the head of such works the head gate required by this act, orto maintain the same in good order as hereby required, the officerhaving authority so to do shall, whenever necessary in order to effectthe distribution of the waters of the district in conformity with thestatutes and the order of any court having jurisdiction, exclude thewater of such stream from such ditch, conduit or other works by fillingsuch ditch, conduit or other works at or near the head thereof, or bycutting the banks thereof, or in such other way as to him may seemeffective, having due regard to the cost thereof; and the reasonablecost of such filling or other work shall be paid by the board ofcommissioners of the county wherein the head of such ditch, conduit orother works may be situate, and may, together with a reasonableattorney's fee to be fixed by the court, be recovered by such county inany court of competent jurisdiction; and the judgment of the court shallbe a lien upon and against such ditch, conduit or other works and theappurtenances thereof, and all right of the proprietors thereof to carryor enjoy the waters diverted or carried thereby, and shall direct thesale of such ditch, conduit or other works and the right of theproprietors aforesaid in satisfaction thereof, and such judgment may beenforced by special execution or other proper process.
No such sale shall divest or impair the right of any person entitledto the use of water from such ditch, conduit or other works by agreementwith or license from the person or persons so in default, but all lawfulfees and other sums of money payable by such consumer in respect to thecarriage of water by means of such works shall thereafter be payable tothe purchaser at such sale.
Every such sale shall be made as a sale of real estate, andredemption therefrom may be made in the manner provided by law in thecase of land sold on execution.
Such proprietors so in default shall be liable for all injury anddamages occasioned any consumer of water lawfully entitled thereto fromsuch ditch, conduit or other works by the willful or negligent failureof such proprietors to comply with the provisions of this act; and ifany person, without first constructing the head gate therein as requiredby this act, shall open any such canal, ditch, conduit or other worksafter the same shall have been filled by the officer having theauthority to do so, or turn the water into such canal, ditch, conduit orother works after the same shall have been excluded therefrom pursuanthereto, or, having control of such works, shall knowingly permit waterto flow therein after the same shall have been so closed or the waterexcluded therefrom as aforesaid, pursuant hereto, every person sooffending shall be deemed guilty of a misdemeanor, and shall be fined inany sum not exceeding three hundred dollars, or imprisoned in the countyjail not exceeding six months, or punished by both such fine andimprisonment, in the discretion of the court wherein such conviction ishad.
History: L. 1891, ch. 133, art. 8, § 14; May 20; R.S. 1923, 42-3,102.