CHAPTER 266 Levees

266.010. Creation of levee district.

In counties of less than 200,000 population, when it will be conducive to the public health, convenience or welfare or when it will be of public benefit or utility, a levee district may be created in accordance with the procedures of KRS 65.182 . KRS 266.010 to 266.180 apply only to levees that have or may receive government aid. All levee districts established prior to 1914 and now existing under the laws of Kentucky are vested with all the powers and rights conferred by KRS 266.010 to 266.180 and are not deprived of any rights previously acquired.

History. 2417c-1, 2417c-23, 2417c-23a, 2417c-25: amend. Acts 1978, ch. 384, § 390, effective June 17, 1978; 1984, ch. 100, § 25, effective July 13, 1984.

NOTES TO DECISIONS

1.Constitutionality.

The levee law is not unconstitutional as local or special legislation. Board of Drainage Comm'rs v. Board of Levee Comm'rs, 191 Ky. 470 , 230 S.W. 959, 1921 Ky. LEXIS 348 ( Ky. 1921 ).

Research References and Practice Aids

Cross-References.

Flood control, KRS §§ 104.450-104.680.

Kentucky Law Journal.

Goodlett, Construction of Statutes — “Ejusdem Generis.” 28 Ky. L.J. 355 (1940).

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

ALR

Construction of levees as affecting duty of railroads under statutes requiring provision for the drainage or flow of waters. 19 A.L.R.2d 987.

266.020. Petition to construct levee. [Repealed.]

Compiler’s Notes.

This section (2417c-2: amend. Acts 1978, ch. 384, § 391, effective June 17, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.025. Multi-county levee districts. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1970, ch. 40, §§ 1 to 3; 1978, ch. 384, § 392, effective June 17, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.030. Appointment of commissioners for proposed levee. [Repealed.]

Compiler’s Notes.

This section (2417c-2) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.040. Duties of commissioners — Report. [Repealed.]

Compiler’s Notes.

This section (2417c-2: amend. Acts 1974, ch. 386, § 51; 1982, ch. 141, § 79, effective July 1, 1982) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.050. Action if commissioners’ report is favorable. [Repealed.]

Compiler’s Notes.

This section (2417c-3) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.060. Proceedings if no exceptions are filed. [Repealed.]

Compiler’s Notes.

This section (2417c-4: amend. Acts 1952, ch. 84, § 62) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.070. Proceedings if exceptions are filed. [Repealed.]

Compiler’s Notes.

This section (2417c-5) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.080. Appeal from decision establishing or refusing levee. [Repealed.]

Compiler’s Notes.

This section (2417c-7: amend. Acts 1978, ch. 384, § 393, effective June 17, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.090. Order establishing levee — Entry — Conditions. [Repealed.]

Compiler’s Notes.

This section (2417c-6) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

266.100. Board of levee commissioners — Appointment — Terms — Removal of members.

  1. The county judge/executive shall, upon the creation of a levee district as provided in KRS 65.182 and 266.010 and every four (4) years thereafter, appoint five (5) resident landowners of the vicinity of the levee to be known as the board of levee commissioners. The commissioners shall serve for a term of four (4) years and until their successors are appointed. The county judge/executive shall fill any vacancies in the board. All appointments to the board shall be subject to the approval of the fiscal court.
  2. Members of the board of levee commissioners may be removed from office as provided by KRS 65.007 .
  3. When a multicounty levee district is established the board shall be appointed by the county judges/executive of the counties involved. Appointments shall be apportioned among the counties in ratio to the portion of the levee to be constructed within each county.
  4. The board of levee commissioners is a body politic, with the status of a corporation, and in its corporate name may do everything authorized by law with reference to public levees.

History. 2417c-8, 2417c-14: amend. Acts 1970, ch. 40, § 4; 1978, ch. 384, § 394, effective June 17, 1978; 1980, ch. 18, § 24, effective July 15, 1980; 1984, ch. 100, § 26, effective July 13, 1984.

Opinions of Attorney General.

KRS Chapter 266 authorizes a board of levee commissioners to raise money by three basic methods pursuant to KRS 266.150 , 266.160 and 266.170 and the board is limited to those procedures in its fund raising attempts; any so-called special assessment to be made by the board must conform to the statutorily authorized methods by which a board of levee commissioners may raise and secure funds. OAG 83-234 .

266.110. Officers of board — Election — Term — Duties — Bond — Compensation.

The board of levee commissioners shall elect a president from its members for a term of four (4) years, and may prescribe who shall preside in his absence. It may make all necessary rules prescribing the duties of its presiding officer and its own government. The board shall also elect a secretary and a treasurer, for a term of four (4) years, or one (1) person to fill both offices. The secretary shall keep a record of the proceedings of all meetings and perform such other duties as the board prescribes. The treasurer shall receive and keep a distinct account of all money belonging to the board, make payments upon the orders of the board, and perform such other similar duties as the board may prescribe. The treasurer shall, before he begins his duties, execute bond to be approved by the board. The board may fix salaries for its officers and members and provide for the payment of any of its employees.

History. 2417c-15, 2417c-21.

Research References and Practice Aids

Cross-References.

Bonds of officers and fiduciaries, amount and conditions of, KRS 62.060 to 62.080 .

Professional engineer or licensed architect must be employed for certain public works, KRS 322.360 .

266.120. Duties of board — Power to enforce aid.

  1. The board of levee commissioners shall superintend the construction, care and protection of the levee, and see that convenient crossings of the levee are made at the intersection of all public roads and at such private crossings as the commissioners may establish.
  2. At any time the commissioners deem the levee in danger of being damaged, after being built, by wind or high water, they shall, after giving six (6) hours’ notice to all persons between the ages of eighteen (18) and fifty (50) residing within the territory protected by the levee, require them to assemble at a point designated by the commissioners, and aid in the repair and protection of the levee, for which they shall be paid by the commissioners at the rate of one dollar and fifty cents ($1.50) per day.
  3. No person liable to work under this section shall fail to do so after being notified.
  4. All boards shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. 2417c-8, 2417c-9: amend. Acts 1974, ch. 386, § 52; 2013, ch. 40, § 75, effective March 21, 2013.

Research References and Practice Aids

ALR

Applicability of rule of strict or absolute liability to overflow or escape of water caused by dam failure. 51 A.L.R.3d 965.

266.130. Board’s power to acquire property.

The board of levee commissioners may enter upon, acquire, take and hold any lands or premises necessary and proper for locating, constructing, reconstructing, enlarging, extending, repairing and maintaining its line of levees, as well as for the cutting of ditches for the purpose of relieving the levees and the lands adjacent thereto enlarged by sipe and rain water. The board may also cut and remove trees, timbers and other materials that may, by falling or otherwise, encumber or endanger any levee. In case the owners cannot agree with the board as to the value of any property taken under authority of this section, the board may condemn the property in the manner provided in the Eminent Domain Act of Kentucky.

History. 2417c-16: amend. Acts 1976, ch. 140, § 99.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Opinions of Attorney General.

Where board of levee commissioners entered agreement for excavation of drainage ditch, under terms of which board was required to acquire the necessary easements and rights-of-way, and board had insufficient funds to acquire such easements, the fiscal court could not levy a special assessment in order to raise funds to enable the board of levee commissioners to purchase the needed land or rights-of-way nor was there any authority for the circuit court to force the fiscal court to levy such a tax; in the absence of sufficient funds, the board could not instigate the condemnation proceedings. OAG 83-234 .

Research References and Practice Aids

ALR

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

266.140. Board’s power to cooperate with federal agencies.

The board of levee commissioners may enter into arrangements, contracts and agreements with any river commission or agency of the United States government to secure the construction, reconstruction, repair, enlargement, extension or maintenance of the levee by the river commission or other agency, or with its aid or cooperation. For this purpose the board may turn over to the river commission or other agency the use and control of any part or all of its line of levee, and may place its officers, servants, agencies or funds at the disposal of and under the control and direction of the river commission or other agency, which may take the same in charge and which may contract for and superintend the building of the levee.

History. 2417c-17.

266.150. Board’s power to tax.

  1. For the purpose of building or repairing its levees the board may levy and have collected an annual tax, not exceeding fifty cents ($0.50) on the one hundred dollars ($100), on all property within the territory protected by the levee. The property shall be assessed and the tax collected in the same manner and subject to the same requirements as in assessing and collecting the county revenue. The proceeds of the tax shall be paid over by the sheriff to the treasurer of the board, and shall be used by the board in the building or repairing of its levees.
  2. This tax shall not be defeated on account of any irregularity in the proceedings that does not affect the substantial rights of the party complaining.

History. 2417c-13, 2417c-22.

NOTES TO DECISIONS

1.Limitation on Taxes.

The board of levee commissioners is without power to levy more than the 50¢ ad valorem tax authorized, and a provision for an acreage tax was unconstitutional and void. (But see KRS 266.170 ). Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ).

Opinions of Attorney General.

KRS Chapter 266 authorizes a board of levee commissioners to raise money by three basic methods pursuant to KRS 266.150 , 266.160 and 266.170 and the board is limited to those procedures in its fund raising attempts; any so-called special assessment to be made by the board must conform to the statutorily authorized methods by which a board of levee commissioners may raise and secure funds. OAG 83-234 .

Where board of levee commissioners entered agreement for excavation of drainage ditch, under terms of which board was required to acquire the necessary easements and rights-of-way, and board had insufficient funds to acquire such easements, the fiscal court could not levy a special assessment in order to raise funds to enable the board of levee commissioners to purchase the needed land or rights-of-way nor was there any authority for the circuit court to force the fiscal court to levy such a tax; in the absence of sufficient funds, the board could not instigate the condemnation proceedings. OAG 83-234 .

266.160. Board’s power to borrow money and issue bonds.

For the purpose of establishing, constructing, reconstructing, repairing, enlarging, and maintaining the levees the board may borrow money as is necessary, and issue, negotiate, and sell its bonds in denominations of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) each, as the board prescribes. The bonds shall each be signed by the president and countersigned by the secretary of the board, with the corporate seal affixed. They shall be made negotiable or nonnegotiable, at the discretion of the board, and shall bear interest at a rate or rates or method of determining rates and be payable annually, at a time and place as the board prescribes and contracts. The board shall fix the place for the payment of principal and interest of the bonds. The bonds shall be redeemable by the board at any time within twenty (20) years after the date of their issue, or at a time within twenty (20) years as is stated in the bonds.

History. 2417c-19: amend. Acts 1996, ch. 274, § 58, effective July 15, 1996.

Opinions of Attorney General.

KRS Chapter 266 authorizes a board of levee commissioners to raise money by three basic methods pursuant to KRS 266.150 , 266.160 and 266.170 and the board is limited to those procedures in its fund raising attempts; any so-called special assessment to be made by the board must conform to the statutorily authorized methods by which a board of levee commissioners may raise and secure funds. OAG 83-234 .

Where board of levee commissioners entered agreement for excavation of drainage ditch, under terms of which board was required to acquire the necessary easements and rights-of-way, and board had insufficient funds to acquire such easements, the fiscal court could not levy a special assessment in order to raise funds to enable the board of levee commissioners to purchase the needed land or rights-of-way nor was there any authority for the circuit court to force the fiscal court to levy such a tax; in the absence of sufficient funds, the board could not instigate the condemnation proceedings. OAG 83-234 .

266.170. Board’s power to make additional assessments under drainage law procedure.

  1. Whenever it is necessary for the board to have sufficient funds to enable it to pay the interest and principal of any bonds, or any liability incurred necessary in the reconstruction, repair or maintenance of any public levee constructed under laws other than the general laws of the state pertaining to drainage of lands, the board or any landowners benefited by the reconstruction, enlargement, repair or maintenance of the levee may petition the county judge/executive of the county of the board’s appointment to have the lands benefited by the reconstruction, enlargement, repair or maintenance classified and formed into a district and assessed to pay the interest and principal of the bonds or other liability in the same manner as provided in the general laws pertaining to drainage of lands.
  2. A proceeding to have the lands protected by such levee assessed for the repair or maintenance of the levee for the current year shall enable the board to make, annually thereafter, an assessment of a like amount against the land in the district protected by the levee, and, in any year thereafter, an assessment of such a lesser amount as the board considers necessary to repair and maintain the levee. When the cost of the reconstruction and enlargement of the levee cannot be paid out of annual assessments made for the repair or maintenance of the levee, as hereinbefore set out, original proceedings may be had to classify the land benefited by the reconstruction or enlargement and form the land into a district and make assessments against the land so benefited for the cost thereof as often as necessary.
  3. Assessments made under this section shall not be defeated on account of any irregularity in the proceedings that does not affect the substantial rights of the party complaining.

History. 2417c-20, 2417c-22: amend. Acts 1978, ch. 384, § 395, effective June 17, 1978.

NOTES TO DECISIONS

1.Management of District.

Management of levee district is not transferred from levee commissioners to the county board of drainage commissioners whenever the levee commissioners seek to avail themselves of the provisions of this section providing for an additional assessment. Board of Drainage Comm'rs v. Board of Levee Comm'rs, 191 Ky. 470 , 230 S.W. 959, 1921 Ky. LEXIS 348 ( Ky. 1921 ).

Opinions of Attorney General.

KRS Chapter 266 authorizes a board of levee commissioners to raise money by three basic methods pursuant to KRS 266.150 , 266.160 and 266.170 and the board is limited to those procedures in its fund raising attempts; any so-called special assessment to be made by the board must conform to the statutorily authorized methods by which a board of levee commissioners may raise and secure funds. OAG 83-234 .

Where board of levee commissioners entered agreement for excavation of drainage ditch, under terms of which board was required to acquire the necessary easements and rights-of-way, and board had insufficient funds to acquire such easements, the fiscal court could not levy a special assessment in order to raise funds to enable the board of levee commissioners to purchase the needed land or rights-of-way nor was there any authority for the circuit court to force the fiscal court to levy such a tax; in the absence of sufficient funds, the board could not instigate the condemnation proceedings. OAG 83-234 .

Research References and Practice Aids

Cross-References.

Drainage and reclamation act of 1912, KRS ch. 267.

Drainage and reclamation act of 1918, KRS ch. 268.

266.180. Lien for reconstruction, enlargement, repair or maintenance.

A lien shall exist for the cost of the establishment, construction, reconstruction, repair, enlargement, extension and maintenance of any levee established under the laws of Kentucky against the land within the territory protected by the levee, superior to all other liens except those for taxes due the state, county, municipality or taxing district in which the land is located.

History. 2417c-18.

266.190. Provisions for levees in any county.

When it will be conducive to the public health, convenience or welfare, or when it will be of public benefit or utility, the county judge/executive of any county may establish and aid in the construction of any levee along a river or watercourse within the county in the manner and subject to the provisions of subsection (1) of KRS 266.100 , KRS 266.120 , subsection (1) of KRS 266.150 , and KRS 266.990 , with the following exceptions:

  1. In KRS 266.120 persons rendering aid in the repair or protection of the levee shall be paid at the rate of one dollar ($1) per day.
  2. In KRS 266.150 the tax collected shall be paid over to the board of levee commissioners.

History. 938a-1 to 938a-9, 938a-13: amend. Acts 1978, ch. 384, § 396, effective June 17, 1978; 1984, ch. 100, § 27, effective July 13, 1984.

NOTES TO DECISIONS

1.Flood Walls.

The authority given to the fiscal court by the former version KRS 67.080 to appropriate funds to build and maintain “bridges and other structures” cannot be extended, by the doctrine of “ejusdem generis,” to include appropriations for flood walls, especially since this section covers the subject of flood walls. Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 68 , 128 S.W.2d 230, 1939 Ky. LEXIS 388 ( Ky. 1939 ).

266.200. Riding on public levee unlawful.

No person shall ride a horse or drive any vehicle on any public levee except at a crossing of a public road or at such private crossings as the board of levee commissioners has established.

History. 938a-10.

266.210. Hogs, unlawful to permit on public levee.

No person shall permit any hog owned by him to run at large on any public levee.

History. 938a-12.

266.990. Penalties.

  1. Any person who violates subsection (3) of KRS 266.120 shall be fined five dollars ($5) for each day the violation continues.
  2. Any person who violates KRS 266.200 shall be fined for each offense not less than ten dollars ($10) nor more than fifty dollars ($50).
  3. Any person who violates KRS 266.210 shall be fined for each offense not less than five dollars ($5) nor more than ten dollars ($10). Any hog found running at large on the levee may be impounded by the board of levee commissioners and held for five (5) days, and unless within that time the owner pays to the board the above penalty, the board may sell the hog for the benefit of the levee.
  4. The proceeds of all fines collected under this section shall be used by the board of levee commissioners in the building and repairing of its levees.

History. 938a-10, 938a-12, 2417c-9, 2417c-13.

Research References and Practice Aids

Cross-References.

Strays and animals running at large, KRS ch. 259.

CHAPTER 267 Drainage and Reclamation Act of 1912

267.010. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the county board of drainage commissioners, or, in counties having seventy-five (75) or more separate drainage districts, or in counties availing themselves of the provisions of KRS 267.390(3)(b) and 267.490 as provided in KRS 267.495 , the drainage commissioner.
  2. “District” means drainage or levee district.
  3. “Improvement” means the construction, reconstruction, straightening, widening or deepening of any ditch, drain, canal, creek, levee or watercourse.
  4. “Sheriff” includes any collecting officer.
  5. “Viewers” means the board of viewers appointed by the county judge/executive.
  6. The power to appoint includes the power to remove at any time.

History. 2380-1, 2380-2, 2380-6, 2380-7, 2380-32, 2380-34, 2380-37, 2380c-1: amend. Acts 1956, ch. 235, § 2; 1978, ch. 384, § 397, effective June 17, 1978.

NOTES TO DECISIONS

1.Alternative Method.

The Drainage and Reclamation Act of 1918 did not repeal the somewhat similar 1912 act, but rather provided a separate and alternative method for the reclamation of wet lands by drainage. Board of Drainage Comm'rs v. Lang, 187 Ky. 123 , 218 S.W. 736, 1920 Ky. LEXIS 89 ( Ky. 1920 ); Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ); Board of Drainage Comm'rs v. McGill, 251 Ky. 400 , 65 S.W.2d 91, 1933 Ky. LEXIS 887 ( Ky. 1933 ).

2.Authority.

Ditch constructed under authority of three member board after amendment limited board to one member was built under color of authority and de facto officers and warrants issued pursuant thereto were valid, moreover, since the landowners stood by during the construction without making any objection and having received the benefits they are estopped from relying on any irregularity in the proceedings and denying the validity of the acts of the board. Hardwick v. Poole, 313 Ky. 706 , 233 S.W.2d 419, 1950 Ky. LEXIS 967 ( Ky. 1950 ).

Cited:

Board of Drainage Comm’rs v. Igleheart, 301 Ky. 596 , 192 S.W.2d 364, 1945 Ky. LEXIS 750 ( Ky. 1945 ).

Opinions of Attorney General.

KRS Chapters 267 to 269 do not authorize the establishment of a joint drainage commission between the city and the county. OAG 80-93 .

Research References and Practice Aids

Cross-References.

Governor’s cabinet, powers as to drainage, KRS 147.100 .

Sanitation districts, KRS ch. 220.

Soil and water resources commission to assist in drainage programs, KRS 146.110 .

Soil conservation, KRS ch. 262.

Water districts, KRS ch. 74.

Kentucky Law Journal.

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

267.015. Compliance with KRS 65A.010 to 65A.090.

All boards established under this chapter shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 2013, ch. 40, § 76, effective March 21, 2013.

267.020. Creation of drainage district.

A drainage district may be created in accordance with the procedures of KRS 65.810 for the purpose of draining or reclaiming low, swampy or overflowed land in the county, locate, establish and have constructed any levee, ditch, drain or canal, and have constructed, straightened, widened or deepened any ditch, drain, creek, or nonnavigable watercourse, and have reconstructed any ditch, drain, creek, levee or canal heretofore constructed under any drainage law.

History. 2380-1: amend. Acts 1978, ch. 384, § 398, effective June 17, 1978; 1984, ch. 64, § 17, effective July 13, 1984.

NOTES TO DECISIONS

1.District within a District.

A drainage district may be organized within the limits of an established drainage district, to meet the peculiar needs of a portion of the district. Horn v. Adams, 184 Ky. 424 , 212 S.W. 108, 1919 Ky. LEXIS 76 ( Ky. 1919 ); Adams v. Horn, 188 Ky. 333 , 222 S.W. 95, 1920 Ky. LEXIS 281 ( Ky. 1920 ), but see Alms v. Burns, 206 Ky. 283 , 267 S.W. 241, 1924 Ky. LEXIS 368 ( Ky. 1924 ).

2.Jurisdiction.

The county court retains jurisdiction of a proceeding to establish a drainage district until every incident of litigation is terminated. Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ).

A county court has jurisdiction of proceeding for straightening, widening, deepening and otherwise improving public ditches originally constructed. Board of Drainage Comm'rs v. Stephens, 213 Ky. 30 , 280 S.W. 456, 1926 Ky. LEXIS 442 ( Ky. 1926 ).

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the constitution. OAG 63-869 .

Research References and Practice Aids

ALR

Liability of governmental entity for issuance of permit for construction which caused accelerated flooding. 62 A.L.R.3d 727.

267.030. Petition for improvement — Board of viewers — Report — Proceedings — Appeal — Establishment of district. [Repealed.]

Compiler’s Notes.

This section (2380-2: amend. Acts 1978, ch. 384, § 399, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.040. Board of viewers — Appointment — Oath. [Repealed].

Compiler’s Notes.

This section (2380-2, 2380-3: amend. Acts 1978, ch. 384, § 400, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.050. Examination and report of viewers — Petition dismissed if report unfavorable. [Repealed.]

Compiler’s Notes.

This section (2380-3: amend. Acts 1978, ch. 384, § 401, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.060. Proceeding on favorable viewers’ report. [Repealed.]

Compiler’s Notes.

This section (2380-3, 2380-4: amend. Acts 1952, ch. 84, § 63, effective July 1, 1953) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.070. Appeal from decision on exceptions. [Repealed.]

Compiler’s Notes.

This section (2380-5: amend. Acts 1960, ch. 104, § 16; 1978, ch. 384, § 402, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.080. Confirmation of report — Establishment of district. [Repealed.]

Compiler’s Notes.

This section (2380-6: amend. Acts 1978, ch. 384, § 403, effective June 17, 1978) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.090. Drainage directors — Election.

  1. In every county where an improvement has been made under former laws or is made under this chapter, except those counties having seventy-five (75) or more separate drainage districts or those counties availing themselves of the provisions of KRS 267.390(3)(b) and 267.490 as provided in KRS 267.495 , the county judge/executive shall annually call an election in each district, to be held in the courthouse at the county seat on some day in May designated by him. At this election the taxpayers of each district shall elect a director to represent the district on the board of drainage commissioners. The county judge/executive shall preside at the election of each district, which shall be by viva voce vote of each member present at the hour designated by the county judge/executive. The districts of the county shall be numbered by the county judge/executive, and the elections shall take place in the numerical order of the districts. If any district is not represented at the election, the county judge/executive shall appoint a taxpayer of that district as director to represent the district. The county judge/executive shall fill all vacancies by appointment. The call for election shall be made at least ten (10) days before the election by posting notice at the courthouse door and by publication pursuant to KRS Chapter 424.
  2. If the county judge/executive fails to carry out any of the provisions of this section, any five (5) taxpayers in any drainage district coming under the provisions of this chapter may call an election, and shall upon the day of the election designate one of their number to act in place of the county judge/executive, with all the rights of the county judge/executive under this section.
  3. In counties having seventy-five (75) or more separate drainage districts or in counties availing themselves of the provisions of KRS 267.390(3)(b) and 267.490 as provided in KRS 267.495 , the provisions of KRS 267.010 and 267.490 shall be followed.

History. 2380-7, 2380c-1: amend. Acts 1956, ch. 235, § 3; 1966, ch. 239, § 180; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 404, effective June 17, 1978.

267.100. Board of drainage commissioners created — Powers.

Except as provided in KRS 267.010 , 267.090 , and 267.490 , the directors from the various districts of the county shall constitute the county board of drainage commissioners, with the right to acquire, hold, encumber, sell and convey any property necessary to the conduct of its affairs, with all the rights and powers of a corporation, and with all other rights and powers necessary to carry out its work under the provisions of this chapter, including the right of eminent domain.

History. 2380-7.

NOTES TO DECISIONS

1.Public Corporation.

A drainage district is a public corporation, and not a municipal corporation. Horn v. Adams, 184 Ky. 424 , 212 S.W. 108, 1919 Ky. LEXIS 76 ( Ky. 1919 ); Taylor Coal Co. v. Board of Drainage Comm'rs, 189 Ky. 793 , 225 S.W. 368, 1919 Ky. LEXIS 583 ( Ky. 1919 ).

2.— Powers.

As a public corporation, a drainage district has all powers incident to such corporations, and may maintain an action for damages to its ditches. Taylor Coal Co. v. Board of Drainage Comm'rs, 189 Ky. 793 , 225 S.W. 368, 1919 Ky. LEXIS 583 ( Ky. 1919 ).

3.— Void Contract.

Where public corporation is not bound by contracts made by its officers because the contracts are void, the law does not raise any implied promise to pay for benefits received by the corporation under the void contracts; but, if benefits so received can be restored to the other party, it is the duty of the corporation to do so. Hays' Ex'x v. Burns, 216 Ky. 827 , 288 S.W. 764, 1926 Ky. LEXIS 1023 ( Ky. 1926 ).

4.Agency of State.

The board of drainage commissioners acts solely as an agency of the state in performance of governmental functions, and is not liable for the negligent or malicious acts of its servants. Dillingham v. Board of Drainage Comm'rs, 214 Ky. 263 , 283 S.W. 95, 1926 Ky. LEXIS 326 ( Ky. 1926 ); Bard v. Board of Drainage Comm'rs, 234 Ky. 263 , 27 S.W.2d 968, 1930 Ky. LEXIS 155 ( Ky. 1930 ); Thrasher v. Knight, 237 Ky. 260 , 35 S.W.2d 282, 1931 Ky. LEXIS 576 ( Ky. 1931 ).

Cited:

Holt v. Clements, 265 Ky. 546 , 97 S.W.2d 397, 1936 Ky. LEXIS 531 ( Ky. 1936 ).

267.110. Officers of board.

Within fifteen (15) days after the election of the directors they shall meet at the county seat and elect a president and treasurer from their number, and a secretary who need not be from their number. If no secretary is elected, the county clerk shall be the ex officio secretary of the board. The president and directors shall receive no compensation for their services as such. The treasurer may receive a salary determined by the board, and shall execute bond as the board directs.

History. 2380-7.

267.120. Meetings — Office — Records — Reports — Expenses.

  1. The board shall meet when called by the president. The president shall call a meeting upon the written request of two (2) or more directors. The board shall have an office at the county seat, which shall be provided with all necessary furniture, stationery and records. The board shall keep complete records of its proceedings, which shall be at all times open to the inspection of the public.
  2. By April 1 of each year the board shall make a complete report of its acts during the previous year, showing the amount of money received and from what source, and the amount paid out and for what purpose. The report shall be spread upon its records and be open for public inspection. By April 1 of each year the board shall publish pursuant to KRS Chapter 424 a financial statement of the previous year, showing the amounts received, the date of receipt and from what source, and the amounts paid out, the date of disbursement and for what purposes.
  3. All expenses incurred by the board shall be taken out of drainage funds and not from any general funds of the county.

History. 2380-7: amend. Acts 1966, ch. 239, § 181.

267.130. Drainage engineer — Powers — Duties — Assistants — Survey — Map — Report.

  1. When the court refers to it any proceeding to establish or construct any improvement, the board shall employ a competent drainage engineer, who shall be the chief engineer for the work. The board may prescribe the number of assistant engineers to be selected by the chief engineer. The chief engineer shall have control of the work until completed, or until his removal by the board, and may assign portions to each assistant. He may, with the consent of the board, consult any eminent engineer and obtain his opinion or advice concerning the drainage of the district. He may employ such assistants as are necessary to make a complete topographical survey of the district, and shall enter upon the ground and make a survey of the main drains and all the laterals.
  2. The line of each ditch, drain or levee shall be plainly and substantially marked on the ground. The course and distance of each ditch, and width of right-of-way, shall be carefully noted and sufficient notes made so that it may be accurately plotted and mapped. A line of levels shall be run for the entire work and sufficient data secured from which accurate profiles and plans may be made. Frequent bench marks shall be established along the line, on permanent objects, and their elevation recorded in the field books. Other levels may be run to determine the fall from one part of the district to another. If an old watercourse, ditch or channel is being altered it shall be accurately cross sectioned, so as to compute the amount of cubic yards saved by the use of the old channel. If a private ditch is utilized, the saving by reason of its use shall be carefully computed and reported, with the name of the owner. A drainage map of the district shall then be completed, showing the location of every improvement and the boundary, as closely as may be reasonably determined, of the lands owned by each individual landowner within the district. The location of any railroad or public highway and the boundary of any incorporated city within the district shall be shown on the map. There shall be prepared to accompany the map a profile showing the surface of the ground, and the bottom or grade of the proposed improvement.
  3. The engineer shall make an estimate of the cost of the work, and plans and specifications therefor, and file the same, together with all maps and profiles, with the county clerk, to be made a part of the record of the proceedings. All such maps, profiles, plans and specifications, together with the report of the engineer and all exhibits filed therewith, shall be made in duplicate, one to be marked original and the other duplicate. If lands in counties other than the one in which the proceeding is pending are affected, an additional copy of the maps and profiles shall be made and filed with the county clerk of the other counties. The original shall not be withdrawn from the custody of the clerk, but the duplicate may be withdrawn for use by the viewers, the board, or for use on the work by the engineer or contractor. This material shall be receipted for by the person withdrawing it, and returned promptly.

History. 2380-8, 2380-17; 2019 ch. 44, § 31, effective June 27, 2019.

NOTES TO DECISIONS

Cited:

McFarland v. Burns, 233 Ky. 650 , 26 S.W.2d 548, 1930 Ky. LEXIS 634 ( Ky. 1930 ).

Research References and Practice Aids

Cross-References.

Governor’s cabinet, as state planning board, to prepare maps and surveys for drainage, KRS 147.100 .

Professional engineer or licensed architect must be employed for certain public works, KRS 322.360 .

267.140. Conference as to place and method of crossing railroad right-of-way.

Whenever the chief engineer makes a survey to locate a district or to change a natural watercourse that would cross the right-of-way of any railroad company the board shall serve written notice upon the local agent of the company, or its lessee or receiver, that the chief engineer or his assistant will meet the company at the place where the proposed improvement crosses the right-of-way of the company, at a time stated in the notice, at least ten (10) days after the service of the notice, to confer with the company concerning the place where and the manner in which the improvement shall cross the right-of-way. At this meeting, unless for good cause more time is agreed upon, the engineer and the railroad company shall agree, if possible, upon the place where and the manner and method in which the improvement shall cross the right-of-way. If the engineer and the railroad company cannot agree, or if the railroad company fails to confer with the engineer, he shall determine the place and manner of crossing the right-of-way, and shall specify the number and size of openings, and so state in his report.

History. 2380-8.

267.150. Adoption of engineer’s report — Action of county judge/executive, clerk and viewers.

When the engineer’s report is filed, the board shall meet and receive and adopt it, with any modifications that may be determined upon, and shall notify the county judge/executive of its action. Within ten (10) days thereafter, the county judge/executive shall enter an order referring the proceedings to the original viewers for the purpose of assessing damages, and making classification of the land for assessment. The county clerk shall notify the viewers of the county judge/executive’s action, and set a day for them to meet at the county clerk’s office of the county in which the proceeding is pending. Unless the time is extended the viewers shall file their report within sixty (60) days from the time the proceedings are referred to them.

History. 2380-9: amend. Acts 1978, ch. 384, § 405, effective June 17, 1978.

267.160. Viewers’ classification of land for assessment — Rate of assessment.

  1. The viewers shall meet on the day named in the notice provided by KRS 267.150 , or as soon thereafter as practicable, and proceed with their work, for which the clerk shall furnish them with the duplicate plan of drainage adopted by the board. As soon after their first meeting as possible, the viewers shall examine the land in the district; the railroad property in the district; all other improvements, highways and bridges that may be affected by the proposed improvement; and all ditches, drains, ponds, lakes, creeks and watercourses in the district, or that are partly within and partly without the district. A majority of the viewers shall control and decide all questions.
  2. The viewers shall classify the land in the district with reference to the benefit it will receive from the improvement. In the case of drainage, the degree of wetness of the land, its proximity to the ditch or a natural outlet and the fertility of the soil shall be considered in determining the amount of benefit it will receive by the construction of the ditch. Except as provided in subsection (3) of this section, the land benefited shall be separated into five classes. The land receiving the highest benefit shall be marked “Class A”; that receiving the next highest, “Class B”; that receiving the next highest, “Class C”; that receiving the next highest, “Class D”; and that receiving the smallest benefit, “Class E.” The holding of any one landowner need not be all in one class, but the number of acres in each class shall be ascertained, though its boundary need not be separately marked on the ground nor shown on the map. The total number of acres owned by one (1) person in each class and the total number of acres benefited shall be determined. The total number of acres of each class in the entire district shall be determined and presented in tabulated form. The scale of assessment to be made by the board upon the several classes of land returned by the viewers shall be in the ratio of five (5), four (4), three (3), two (2) and one (1). Whenever five (5) mills per acre are assessed against the land in “Class A,” four (4) mills per acre shall be assessed against the land in “Class B,” three (3) mills per acre in “Class C,” two (2) mills per acre in “Class D,” and one (1) mill per acre in “Class E.” This shall form the basis of the assessment of benefits to the land for drainage purposes, and in calculating the assessment against each landowner the board shall follow the classification.
  3. If the viewers believe that existing conditions would cause substantial injustice to any landowner by strict conformity to the five-class rule, the classification may be changed by diminishing or increasing the number of classes to conform to such conditions, or the viewers may report the benefits they estimate will accrue to each tract of land without dividing the land into classes. If the classification is changed the viewers shall indicate to the board the ratio of assessment for such changed classification as compared with the five-class rule.

History. 2380-10.

267.170. Report of viewers on classification — Estimate of cost of improvement.

The viewers shall keep an accurate account and report to the court the name of each person employed on the survey, the kind of work done, the number of days employed, any expenses that have been incurred in going to and from the work, and the cost of any supplies or material that have been used in making the survey. If the work is delayed by any good cause and the report is not completed at the time fixed by the court, the viewers shall appear before the court and state in writing the cause of such failure and ask for sufficient time to complete the work, whereupon the court shall set another date by which the report shall be completed and filed. The viewers shall not modify the adopted plan for drainage. The report shall contain a statement of the estimated cost of the works and improvements to be made in the district, a description of all the land in said district and the names of the owners thereof, and a general description of all the railroad rights-of-way, roadbeds and depot grounds, and the name of the corporation to which they belong at the date of the decree of the court organizing the district. The report shall also contain a statement of the estimated benefits per acre that will accrue to each class of land by reason of the proposed improvement, and each tract of land shall be assessed according to benefits as shown by the report.

History. 2380-10.

267.180. Cost of construction and assessment of benefits when improvement crosses highway.

When any improvement crosses a public street or highway, the actual cost of constructing it across the street or highway, or removing old bridges or building new ones, shall be paid out of the fund of the drainage district. When any street or highway in the district is benefited by an improvement, the viewers shall assess and give in their report the amount of benefit to the street or highway, and process shall be issued against the county or city owning or controlling it. Such county or city shall have the right to appear before the court and file its exceptions the same as any landowner, and shall be liable for and shall pay the amount finally assessed against it, which may be recovered by suit in the name of the board.

History. 2380-11.

NOTES TO DECISIONS

Cited:

McFarland v. Burns, 233 Ky. 650 , 26 S.W.2d 548, 1930 Ky. LEXIS 634 ( Ky. 1930 ).

267.190. Railroad property benefited shall be assessed.

The viewers shall assess the benefits that will accrue to the property of any railroad company by affording better drainage or a better outlet for drainage, but no benefits shall be assessed because of the increase in business that may come to any railroad company because of the improvement. The benefits shall be assessed at a fixed sum, determined solely by the physical benefit that its property will receive by the improvement. The viewers shall report it as a special assessment due personally from the railroad company. It may be collected like an ordinary debt. The county clerk shall issue process against the railroad company, and it shall have the same right to file exceptions and to appeal as individual landowners, but an appeal shall not delay or defeat the construction of the improvement.

History. 2380-12.

267.200. Viewers shall assess damages.

The viewers shall assess the damages claimed by anyone that is justly right and due to him for property taken, injured or destroyed because of an improvement, or for any other legal damages sustained, including the actual estimated amount saved on account of private ditches utilized. Such damage shall be considered separate from any benefit the land would receive because of the proposed work, and shall be paid by the board when funds come into its hands. If any person agrees to waive the damages, the agreement shall be written and filed by the viewers with their report.

History. 2380-14.

NOTES TO DECISIONS

1.Constitutionality.

The drainage and reclamation act of 1912 did not violate Ky. Const., §§ 13, 242 because it failed to require that compensation be paid before the property was taken or destroyed and failed to make adequate provision for securing compensation at any time because this section provides that the commissioners shall pay the damages when the funds come into their hands and KRS 267.290 –267.320 and KRS 267.370 provide an adequate method for raising the funds. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ).

2.Construction.

Fairly construed, this section provides for the payment of damages in all cases where damages have been suffered, except where the landowner agrees to waive his right to damages. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ).

3.Waiver of Damages.

In case of persons without legal capacity to claim or waive damages, it will be the duty of viewers to assess the damages, and if any case actually arises where a person’s property has been taken without just compensation, the provisions of the Constitution will afford him adequate relief. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ).

267.210. Viewers’ final report — Notice — Hearing.

When the final report of the viewers is completed and filed, it shall be examined by the county judge/executive, and if it is found to be legal and in due form it shall be accepted, and if not it may be referred back to the viewers with instructions to secure further information, to be reported at a subsequent date fixed by the county judge/executive. The chief engineer shall examine the report, and may recommend any changes in the plan of drainage for final adoption by the board. Such changes, when adopted, shall become a part of the plan. When the report is completed and accepted by the county judge/executive, with any changes in the plan adopted by the board, a date not less than twenty (20) days thereafter shall be fixed by the county judge/executive for the final hearing upon the report, and notice shall be given by publication pursuant to KRS chapter 424, and by posting a notice on the door of the courthouse in each county in which land affected is assessed, and at five (5) conspicuous places throughout the district. During this time a copy of the report shall be on file in the office of the county clerk in which the proceeding is pending, and shall be open to the inspection of any landowner or person interested within the district.

History. 2380-15: amend. Acts 1966, ch. 239, § 182; 1978, ch. 384, § 406, effective June 17, 1978.

NOTES TO DECISIONS

1.Constitutionality.

In view of the provisions of this section, KRS 267.290 , 267.300 , 267.350 and 267.370 , the drainage and reclamation act of 1912 did not violate Ky. Const., § 242 in that it deprived any person of the right of appeal from any preliminary assessment of damages or the right of trial by jury on such appeal. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ).

2.Waiver of Objections.

By failing to file exceptions to the viewers’ report, landowners before the court necessarily waived any objections to matters contained therein. Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ).

Cited:

McFarland v. Burns, 233 Ky. 650 , 26 S.W.2d 548, 1930 Ky. LEXIS 634 ( Ky. 1930 ).

267.220. Court shall refer proceeding to board.

When the district is declared established, and the final report of the viewers approved or confirmed, the court shall refer the whole proceeding to the board for further proceedings.

History. 2380-18.

NOTES TO DECISIONS

1.Jurisdiction.

The county court does not necessarily lose jurisdiction when, after the viewers’ final report has been confirmed, the proceeding then pending in court is referred to the board of drainage commissioners for further proceedings. Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ).

267.230. Drainage record — Copy filed in any county affected.

The county clerk of each county shall provide a suitable record book to be known as the “drainage record,” in which he shall enter or copy every order, report, judgment or finding concerning the district. When land in any other county is affected, copies of all such records shall be made by the clerk, and they, together with a copy of all maps and profiles, shall be certified by him to the county clerk of the other county, where they shall be recorded in like manner.

History. 2380-17.

267.240. Construction contract — Bond — Board may construct.

  1. Upon final reference to it by the court of any drainage proceedings, the board shall give notice by publication pursuant to KRS Chapter 424 in the county in which the improvement is located, of the time and place of letting the work of construction and of the approximate amount of work to be done and the time fixed for its completion. On the date appointed for the letting the board, together with the chief engineer, shall convene and let the work to the lowest responsible bidder, either as a whole or in sections, as they may deem most advantageous for the district. No bid shall be entertained that exceeds the estimated cost unless for good reasons it is shown that the original estimate was erroneous. The board may reject all bids and advertise again, if it believes it will be in the interest of the district to do so. The board may employ persons and teams and lease, rent, hire or purchase machinery and equipment, and directly construct the improvement according to the plans and specifications, without letting a contract. The board may exercise the same power in cleaning out, straightening and reconstructing old public ditches, but the expense in any case shall not exceed the estimate of the drainage engineer for the work.
  2. If the board accepts a bid, the successful bidder shall be required to enter into a contract with the board and to execute a bond for the faithful performance of such contract, with sufficient sureties, in favor of the board for the use and benefit of the district, in an amount equal to fifty percent (50%) of the estimated cost of the work awarded to him. The board may maintain action for breach of the contract against any contractor and the sureties on his bond, and in case of breach of the contract the work may be advertised and relet in the same manner as the original letting.

History. 2380-26, 2380-28: amend. Acts 1966, ch. 239, § 183; 1974, ch. 386, § 53.

NOTES TO DECISIONS

1.Notice.

Provision of subsection (1) of this section that the notice shall fix time for completion of the work is not mandatory in the sense that a contract fairly entered into is vitiated because a specified time for construction is not fixed in the advertisement, for if the time is not so fixed the parties must be regarded as having agreed that the work will be completed within a reasonable time. Porter v. Moore, 200 Ky. 95 , 252 S.W. 97, 1923 Ky. LEXIS 3 ( Ky. 1923 ).

2.Estimated Cost.

The estimate of cost is erroneous if the work cannot be done for that figure, whether this condition be due to a mistake of the viewers when the estimate was made or to an unexpected increase in cost of materials and labor. Board of Drainage Comm'rs v. Reichert, 189 Ky. 81 , 224 S.W. 470, 1920 Ky. LEXIS 378 ( Ky. 1920 ).

Where estimate is erroneous, the fact that estimate will be exceeded furnishes no reason why the board should not perform its statutory duty to advertise and let the work. Board of Drainage Comm'rs v. Reichert, 189 Ky. 81 , 224 S.W. 470, 1920 Ky. LEXIS 378 ( Ky. 1920 ).

3.Repudiation of Contract.

There was such an abandonment of the contract by the contractor as amounted to a repudiation thereof, and warranted the board in reletting the work and suing for damages. Board of Drainage Comm'rs v. H. J. Peterson & Co., 196 Ky. 130 , 244 S.W. 322, 1922 Ky. LEXIS 474 ( Ky. 1922 ).

267.250. Payment for work in installments — Warrants.

The chief engineer in charge of construction shall make monthly estimates of the amount of work done, and furnish one (1) copy to the contractor and file the other with the secretary of the board. The board shall meet within five (5) days after the filing of such estimate, and if it approves the estimate it shall direct the secretary to draw a warrant in favor of the contractor for eighty percent (80%) of the work done, according to the specifications and contract. When the warrant, properly signed by the president and secretary, is presented to the treasurer of the drainage fund, he shall pay the amount due thereon out of any funds in his hands to the credit of that district. When the work is fully completed and accepted by the chief engineer, he shall make an estimate for the whole amount due, which shall then be paid from the drainage fund on warrants as above provided. If there are insufficient funds in the treasury to pay any warrant presented for payment, that fact shall be endorsed on the back of the warrant and the warrant shall thereafter draw interest at the rate of six percent (6%) per annum until there is money on hand sufficient to pay the warrant and accumulated interest.

History. 2380-27, 2380-47.

267.260. Contractor’s right of access — Obstructions.

In the construction of the work the contractor may enter upon any land necessary for this purpose, and may remove any bridge or fence and cross private land in going to or from the work. If the right-of-way of the improvement is through timber, the owner may remove it before the work begins. If it is not removed by the landowner, it shall become the property of the contractor and may be removed by him. All logs, stumps and similar obstructions shall be cleared off the right-of-way for its full width by the contractor.

History. 2380-29.

267.270. Method of construction when improvement crosses railroad property — Cost.

  1. After the contract is let and the actual construction is commenced, if the work is being done with a floating dredge, the superintendent in charge of construction shall notify any railroad company of the probable time at which the contractor will be ready to enter upon its right-of-way and construct the work thereon. The railroad shall send a representative to view the ground with the superintendent of construction and arrange the exact time at which such work can most conveniently be done. At the agreed time the railroad company shall remove any obstructions necessary to permit the dredge to excavate the channel across its right-of-way. The work shall be so planned and conducted as to interfere in the least possible manner with the railroad’s business.
  2. Within thirty (30) days after the work is completed, an itemized bill for the actual expense incurred by the railroad company for opening its tracks shall be made and presented to the superintendent of construction. This bill shall not include the cost of putting in a new bridge or strengthening or enlarging an old one. The superintendent of construction shall audit this bill, and if found correct shall approve and file it with the secretary of the board. The board shall deduct the cost of the excavation done by the dredge on the right-of-way of the railroad company at the contract price, and pay any difference to the railroad.

History. 2380-13.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate Ky. Const., § 242, as it is an exercise of the police power of the state. Louisville & N. R. Co. v. Board of Drainage Comm'rs, 183 Ky. 282 , 209 S.W. 15, 1919 Ky. LEXIS 466 ( Ky. 1919 ).

2.Expense.

This section expressly imposes upon railroad companies the expense of a new bridge and of closing its tracks, made necessary by the enlargement of a natural watercourse across its right-of-way. Louisville & N. R. Co. v. Board of Drainage Comm'rs, 183 Ky. 282 , 209 S.W. 15, 1919 Ky. LEXIS 466 ( Ky. 1919 ).

Railroad could not recover expenses for opening its tracks to allow floating dredge to pass through its right-of-way, after compromise whereby landowners agreed not to file exceptions to assessment against railroad. Louisville & N. R. Co. v. King, 216 Ky. 736 , 288 S.W. 733, 1926 Ky. LEXIS 1006 ( Ky. 1926 ).

267.280. Condemnation of land not affected by drainage.

If it is necessary to acquire a right-of-way or any outlet over or through lands not affected by the drainage, and the same cannot be acquired by purchase, the same may be condemned by the board. The owners of the land sought to be condemned shall be made parties to the proceeding, and the procedure shall be substantially as provided in the Eminent Domain Act of Kentucky. The damages awarded shall be paid by the board out of the first funds available, before the land is taken, injured or destroyed, unless the party entitled thereto waives payment in advance.

History. 2380-16: amend. Acts 1976, ch. 140, § 100.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

ALR

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

267.290. Assessment roll and statement of cost — What to include.

After the classification of the land and the ratio of assessment of the different classes has been confirmed by the county judge/executive, the board shall prepare an assessment roll or drainage tax duplicate, giving a description of all the land in the district, the name of the owner, so far as can be ascertained from the public records, and the amount of assessment against each tract of land. In preparing this assessment roll the board shall ascertain the total cost of the improvement, including the damages awarded to the owners of land and private ditches, the costs of the proceeding and all wages paid or to be paid, including the wages of the treasurer and employees of the board, and shall deduct any special assessment made against any railroad or highway. The remainder shall be the amount to be paid by the land benefited. This amount shall be assessed against the land according to the benefit received, as shown by the classification and ratio of assessment made by the viewers and confirmed by the court. Attached to this drainage assessment roll or filed with it shall be a statement of the cost of the work to be done, including the damages awarded to the owners of land and private ditches, the costs of the proceeding, all wages, salaries and fees, including fees to attorneys, engineers and other agents, and all other expenses, with five percent (5%) in addition to meet any unforeseen contingencies. This drainage tax roll and statement of cost shall be made in duplicate and signed by the president and secretary of the board. One (1) copy shall be filed with the secretary of the board and the other with the county clerk in the county in which the proceeding is pending.

History. 2380-31: amend. Acts 1978, ch. 384, § 407, effective June 17, 1978; 1984, ch. 111, § 193, effective July 13, 1984.

NOTES TO DECISIONS

1.Constitutionality.

The imposition of special taxes is not within the prohibition of the U.S. Const., Amend. 14. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

2.Construction.

Assessments of special taxes are not taxes within the meaning of Ky. Const., §§ 157 and 158. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

3.Taxing Power.

The assessing of lands for the cost of drains, where their construction will result in public benefit, promote the public health, and be conducive to the general welfare, is a proper and lawful exercise of the inherent taxing power of the state. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

The assessment of special taxes upon lands, such as are assessed for the construction and maintenance of public drainage ditches, can only be justified upon the grounds that they are imposed to pay for local improvements which confer special benefits upon the lands assessed, and only to the extent of such benefits. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Book v. Trigg, 186 Ky. 664 , 217 S.W. 1013, 1920 Ky. LEXIS 21 ( Ky. 1920 ).

267.300. Hearing on assessment roll and statement — Notice — Appeal — Filing approved roll.

  1. When the copies of the assessment roll and statement of costs are filed with the county clerk, the clerk shall give notice, by publication pursuant to KRS Chapter 424 in the county, of the filing of the assessment roll and statement, and that they will be heard on a date specified, which shall be not less than fifteen (15) nor more than thirty (30) days after the date of filing. The clerk shall also cause notices to be posted on the front door of the courthouse and in five (5) public places in the district more than ten (10) days prior to the hearing.
  2. The county judge/executive shall hear in a summary way any objections to the cost of the improvement and to the assessment of land, and shall enter an order confirming the assessment roll or directing the board to change it in accordance with the finding of the court. No question or objection that could have been raised to the final report of the viewers or at any time before the filing of the assessment roll or statement of cost can be raised by exceptions to the assessment roll or statement of costs. The order of the county judge/executive shall be final and may be appealed from in the same manner as from orders confirming a report of the viewers.
  3. The order shall direct the county clerk to certify to the county treasurer a copy of the assessment roll as filed by the board or as changed by the court. One (1) copy of the assessment roll shall be retained by the clerk and recorded as part of the drainage record. If land in any other county is assessed, another copy of the assessment roll so far as it relates to land in that county shall be filed with the county clerk of that county.

History. 2380-31: amend. Acts 1966, ch. 239, § 184; 1978, ch. 384, § 408, effective June 17, 1978.

NOTES TO DECISIONS

1.Constitutionality.

As the fixing of the assessment is submitted to a court of justice before it becomes effective, with notice to the landowners and with right on their part to appear and contest the assessment, this is due process of law within the meaning of the federal constitution. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ).

267.310. Payment and collection of assessments when average below twenty-five cents ($0.25) per acre.

If the total assessment against the land is less than an average of twenty-five cents ($0.25) per acre, the assessments shall be collected in one installment. In that case, after the assessment roll has been made out and one (1) copy delivered to the county treasurer, as provided in KRS 267.300 , notice thereof shall be given by publication pursuant to KRS Chapter 424, and by posting one (1) notice at the courthouse door in each county in which land assessed is located. At any time within thirty (30) days thereafter, any landowner may pay the assessment against his land to the treasurer, who shall enter proper credit on the assessment roll. After said thirty (30) days the board shall recover the assessment roll from the treasurer and deliver it to the sheriff, accompanied by an order to collect the unpaid assessments. The sheriff shall proceed to collect the assessments. If land in any other county is assessed, a copy of the assessment roll, insofar as it relates to that land, shall be certified to the sheriff of that county. The roll, when placed in the hands of the sheriff, shall have the same effect as a tax against the land assessed, and shall be collected in the same manner as state and county taxes, except that the sheriff shall add to each assessment shown the amount of his commission. If not paid by December 1 following the date of certification or order to collect, a penalty of six percent (6%) shall be added.

History. 2380-32: amend. Acts 1966, ch. 239, § 185.

267.320. Bonds authorized when average assessment exceeds twenty-five cents ($0.25) per acre — Failure to pay assessment is consent to bonds.

  1. If the total assessment exceeds the average of twenty-five cents ($0.25) per acre on all the land assessed, the board may give notice by publication pursuant to KRS Chapter 424, and by posting a notice at the door of the courthouse in each county in which land assessed is located, and at five (5) conspicuous places in the district, that it proposes to issue bonds for the construction of the improvement, giving the amount of bonds to be issued, the rate of interest they are to bear and the time when payable. Any landowner having land assessed in the district and not wanting to pay interest on the bonds may, within thirty (30) days after the publication of the notice, pay the county treasurer the full amount of his assessment and have his land released. If the landowner produces a treasurer’s receipt showing such payment, the county clerk or the secretary of the board shall indorse the release upon the assessment roll, and report to the board all releases made by him. This report shall be recorded on the record or minutes of the board. When the board is satisfied that any assessment has been paid it may order a release made.
  2. Each person owning land assessed in the district who fails to pay the full amount of his assessment within thirty (30) days after publication of the notice shall be deemed to consent to the issuing of bonds, and in consideration of the right to pay his assessment in installments he thereby waives his right to any defense against the collection of the assessment because of any irregularity, illegality or defect in the proceeding prior to that time, except in the case of an appeal, which is not affected by this waiver.

History. 2380-32, 2380-33: amend. Acts 1966, ch. 239, § 186.

NOTES TO DECISIONS

1.Constitutionality.

Insofar as this section undertakes to deny the landowner all remedy for any substantial wrong that is attempted to be perpetrated upon him by the collection of any improper assessment made against his lands, because he refuses to pay the wrongful assessment within 30 days, and assumes that, for that reason, he has agreed to pay it in annual instalments, it violates Ky. Const., §§ 2 and 14, and U.S. Const., Amend. 14, and is invalid. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Board of Drainage Comm'rs v. Lang, 187 Ky. 123 , 218 S.W. 736, 1920 Ky. LEXIS 89 ( Ky. 1920 ).

2.Assessments.

Property cannot be assessed for more than its just share of burden of constructing drainage ditch. Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ).

3.— Notice.

If no notice of the county court’s action to approve and confirm a drainage assessment is given a landowner affected, he may enjoin the tax for that reason or any other reason rendering the tax invalid. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Patterson v. Glover, 235 Ky. 755 , 32 S.W.2d 338, 1930 Ky. LEXIS 464 ( Ky. 1930 ).

4.— Failure to Object.

Landowners cannot, after establishment of district and levy of taxes to pay for construction, raise questions they could have raised during progress of litigation by which district was established and assessments made. Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ).

A landowner who fails to raise by exception in county court an objection to the amount or validity of a drainage assessment, after due notice, may not maintain an independent action for injunctive relief on ground that the assessment is void. Patterson v. Glover, 235 Ky. 755 , 32 S.W.2d 338, 1930 Ky. LEXIS 464 ( Ky. 1930 ).

5.— Exemption.

Landowners cannot contract to get benefit of drainage ditch and to secure for their property an exemption from assessment for its just share of the cost of construction. Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ).

Parties to drainage proceeding cannot, in advance of establishment of district, contract with other parties interested that the assessment against their property shall never exceed $12.50 per acre, which they may pay in 10 equal instalments without interest, in consideration for which concession they will withdraw their exceptions and permit ditch to be established. Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ).

267.330. Issuance and sale of bonds — Collection of assessment installments.

  1. At the expiration of thirty (30) days after publication of the notice required by KRS 267.320 , the board may divide the unpaid assessments into annual installments, not less than two (2) nor more than thirty (30), which shall draw interest at the rate or rates or method of determining rates, payable at least annually, from thirty (30) days after the date of publication, and may issue bonds to anticipate their collection, which bonds shall mature in series to correspond with the installments into which the unpaid assessments are divided. The bonds shall draw interest at the rate or rates or method of determining rates, payable at least annually, as the board determines and be payable at some place designated by the board. The bonds shall be for the exclusive use and benefit of the district, and shall designate on their face the name of the district and the purpose for which they were issued. The board, in dividing the unpaid assessments into installments, shall fix the time for payment in each year so that each installment will be due at least one hundred and twenty days (120) before the bonds issued to anticipate the collection of that installment become due. Each landowner whose land is in lien for the payment of the bonds shall pay to the treasurer each installment due against his land, with all interest due at that time on that installment and deferred installments, on or before the time fixed by the board for the maturity of the installment.
  2. On the first Monday after any installment is due, the board shall meet and ascertain the persons whose installments are in default, and shall, on that date, issue warrants to the sheriff directing him to collect those installments. The sheriff shall collect each installment with interest due on that and deferred installments, together with a penalty of six percent (6%), as state and county taxes are collected, and settle with the board within sixty (60) days from the date the installments were certified to him, and pay to the board the money collected.
  3. All land upon which the money due on any installment has not been collected at the end of the said sixty (60) days shall be advertised and sold by the sheriff in the same manner as is provided in the case of state and county taxes. The sale shall be subject to the future installments of the assessments. At the expiration of ninety (90) days from the date of the original certification of the installment to the sheriff, he shall make final settlement with the board and pay to it all money in his hands. If he fails to do this the board may compel him to make settlement by rule against him issued by the court in which the proceeding is pending, after giving him five (5) days’ notice in writing. If any land is not purchased at the sale, the sheriff shall purchase it for the district, and in his final settlement with the board shall take a credit. The sheriff shall certify each sale to the county clerk, as required in the sale of land for state and county taxes, and the clerk shall record the sale in the land sale book kept by him. For collecting the assessments certified to him the sheriff shall be paid by the board the same fees allowed him for collecting state and county taxes and in the same manner. For recording the certificate of sale the clerk shall be paid the same fees allowed him by law for similar work in reference to state and county taxes. The owner of the land, or his representatives, heirs or assigns, may redeem the land from the sale in the manner and within the time provided for the redemption of land sold for state and county taxes. Any sheriff who fails to settle and pay off any installment with interest within the proper time shall be liable to the board for the full amount certified to him, with interest. This may be collected from the sheriff by rule issued against him by the court in which the proceeding is pending on five (5) days’ written notice. The sheriff shall be liable upon his bonds for his acts done and for the faithful performance of his duties under this section.
  4. This section does not deprive the holder of any bond from having all rights by mandamus or otherwise against the board, the sheriff or any other officer or agent of the district having duties to perform under this section.

History. 2380-34: amend. Acts 1978, ch. 384, § 409, effective June 17, 1978; 1996, ch. 274, § 59, effective July 15, 1996.

NOTES TO DECISIONS

1.Issuance.

While bonds may be sold and issued before the work is begun, the work shall be commenced within a reasonable time, and the bonds cannot be dated two (2) years back and bear interest during the delay. Weikle v. Board of Drainage Comm'rs, 192 Ky. 797 , 234 S.W. 612, 1921 Ky. LEXIS 161 ( Ky. 1921 ).

2.Interest.

The only reason for requiring interest on the assessments is to meet interest on the bonds, and if bonds should not bear interest the assessments should not. Weikle v. Board of Drainage Comm'rs, 192 Ky. 797 , 234 S.W. 612, 1921 Ky. LEXIS 161 ( Ky. 1921 ).

3.Bondholders.
4.— Lien.

The lien of bondholders extends only to those lands upon which the assessments have not been paid, and the bondholders cannot force an additional assessment to pay the bonds where the original assessment was not sufficient. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

Where land subject to drainage assessments has been sold at judicial sale in a proceeding to enforce collection of delinquent assessments, the purchaser at the sale takes the land free from any lien as to past due assessments, and the land cannot be reassessed to supply any deficiency in the collection of the delinquent assessments resulting from the failure of the sale to bring a sufficient amount to pay the delinquent assessments in full. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

5.— Recovery.

A mandamus or mandatory injunction proceeding, in which all questions may be decided and full and complete relief afforded, is the sole and exclusive remedy of an owner of drainage bonds, and he may not obtain a personal judgment against the drainage district. Caldwell & Co's Ancillary Receiver v. Landrum, 260 Ky. 77 , 83 S.W.2d 876, 1935 Ky. LEXIS 413 ( Ky. 1935 ).

Where a portion of the proceeds of the sale of land in a proceeding to enforce collection of delinquent drainage assessments was paid to persons holding unsecured claims against the drainage district, with the result that the bonds were not paid in full, the bondholders could not recover from such persons the sums paid to them, in the absence of proof that the payments were illegal. In any event, such persons could not be joined in an action of mandamus to compel the drainage board to make a reassessment to pay the bonds. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

Cited:

McManama v. Johnson, 283 Ky. 156 , 140 S.W.2d 1022, 1940 Ky. LEXIS 307 ( Ky. 1940 ).

267.340. Refunding bonds.

Refunding bonds may be issued and sold, and assessments may be levied and collected to retire the refunding bonds, in the manner provided in KRS 269.010 to 269.050 .

History. 2380-34.

267.350. Board or court may change assessment — Relevy.

  1. When the county judge/executive has confirmed an assessment for any improvement and it has been modified by a court of superior jurisdiction, or for some unforeseen cause it cannot be collected, the board may change the original assessment to conform to the judgment of the court and to cover any deficit caused by the order of the county judge/executive, or unforeseen occurrence.
  2. In any other case where, for any cause, it is ascertained that the amount assessed against the property in the district is not sufficient to complete the improvement provided for, and a petition is filed by the board, or any three (3) or more of the original petitioners, or by the board and three (3) or more of the petitioners, stating the amount of the deficit, the causes thereof and the amount necessary to be raised in order to complete the work, and asking an additional assessment and levy, the county judge/executive shall cause the county clerk to give notice of the filing and purpose of the petition, and shall fix a time between ten (10) and twenty (20) days from the giving of the notice when the petition will be acted upon, and exceptions, answers or objections received. The notice shall be published pursuant to KRS Chapter 424, and posted in at least three (3) public places in the district. Such publication shall be sufficient notice of the proceeding to all parties affected. Upon hearing, if the county judge/executive finds that the additional assessment and levy asked for in the petition are necessary and ought to be made in order to complete the work, he shall direct such assessment and relevy to be made by the board.
  3. Any additional assessment and relevy made under this section shall be made in the same ratio on the land benefited as the original assessment, and shall be collected in the same way.

History. 2380-35: amend. Acts 1966, ch. 239, § 187; 1978, ch. 384, § 410, effective June 17, 1978.

NOTES TO DECISIONS

1.Increased Cost.

Drainage district had authority under subsection (1) of this section to make an additional levy to pay the increased cost of the project on account of the necessity of building certain bridges and to cover the amount when the completion of the project disclosed it cost more than the original estimate. McKinney v. Holt, 211 Ky. 512 , 277 S.W. 851, 1925 Ky. LEXIS 910 ( Ky. 1925 ).

267.360. Liability of successor in title — Contribution between several owners.

Any person who acquires title to any land affected by any proceeding under this chapter after the preliminary report of the viewers is filed shall be deemed privy to the person owning or in possession under claim of ownership at the time the preliminary report is filed, and shall be bound to the same extent as the owner at that time would be bound if he had remained the owner. The land assessed shall be liable for the assessment against it, and each assessment or installment shall be paid by the owner in possession at the time it becomes due, but as between vendor and purchaser, and in the absence of any agreement to the contrary, the owner in possession at the time any assessment is certified by the board for collection shall be liable for the tax. Any land in which one person owns the life estate, with the remainder to another, shall be assessed and classified by the viewers as any other land, and the names of both life tenant and remainderman reported, if known, and both brought before the court. The tax shall be assessed against each such tract of land, and may be paid by either the life tenant or the remainderman. When so paid the one not paying shall be liable to the one who has paid for such proportion of the amount paid as his interest in the property bears to the total property assessed, according to the life tables at the time in use in this state. To secure contribution the person paying the assessment shall have, for his own benefit, the same lien that is provided for the original tax, which may be enforced by action in any court of competent jurisdiction. In like manner an owner of an undivided interest in land assessed may pay the whole assessment and be entitled to like contribution and substitution.

History. 2380-42.

NOTES TO DECISIONS

1.Seller or Purchaser.

This section seems to take assessments for drainage purposes out of the general rule, and to require the purchaser of land in all such cases, whether at private or public sales, to assume and pay all taxes which were not due at the time of purchase, and to require the vendor to pay taxes due at time of sale of land. Liberty Ins. Bank v. Vance, 213 Ky. 352 , 281 S.W. 169, 1926 Ky. LEXIS 515 ( Ky. 1926 ); United States Nat'l Bank v. Young, 217 Ky. 312 , 289 S.W. 273, 1926 Ky. LEXIS 73 ( Ky. 1926 ).

267.370. Lien of assessments — Enforcement.

  1. The assessment roll and each assessment installment shall be a paramount lien against the lands assessed, subject only to the lien for state and county taxes.
  2. Any lien established under this chapter may be enforced by an action in the Circuit Court without regard to the amount of the claim, at any time after December 1 of the year for which the assessment was levied, at which time all unpaid assessments shall become delinquent. The suit shall be brought by the board against the property on which the assessment has not been paid. The suit shall be brought in the county in which the property lies, unless the property sued upon lies in more than one county, in which event the suit may be brought on the whole property in any county in which any part of it lies. In all other respects actions to enforce these liens shall be the same as actions for the enforcement of other liens, but the right to institute such actions shall not prevent sales by the sheriff as in cases of delinquent state and county revenue. The title acquired through any sale of land under this section shall be subject to the lien of all subsequent annual installments of assessments. In all suits for the collection of delinquent assessments the judgment shall include all costs of suit and a reasonable attorney’s fee to be taxed by the court. The proceeds of sales made under this section shall be paid into the treasury of the district, and accounted for by the treasurer the same as the assessments.

History. 2380-31, 2380-34, 2380-45.

NOTES TO DECISIONS

1.Additional Assessment.

The bondholders cannot force an additional assessment to pay the bonds where the original assessment was not sufficient. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

2.Limitation on Enforcement of Lien.

A drainage assessment lien is a liability created by statute, and not one created by judgment, so an action to enforce the lien is governed by the five-year statute of limitations. Board of Drainage Comm'rs v. Igleheart, 301 Ky. 596 , 192 S.W.2d 364, 1945 Ky. LEXIS 750 ( Ky. 1945 ).

3.Extent of Lien.

The lien of bondholders extends only to those lands upon which the assessments have not been paid. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

4.Sale of Land.

Where board of drainage commissioners was purchaser of land at invalid sale for drainage taxes, the board’s original lien on land and on fund from sale of timber thereon remains in force. Board of Drainage Comm'rs v. Alexander, 235 Ky. 689 , 32 S.W.2d 22, 1930 Ky. LEXIS 438 ( Ky. 1930 ).

Where land subject to drainage assessments has been sold at judicial sale in a proceeding to enforce collection of delinquent assessments, the purchaser at the sale takes the land free from any lien as to past due assessments, and the land cannot be reassessed to supply any deficiency in the collection of the delinquent assessments resulting from the failure of the sale to bring a sufficient amount to pay the delinquent assessments in full. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

Where a portion of the proceeds of the sale of land in a proceeding to enforce collection of delinquent drainage assessments was paid to persons holding unsecured claims against the drainage district, with the result that the bonds were not paid in full, the bondholders could not recover from such persons the sums paid to them, in the absence of proof that the payments were illegal. In any event, such persons could not be joined in an action of mandamus to compel the drainage board to make a reassessment to pay the bonds. Anderson v. Board of Drainage Comm'rs, 293 Ky. 449 , 169 S.W.2d 289, 1943 Ky. LEXIS 639 ( Ky. 1943 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Enforce Collection of Assessments (Act of 1912), Form 338.01.

ALR

Superiority of special or local assessment lien for drains over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority. 75 A.L.R.2d 1121.

267.380. Validity of proceeding — Irregularities — Remedies — Releases.

The assessment roll made up by the board shall be prima facie evidence in all courts that all steps necessary to be taken under this chapter have been properly taken, and that all proceedings are regular and valid. The collection of any assessment shall not be defeated, where the parties are properly before the court, on account of any irregularity in the proceeding that does not affect the substantial rights of the party complaining. Any party or his privies properly before the court under the Rules of Civil Procedure shall be deemed to be before the court for all purposes, and shall be bound by all orders, judgments and proceedings in the case not excepted to or appealed from, in the manner provided for in this chapter. The remedies provided for in this chapter are exclusive of all other remedies. If on appeal or otherwise, or for any cause, any person or property is released, or any assessment raised or lowered, it shall not affect the rights or liability of any other property or person. The failure to appeal within the time prescribed in this chapter shall be a waiver of any right to attack the proceedings.

History. 2380-45, 2380-49.

NOTES TO DECISIONS

1.Purchaser’s Title.

A judgment may be erroneous, yet purchaser at sale under it may get good title; it is only when judgment is void that purchaser gets nothing. Burns v. Rich, 238 Ky. 123 , 36 S.W.2d 833, 1931 Ky. LEXIS 177 ( Ky. 1931 ).

2.Undetermined Heirs.

Should former owner of land sold have other children in future, they would be bound by judgment of sale under doctrine of virtual representation. Burns v. Rich, 238 Ky. 123 , 36 S.W.2d 833, 1931 Ky. LEXIS 177 ( Ky. 1931 ).

3.Parties to Proceedings.

Parties properly before the court in drainage proceedings are bound by all orders and judgments entered by the court to which they did not except or file appeal. Nicely v. Hickman, 188 Ky. 258 , 221 S.W. 566, 1920 Ky. LEXIS 268 ( Ky. 1920 ); Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ); McFarland v. Burns, 233 Ky. 650 , 26 S.W.2d 548, 1930 Ky. LEXIS 634 ( Ky. 1930 ).

Where county was made a party to the proceedings for the establishment of the drainage district in which proposed ditch crossed a public highway, it was incumbent on the county to inspect the reports filed in the proceedings and ascertain whether or not the plans and specifications for any proposed bridge on any public highway were adequate and where county failed to make any investigation of the plans and specifications and made no exceptions to the viewer’s report and it was confirmed, it cannot question such matters in an independent action. McFarland v. Burns, 233 Ky. 650 , 26 S.W.2d 548, 1930 Ky. LEXIS 634 ( Ky. 1930 ).

267.390. Maintenance of improvements — Maintenance assessments.

  1. Except as otherwise provided in this chapter, all improvements made under this chapter, as well as all public ditches or drains established or constructed under pre-existing laws, shall be under the control and supervision of the board having jurisdiction of the proceedings for the establishment and construction thereof. The board shall keep all such improvements open, free from obstruction and in good repair. For that purpose the board may employ persons and teams, and lease, rent, hire or purchase machinery.
  2. For the purpose of providing funds to pay the compensation of the employees of the board, outside of that portion to be paid out of the original assessment on any district, and for the purpose of paying the expense of repairing, keeping open and looking after the various improvements under the charge of the board, the land in each district established under this chapter, as well as the land assessed for each public ditch or system of drainage established under pre-existing laws, shall be assessed in proportion to the original assessment made against the land for the original improvement, except that where a district has been established diverting the course of water, the board may, in order to relieve land taxed and from which water has been diverted, use funds of the district in maintaining the original watercourse.
    1. Except as provided in paragraph (b) of this subsection, no assessment in any one (1) year for the purposes prescribed in subsection (2) of this section shall exceed ten percent (10%) of the original assessment against the land, and no more than one (1) assessment shall be made in any one (1) year.
    2. In counties having seventy-five (75) or more separate drainage districts or in counties availing themselves of the provisions of this subsection as provided in KRS 267.495 , when a petition signed by a majority of the landowners in any drainage district is filed with and approved by the drainage commissioner, the latter may levy a maintenance assessment not exceeding thirty percent (30%) of the original assessment against the land. The number of assessments which may be levied shall be limited as follows: Where the assessment is ten percent (10%) but not over fifteen percent (15%) no more than one assessment may be levied during any eighteen (18) month period; where the assessment is sixteen percent (16%) but not over twenty percent (20%) no more than one assessment may be levied during any two (2) year period; where the assessment is twenty-one percent (21%) but not over twenty-five percent (25%) no more than one assessment may be levied during any two-and-one-half (2 1/2) year period; and where the assessment is thirty percent (30%) but not less than twenty-six percent (26%) no more than one assessment may be levied during any three (3) year period.
    3. No assessment shall be made until the board has prepared an assessment roll, in duplicate, stating the name of the owners of the land to be affected, and the amount proposed to be assessed against each tract of land. Both the assessment roll and the duplicate shall be signed by the president and secretary of the board. The original shall be kept on file in the office of the board and the duplicate shall be filed with the collector of the assessment. These additional assessments shall have the same effect as original assessments and be collected in the same manner. They shall be kept separate and deposited with the treasurer, who shall keep the accounts for each district separate. Each warrant drawn shall specify out of which account it shall be paid.
  3. The board may compromise and settle, upon such terms and conditions as it deems proper, any maintenance assessment made, levied or assessed prior to February 17, 1936, and may do everything necessary to release and discharge any claim, demand or lien upon land established, made or claimed prior to February 17, 1936, under or by reason of any such maintenance assessment.

History. 2380-7, 2380-39: amend. Acts 1944, ch. 41; 1956, ch. 235, § 4; 1974, ch. 386, § 54.

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutional insofar as it may purport to authorize assessment of land for maintenance tax unless it is necessary to repair ditch or system adjoining that particular tract of land. Henshaw v. Holt, 262 Ky. 19 , 89 S.W.2d 313, 1935 Ky. LEXIS 762 ( Ky. 19 35 ).

2.Jurisdiction.

The county court was without jurisdiction to establish drainage district covering same territory as one already organized, where petition stated object of proceeding was to clean out ditch theretofore established. Alms v. Burns, 206 Ky. 283 , 267 S.W. 241, 1924 Ky. LEXIS 368 ( Ky. 1924 ). See Board of Drainage Comm'rs v. Stephens, 213 Ky. 30 , 280 S.W. 456, 1926 Ky. LEXIS 442 ( Ky. 1926 ).

3.Obstruction.

Anything which obstructs a ditch, within limits of specifications adopted for its construction, is an obstruction. Book v. Trigg, 186 Ky. 664 , 217 S.W. 1013, 1920 Ky. LEXIS 21 ( Ky. 1920 ).

4.Assessment.

The assessment of special taxes upon lands, such as are assessed for the construction and maintenance of public drainage ditches, can only be justified upon the grounds that they are imposed to pay for local improvements which confer special benefits upon the lands assessed, and only to the extent of such benefits. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Book v. Trigg, 186 Ky. 664 , 217 S.W. 1013, 1920 Ky. LEXIS 21 ( Ky. 1920 ).

The board was authorized to levy maintenance assessments to deepen or enlarge a ditch to the specifications provided for its original construction, where contractor had failed to cut ditch to full depth specified. Book v. Trigg, 186 Ky. 664 , 217 S.W. 1013, 1920 Ky. LEXIS 21 ( Ky. 1920 ).

Liability of land for maintenance assessments is concluded by judgments creating and extending district. Holt v. Madison Coal Corp., 250 Ky. 76 , 61 S.W.2d 1064, 1933 Ky. LEXIS 640 ( Ky. 1933 ).

It will be presumed all lands embraced in a drainage district are benefited by its maintenance, although a condition may arise making it unnecessary to repair the ditch adjoining each particular parcel of land. Henshaw v. Holt, 262 Ky. 19 , 89 S.W.2d 313, 1935 Ky. LEXIS 762 ( Ky. 19 35 ).

5.— Adequacy.

When the 10% assessment authorized by this section for maintenance purposes is insufficient to provide the necessary funds to straighten, widen, deepen or otherwise improve drainage ditches which were inadequate as first constructed, proceedings to improve the ditches so as to provide for adequate drainage may be maintained in same manner as is provided for original establishment of a district. Board of Drainage Comm'rs v. Stephens, 213 Ky. 30 , 280 S.W. 456, 1926 Ky. LEXIS 442 ( Ky. 1926 ).

6.Maintenance.

Where it is not alleged the board has on hand sufficient funds to reconstruct, maintain and repair a drainage ditch, injured landowner cannot compel repair of ditch by board. Thrasher v. Knight, 237 Ky. 260 , 35 S.W.2d 282, 1931 Ky. LEXIS 576 ( Ky. 1931 ).

7.— Failure.

The board of drainage commissioners acts solely as an agency of the state in performance of governmental functions, and is not liable for the negligent or malicious acts of its servants in failing to keep ditch in repair. Dillingham v. Board of Drainage Comm'rs, 214 Ky. 263 , 283 S.W. 95, 1926 Ky. LEXIS 326 ( Ky. 1926 ); Bard v. Board of Drainage Comm'rs, 234 Ky. 263 , 27 S.W.2d 968, 1930 Ky. LEXIS 155 ( Ky. 1930 ); Thrasher v. Knight, 237 Ky. 260 , 35 S.W.2d 282, 1931 Ky. LEXIS 576 ( Ky. 1931 ).

8.Survey.

A circuit court may direct a survey of lands to obtain a description of the lands benefited by drainage system. Henshaw v. Holt, 262 Ky. 19 , 89 S.W.2d 313, 1935 Ky. LEXIS 762 ( Ky. 19 35 ).

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the Constitution. OAG 63-869 .

Research References and Practice Aids

Cross-References.

Withdrawal of land from district to avoid maintenance assessments, KRS 269.260 .

ALR

Discrimination between property within and that outside municipality or other governmental district as to rates. 4 A.L.R.2d 595.

Municipal liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains. 61 A.L.R.2d 874.

Municipal Liability for Damage Resulting from Obstruction or Clogging of Drain or Sewer, 54 A.L.R.6th 201.

267.400. Superintendent of drainage — Duties — Bond — Compensation.

The board may employ a competent person as superintendent of drainage, for such time as it deems necessary. He shall be subject to the orders of the board, and shall look after all improvements under charge of the board and keep them clean, open and in good condition. The superintendent shall furnish bond for the faithful performance of his duties, to be approved by the board and to be in such penal sum as the board prescribes, in favor of the board and for the benefit of any party in interest. If no superintendent is appointed, his work may be done by the chief engineer or some other employee designated by the board. The superintendent, with the approval of the board, may employ any assistance necessary to the performance of his duties. All expenses incurred shall be reported by the superintendent to the board, showing the improvement upon which the work was done or expense incurred. The superintendent shall receive a salary fixed by the board, not to exceed five dollars ($5) per day.

History. 2380-7, 2380-25.

267.410. Attorney for board — Agreement — Duties.

The board may employ an attorney. Such employment shall be evidenced by a written agreement which, as far as possible, shall specify the exact amount to be paid to the attorney for all services and expenses. The attorney shall conduct all legal actions in which the board is interested, and shall in all legal matters advise the board and its employees, and generally attend to all matters of a legal nature for the board and district. Where no attorney is employed, such legal services shall be performed by the county attorney.

History. 2380-46.

NOTES TO DECISIONS

1.Construction.

This section pertains to a corporation discharging governmental functions rather than to a private corporation organized for private profit, though discharging some public service. Hays' Ex'x v. Burns, 216 Ky. 827 , 288 S.W. 764, 1926 Ky. LEXIS 1023 ( Ky. 1926 ).

2.Contract.

This section requires the contract of employment of an attorney to be in writing, and in its absence there cannot be a recovery on a quantum meruit. Hays' Ex'x v. Burns, 216 Ky. 827 , 288 S.W. 764, 1926 Ky. LEXIS 1023 ( Ky. 1926 ).

267.420. Fees — Costs — Expenses — Compensation of employees and viewers.

  1. The fees of officers for services rendered under this chapter shall be the same as fees allowed by law for similar services in other cases. Such fees shall be taxed as part of the costs. The county judge/executive shall also include as costs reasonable fees to the attorneys for the petitioners in the proceeding to establish the improvement. All costs shall be paid on the order of the county judge/executive out of the drainage fund. The compensation allowed for services of the engineers, viewers and for all other labor, unless paid out of funds deposited by the petitioners, shall be paid on the order of the county judge/executive out of the drainage fund. If any part of such expense has been paid by the petitioners, or any deposit for that purpose has been made by them, it shall be refunded to them, without interest, out of the drainage fund. If the improvement is not established, all such costs and expenses shall be paid by the petitioners, and they shall be liable for the same on their bond.
  2. If any person, including any engineer or viewer, who has performed labor in connection with the improvement up to the time of final reference to the board, desires payment of the amount due up to that time, he may so inform the county judge/executive, which shall thereupon notify the petitioners or their attorneys of record of such fact in writing, stating the amount required, and call upon the petitioners to deposit with the county treasurer an amount sufficient to pay the same. The petitioners shall then deposit that amount within thirty (30) days from the date of receiving the notice. If they fail to pay it within that time, the proceeding may be dismissed at the cost of the petitioners. The treasurer shall pay out the money so deposited with him upon order or warrant of the board, if then appointed, and if not, on order of the county judge/executive.
  3. The compensation of the engineer on the board of viewers shall be fixed by the county judge/executive at or before the time of his appointment, by order entered of record. The other viewers shall receive four dollars ($4) per day for the time actually engaged in performing their duties. Rodmen, chain carriers and other laborers employed in the work shall receive not exceeding two dollars ($2) per day for their services. Any fees or compensation not provided for in this chapter shall be fixed by the county judge/executive unless the person providing the services is employed by the board, in which case the board shall fix his fees or compensation. The treasurer shall only pay out money on order of the county judge/executive, or on warrants drawn by the board, signed by its president and countersigned by its secretary.

History. 2380-36: amend. Acts 1978, ch. 384, § 411, effective June 17, 1978.

NOTES TO DECISIONS

1.Sheriff.

The services of a sheriff should be compensated in the same manner and to the same extent in the collection of drainage assessments as in the collection of state and county taxes. Board of Drainage Comm'rs v. Alliston, 198 Ky. 310 , 248 S.W. 850, 1923 Ky. LEXIS 434 ( Ky. 1923 ).

Research References and Practice Aids

Cross-References.

Fees and compensation of certain public officers, KRS ch. 64.

267.430. Expenses apportioned among districts.

The board shall keep a correct account of the time spent by it, and by each employee, and of each item of expense incurred in connection with any district, and shall charge such time or expense to the district for which it was done. Where the time or expense is applied to more than one district at the same time, it shall be apportioned between them. The compensation of any employee who is paid on a salary basis shall be apportioned by the board in such manner as seems equitable to it, and paid out of the funds to the credit of the several districts under the charge of the board.

History. 2380-38.

267.440. County treasurer’s duties as treasurer of district — Compensation.

The treasurer of the county in which the district is established shall be treasurer of the district, and the treasurers of the counties other than that in which the proceeding is pending shall pay over to him any funds collected and paid over to them for the benefit of the district, and shall take his receipt therefor in duplicate, the original of which the treasurer paying the money shall keep for his own protection. The duplicate shall be filed in the office of the county clerk of the county of which the person receiving the money is treasurer. The treasurer of any district shall pay the money in his hands upon warrants signed by the president and attested by the secretary of the board, when presented for payment. In all cases where a county treasurer becomes treasurer of a district, he shall be liable upon his general bond as county treasurer to the extent of any funds of such district entrusted to him, but he shall give a supplementary bond in such additional sum as the board may require. As compensation for his services the treasurer shall receive an amount fixed by the board, but not to exceed one thousand dollars ($1,000) in any fiscal year.

History. 2380-48.

NOTES TO DECISIONS

1.Duties.

The county treasurer, as ex officio treasurer of drainage district, is a guarantor of the forthcoming of drainage district funds upon proper demand. Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

2.Liability.

A county treasurer and his surety are liable for funds of drainage district organized under this chapter, where lost in closing of bank, although fiscal court and drainage commissioner (now board) had entered orders designating that bank as depository for funds. Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

3.Fiscal Court.

The fiscal court has no statutory authority, control or management whatever over drainage district funds. Taylor v. Fidelity & Casualty Co., 246 Ky. 598 , 55 S.W.2d 410, 1932 Ky. LEXIS 811 ( Ky. 1932 ).

267.450. Landowner’s right to use improvement as an outlet.

The owner of any land that has been assessed for the cost of any improvement may use the improvement as an outlet for lateral drains from his land. If the land is separated from the improvement by the land of another, and the owners are unable to agree as to the terms on which the one may enter the land of the other and construct the drain or ditch, he may file his ancillary petition in the pending proceeding, and have the same condemned in the same manner as provided in the Eminent Domain Act of Kentucky. When the ditch is constructed it shall become a part of the drainage system and be under the control of, and kept in repair by, the board.

History. 2380-30: amend. Acts 1976, ch. 140, § 101.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Lateral Connections.

Where a ditch was privately constructed and no lands were assessed for its construction, adjacent landowners were without statutory right to connect lateral ditches with it, or to drain waters into it except such as naturally flowed into it from their lands. Louisville & N. R. Co. v. Stephens, 188 Ky. 1 , 220 S.W. 746, 1920 Ky. LEXIS 220 ( Ky. 1 920 ).

2.Injuries to Others.

Landowners may not drain into a public ditch, to the injury of others, waters which do not naturally fall or flow upon their lands. Louisville & N. R. Co. v. Stephens, 188 Ky. 1 , 220 S.W. 746, 1920 Ky. LEXIS 220 ( Ky. 1 920 ).

3.Further Assessments.

This section does not forbid the further assessment of particular lands to meet their particular needs. Horn v. Adams, 184 Ky. 424 , 212 S.W. 108, 1919 Ky. LEXIS 76 ( Ky. 1919 ).

4.District Within a District.

A drainage district may be organized within the limits of an established district to meet the peculiar needs of a portion of the district. Horn v. Adams, 184 Ky. 424 , 212 S.W. 108, 1919 Ky. LEXIS 76 ( Ky. 1919 ).

267.460. Natural drain may become public ditch.

Whenever any public ditch or drain established and constructed under this chapter or any pre-existing law empties into a natural drain, creek or nonnavigable watercourse, such natural drain, creek or watercourse from the mouth of the public ditch or drain to the mouth of the natural drain, creek or watercourse shall be a public ditch, and subject in the same manner as other public ditches to the supervision and control of the board. If such natural drain, creek or watercourse below the mouth of the public ditch extends into any other county, the supervision and control of the board of the county in which the public ditch is located shall not extend into the other county beyond the mouth of the public ditch in that county.

History. 2380-40.

267.470. Obstructions — Landowner liable for damage caused by him.

  1. If any obstruction exists in any natural drain, creek or nonnavigable stream that constitutes an outlet for any public ditch, as provided in KRS 267.460 , and the board considers the removal of such obstruction necessary for the successful operation of the public ditch or drain, the board may have such obstruction removed, paying the cost thereof out of funds collected from any district, ditch or drain for which it is an outlet. If it is an outlet for more than one (1), the expense shall be prorated between them in such manner as the board considers equitable.
  2. If any repairs to any improvement or to any natural drain, creek or nonnavigable stream under the control of the board become necessary because of the act or negligence of the owner of any land through which it passes, or his servants or agents, or if the repairs are made necessary by any stock of the landowner, his servants or agents, the repairs necessary to restore it to its previous condition shall be made by such owner at his own expense. The superintendent of drainage shall notify the owner of any such obstruction. If the owner fails to remove it within thirty (30) days thereafter, the superintendent shall have it removed, paying the cost in the same manner as provided in subsection (1) of this section. Any amount so paid, with interest at the rate of six percent (6%) per annum, shall be charged to the landowner in fault, and may be recovered by the board in any court of competent jurisdiction, and shall constitute a lien upon the land that may be enforced as other liens. Any amount so recovered shall be returned to the fund from which it was paid.

History. 2380-41, 2380-43.

NOTES TO DECISIONS

1.Application.

This section applies to any or all persons whose acts or negligence cause injury to drainage ditch even though the ditch does not run along or through his property. Taylor Coal Co. v. Board of Drainage Comm'rs, 189 Ky. 793 , 225 S.W. 368, 1919 Ky. LEXIS 583 ( Ky. 1919 ).

Research References and Practice Aids

ALR

Liability of landowner for damages caused by overflow, seepage, or the like resulting from defect in artificial underground drain, conduit, or pipe. 44 A.L.R.2d 960.

Municipality’s liability for damage from obstruction or clogging of drain or sewer due to unusual or extraordinary rainfall. 59 A.L.R.2d 324.

Modern status of rules governing interference with drainage of surface waters. 93 A.L.R.3d 1193.

267.480. Damage or obstruction of improvement.

No person shall damage or obstruct any improvement or waterway under the control of the board. No person shall place any floodgate, bridge or fence across the same, unless the right so to do is first obtained from the board by order entered upon its record specifying the kind of floodgate, bridge or fence, and the same shall be erected only in accordance with that order. The superintendent of drainage shall see that this section and KRS 267.470 are enforced.

History. 2380-43.

NOTES TO DECISIONS

1.Trestle Piling.

In absence of permission to keep piles in ditch, railroad was required to remove trestle piling which obstructed flow of water in drainage ditch. Louisville & N. R. Co. v. Ohio County Drainage Comm'r, 213 Ky. 630 , 281 S.W. 494, 1925 Ky. LEXIS 1146 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

Director of sanitary district may clean out streams, KRS 220.280 .

ALR

Modern status of rules governing interference with drainage of surface waters. 93 A.L.R.3d 1193.

267.490. Drainage commissioner and board of supervisors in counties having seventy-five or more districts or operating under KRS 267.495.

  1. In all counties having seventy-five (75) or more drainage districts or in all counties availing themselves of the provisions of this section as provided in KRS 267.495 , a drainage commissioner shall be appointed as provided in subsection (5) of this section who shall have and exercise all of the powers and duties vested in directors and boards of drainage commissioners elected under the provisions of KRS 267.090 and 267.100 . The person so appointed shall hold office for a term of one (1) year and until his successor shall be appointed and qualify. He shall execute bond for the faithful performance of his duties in the penal sum of five thousand dollars ($5,000) and shall be sworn to faithfully perform the duties of his position to the best of his ability. Any vacancy in said office shall be filled by the board of supervisors.
  2. The commissioner may acquire, hold, encumber, sell and convey any property necessary to the conduct of his affairs as commissioner, may sue and be sued, contract and be contracted with, and shall possess any other powers and rights necessary for carrying on his work under the provisions of this chapter. No sale or conveyance of real property shall be made by the commissioner without the written consent of the board of supervisors duly entered in the minutes of the board.
  3. The commissioner shall be paid as full compensation for his services an amount fixed by the board of supervisors at the time of his appointment as reasonable, provided the amount is within available funds and not inconsistent with legal limitations on salaries. In addition, the commissioner shall be reimbursed for all traveling expenses incurred in the performance of his duties which, with the salary, shall be paid out of the drainage funds.
  4. With the approval of the board of supervisors, the commissioner may appoint a secretary-treasurer and fix his compensation. The secretary-treasurer shall collect and receive all moneys due to the drainage commissioner by reason of assessments and otherwise, and shall disburse the same as directed by the drainage commissioner. The secretary-treasurer shall execute bond to the Commonwealth of Kentucky for the use and benefit of the drainage districts in the county, in a penal sum to be fixed by the county judge/executive, and shall make an annual report to the board of supervisors of all collections and disbursements. The commissioner shall submit an audit of the drainage funds biennially to the board of supervisors.
  5. A board of five (5) supervisors shall be established as provided in this subsection. The county judge/executive shall call a general meeting during the month of May wherein owners of lands included in established drainage districts shall be eligible voters. In a general way, the judge shall indicate, at such meeting, five (5) divisions of the total drainage district areas that will be somewhat equal in terms of area of land. Landholders in each division so defined by the county judge/executive shall elect by vote one (1) of their number. The judge may hold elections for all such divisions on a given day or designate two (2) or more days for such elections. The term of office will be four (4) years, except that after the first election the five (5) supervisors shall cast lots by which two (2) shall be selected for two (2) year terms and three (3) for four (4) year terms. Thereafter similar elections shall be held biennially and for four (4) year terms. The supervisors within two (2) weeks following their election shall elect from their number a chairman and vice chairman. A secretary-treasurer shall be elected who may or may not be of their number. At this meeting the supervisors shall fix the number, time and place of regular meetings. Special meetings of supervisors may be on call of the chairman. The board of supervisors shall have the authority to fix salaries as provided above, to determine qualification standards for a drainage commissioner, secure and appoint such commissioner, to counsel and advise with the commissioner for the purpose of effecting the greatest good to the greatest number of land owners within the district, and shall receive and record reports of progress from the commissioner. Any vacancies in the board of supervisors due to death, resignation, or incapacity to serve shall be filled by appointment made by the county judge/executive.
  6. The board of supervisors shall have the power and authority to equalize assessments of all lands of like classification for, and only for, the purpose of providing funds to purchase machinery and equipment necessary in carrying out the work of the commissioner.

History. 2380c-1, 2380c-2: amend. Acts 1942, ch. 33, §§ 1, 2; 1950, ch. 160, § 1; 1956, ch. 235, § 5.

NOTES TO DECISIONS

Cited:

Holt v. Clements, 265 Ky. 546 , 97 S.W.2d 397, 1936 Ky. LEXIS 531 ( Ky. 1936 ).

Research References and Practice Aids

Cross-References.

Conduct of regular elections, KRS ch. 118.

Salary limitations, Ky. Const., § 246.

267.495. Board may elect for county to be subject to provisions of KRS 267.390(3)(b) and 267.490.

The board of drainage commissioners of any county, regardless of the number of drainage districts contained therein, may by resolution of the said board certified to the county judge/executive, elect for such county to be subject to the provisions of KRS 267.390(3)(b) and 267.490 .

History. Enact. Acts 1956, ch. 235, § 1, effective May 18, 1956.

267.500. Establishment of separate districts. [Repealed.]

Compiler’s Notes.

This section (2380-19) was repealed by Acts 1984, ch. 64, § 19, effective July 13, 1984.

267.510. Board for separate district — Election — Term — Vacancies.

  1. As soon as practicable after the judgment establishing a separate drainage district becomes final, the county judge/executive shall, with the advice and assistance of the engineer, enter an order dividing the district into three (3) precincts, as near equal in area of lands reported as benefited as is practicable, and calling a meeting of the landowners affected, to be had at some public place in the county in which the proceeding is pending, at a day and hour fixed in the order. The date for the meeting shall be not less than twenty (20) days from the entry of the order calling it. The county clerk shall give notice of the meeting by publication pursuant to KRS Chapter 424, and by posting not less than five (5) posters in different public places in the district at least fifteen (15) days before the date set. The landowners, when assembled, shall organize by the election of a chairman and secretary of the meeting, who shall conduct the election. At this election each acre of land, as near as may be arrived at by estimate or from the evidence heard before the county judge/executive on the cross-petition, shall represent one (1) share, and each owner shall be entitled to one (1) vote for each share estimated to be owned by him in the district. The name of at least one (1) person shall be put in nomination for the office of district commissioner from each of the three (3) precincts. The one (1) person from each of the three (3) precincts receiving the highest number of votes shall be declared elected as district commissioner. The district commissioner shall immediately by lot determine the terms of their office, which shall be, respectively, one (1), two (2) and three (3) years, and shall serve until their successors are elected and qualified.
  2. Each year after the election of the first district board, at such time and place in the district as the district board designates, and after notice, as above provided, the landowners in the district shall meet and elect one (1) district commissioner, who shall be an owner of land in the same precinct as that in which the district commissioner whose term is about to expire owns land, and who shall hold office for three (3) years and until his successor is elected and qualified. In case of a vacancy in any office of district commissioner, the remaining district commissioners may fill the vacancy, with some person having the precinct qualification, until the next annual election, when a successor shall be elected for the unexpired term. A district commissioner whose term is expiring shall be eligible for reelection.

History. 2380-20: amend. Acts 1966, ch. 239, § 188; 1978, ch. 384, § 412, effective June 17, 1978.

267.520. Powers and duties of district board.

The persons elected on the district board shall qualify and organize in the same manner as the county board, and shall thereupon be a body corporate with like powers, duties and responsibilities, within their respective districts, as is conferred upon the county board, and with full jurisdiction and control over the work provided for and established under the proceeding in which their election was provided for, or connected therewith. The district board shall continue in existence only so long as necessary to complete the work in the proceeding in which it was elected, and to pay off all bonds that have been issued. When the work is completed and paid for, and the bonds issued by the district have been fully paid off and satisfied, the improvement of the district, established and constructed by the district board, shall be turned over to the county board, and the district board shall then cease to exist, the district to continue by the same name or number under the jurisdiction and control of the county board. Until all bonds issued by the district board are paid off and the work turned over to the county board, the district board shall have the same authority as the county board to levy maintenance assessments to keep the improvements in repair, and to do anything in connection with the district that the county board could do.

History. 2380-21.

NOTES TO DECISIONS

1.Corporate Body.

A district board of drainage commissioners is a body corporate, with like powers within its district as the county board of drainage commissioners. Board of Drainage Comm'rs v. City Nat'l Bank, 231 Ky. 670 , 22 S.W.2d 94, 1929 Ky. LEXIS 341 ( Ky. 1929 ).

2.Borrowed Money.

A district board has power to borrow money to carry on its work in anticipation of revenue until taxes come in, and warrant to bank for money so borrowed is valid. Board of Drainage Comm'rs v. City Nat'l Bank, 231 Ky. 670 , 22 S.W.2d 94, 1929 Ky. LEXIS 341 ( Ky. 1929 ).

267.530. Amendment of order establishing district.

The order of the court by which any district is organized under this chapter may be amended at any time by adding, omitting or correcting the name of any landowner, and by adding, omitting or correcting the description of any land within or alleged to be within the district, or by amending the decree of incorporation in any manner necessary to better fulfill the object of the district. When any such amendment is desired, the board shall present a supplemental petition to the court, setting forth the amendment desired, with the name of the owner and a description of the land affected by the proposed amendment. If the owner of the land is not a party to the original proceeding, he shall be brought before the court in the same manner and with the same rights as an original party to the proceeding.

History. 2380-22.

NOTES TO DECISIONS

Cited:

Board of Drainage Comm’rs v. Stephens, 213 Ky. 30 , 280 S.W. 456, 1926 Ky. LEXIS 442 ( Ky. 1926 ).

267.540. Enlargement of district.

Any drainage district organized under the provisions of this chapter may be enlarged and the boundaries extended so as to include other contiguous land, in the manner set forth in this section. The board may present a petition to the county judge/executive who organized the district, asking that the boundaries of the district be extended and such outlying land be included in the district, particularly describing the land and giving the name of the owner. When such petition is filed, the owner of any land to be included in the district shall be brought before the county judge/executive in the same manner as an original party to the proceeding, with the same right to protest against the proposed action or file exceptions thereto. If no objection is made to the petition, the county judge/executive shall order the land included and the boundaries enlarged or extended as prayed. If any objection is made, the county judge/executive shall hear the objection and shall order all or any part of the land included as appears just, and the boundaries shall be ordered changed accordingly. The land so included shall be subject to all dues, assessments and liabilities and entitled to all the benefits and privileges of the district the same as the land originally incorporated. The owner of any land contiguous to any such district may by petition to the county judge/executive and with the consent of the board have his land annexed to the district on such terms as the county judge/executive may deem just, and thereafter his land shall be part of the district the same as the other land in the district.

History. 2380-23: amend. Acts 1978, ch. 384, § 413, effective June 17, 1978.

NOTES TO DECISIONS

1.Petition.

A petition, if considered in relation to this section, was defective, as it did not particularly describe the outlying lands sought to be included in or made a part of the district. Humphries v. Johnson, 219 Ky. 810 , 294 S.W. 474, 1927 Ky. LEXIS 437 ( Ky. 1927 ).

2.Maintenance.

Liability of land for maintenance assessments is concluded by judgments creating and extending district. Holt v. Madison Coal Corp., 250 Ky. 76 , 61 S.W.2d 1064, 1933 Ky. LEXIS 640 ( Ky. 1933 ).

267.550. Fiscal court to control improvements made by general taxation — Use.

Nothing in this chapter shall deprive any fiscal court of its jurisdiction and control over any levee, ditch or drain established or constructed by authority of the fiscal court, payment for which was or is made by general taxation or out of the public revenue of the county. Any such drain may be utilized as an outlet for any improvement established under this chapter. The fiscal court may delegate to the board of drainage commissioners control over any levee, ditch or drain so established by it, upon such terms and conditions as may be agreed upon between them. The agreement shall be written, approved by the fiscal court and the board of drainage commissioners, and recorded upon the minutes of the proceedings of both bodies.

History. 2380-24.

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the constitution. OAG 63-869 .

267.560. Appropriations to aid district.

The fiscal court of any county may, when in its judgment the public interests and welfare justify it, make appropriations to aid any drainage district of the county in making or maintaining any improvement.

History. 2380-24.

267.570. Discontinuance of improvements.

At any time a majority in number and amount of those assessed for the maintenance of any improvement may petition the county judge/executive for a discontinuance of the improvement. The petition shall give the names of all persons interested in the maintenance of the improvement and owning land in the district. The county judge/executive shall set a hearing date not less than fifteen (15) days after the filing of the petition, and shall issue notices and cause them to be served upon all parties interested, notifying them of the date that the county judge/executive will consider the petition. If no valid reason is shown against the discontinuance of the improvement, the county judge/executive shall enter an order discontinuing it, after which it shall cease to be a public improvement. An appeal may be had from the order to the Circuit Court, as provided in the establishment of improvements.

History. 2380-49a: amend. Acts 1978, ch. 384, § 414, effective June 17, 1978.

NOTES TO DECISIONS

1.Constitutionality.

This section was not enacted contrary to the provisions of Ky. Const., § 51. Muffett v. Black, 263 Ky. 199 , 92 S.W.2d 74, 1936 Ky. LEXIS 160 ( Ky. 1936 ).

2.Application.

This section applies exclusively to this chapter. Muffett v. Black, 263 Ky. 199 , 92 S.W.2d 74, 1936 Ky. LEXIS 160 ( Ky. 1936 ).

3.Discontinuance of District.

This section does not necessarily authorize the discontinuance of a district in toto, but does authorize the discontinuance of a ditch as a public ditch. Hatchell v. Board of Drainage Comm'rs, 191 Ky. 246 , 229 S.W. 1036, 1921 Ky. LEXIS 297 ( Ky. 1921 ).

When the legislature has delegated authority to discontinue or dissolve a drainage district, the delegated authority must be exercised substantially as provided, both as to time and manner. Hatchell v. Board of Drainage Comm'rs, 191 Ky. 246 , 229 S.W. 1036, 1921 Ky. LEXIS 297 ( Ky. 1921 ).

It is competent for the legislature to prescribe for the discontinuance, dissolution or abandonment of a drainage district, provided private rights are not interfered with or impaired. Muffett v. Black, 263 Ky. 199 , 92 S.W.2d 74, 1936 Ky. LEXIS 160 ( Ky. 1936 ).

4.— Limitations.

This section cannot be invoked to discontinue a drainage district, nor any ditch in a drainage district, previous to completion of construction of improvements contemplated in the establishment of the district. Hatchell v. Board of Drainage Comm'rs, 191 Ky. 246 , 229 S.W. 1036, 1921 Ky. LEXIS 297 ( Ky. 1921 ).

5.Withdrawal of Land.

This section does not provide for the withdrawal of land from a drainage district, but for the discontinuance of a public ditch. Holt v. Madison Coal Corp., 250 Ky. 76 , 61 S.W.2d 1064, 1933 Ky. LEXIS 640 ( Ky. 1933 ).

6.Judgment.

Judgment in proceeding under this section should incorporate a provision whereby the continuance of the district should be expressly preserved, and the powers and authority of the drainage commissioners preserved, until such a time as may be necessary to collect funds and take steps for liquidation of outstanding indebtedness, and the present effect of the judgment should extend no farther than dispensing with assessments for future maintenance purposes. Muffett v. Black, 263 Ky. 199 , 92 S.W.2d 74, 1936 Ky. LEXIS 160 ( Ky. 1936 ).

Research References and Practice Aids

Cross-References.

Withdrawal of land from drainage district, KRS 269.260 .

267.990. Penalties.

  1. Any railroad company that fails to remove obstructions and allow construction on its right-of-way as required by KRS 267.270 shall be subject to a penalty of fifty dollars ($50) per day for each day of delay, to be collected by the board for the benefit of the district in any court having jurisdiction.
  2. Any landowner who fails to remove any obstruction or make any repairs as required by subsection (2) of KRS 267.470 , within thirty (30) days after being notified by the superintendent of drainage, shall be fined not less than ten ($10) nor more than one hundred dollars ($100).
  3. Any person who violates any of the provisions of KRS 267.480 shall be fined not less than ten ($10) nor more than one hundred dollars ($100).

History. 2380-13, 2380-43.

CHAPTER 268 Drainage and Reclamation Act of 1918

268.010. Definitions.

As used in this chapter unless the context otherwise requires:

  1. “Appraisers” means the board of appraisers appointed by the court.
  2. “Board” means the board of drainage commissioners of the district.
  3. “District” or “drainage district” means any drainage, levee or reclamation district established under this chapter or under the control of the board.
  4. “Drain” includes any ditch, canal, sewer, channel, watercourse, conduit, stream, creek, river, pond, lake, bayou, sluice, or excavation used for the drainage or reclamation of wet or swampy land.
  5. “Improvement” means any drain or other work provided for in KRS 268.510 , constructed or used for the purposes set out in this chapter.
  6. “Owner” means any person owning a freehold estate in any property in the district or affected by it according to the report of the board of viewers, and shall not include trustees or mortgagees.
  7. “Property” includes land, railroads, sewers, streets and public highways.
  8. “Sheriff” means any collecting officer.
  9. “Viewers” means the board of viewers appointed by the court.

History. 2380b-1, 2380b-3, 2380b-5, 2380b-6, 2380b-12, 2380b-18, 2380b-20, 2380b-28a, 2380b-32, 2380b-36, 2380b-40, 2380b-41, 2380b-43, 2380b-50, 2380b-57, 2380b-58, 2380b-61.

NOTES TO DECISIONS

1.Constitutionality.

This chapter does not infringe either the state or national Constitution. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ).

This chapter, does not violate the Constitution, statutes, or the U.S. Constitution, in providing for drainage districts not coextensive with county boundaries. Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

2.Construction.

This chapter did not repeal the somewhat similar 1912 Act (KRS ch. 267), but rather provided a separate and alternative method for the reclamation of wet lands by drainage. Board of Drainage Comm'rs v. Lang, 187 Ky. 123 , 218 S.W. 736, 1920 Ky. LEXIS 89 ( Ky. 1920 ); Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ); Board of Drainage Comm'rs v. McGill, 251 Ky. 400 , 65 S.W.2d 91, 1933 Ky. LEXIS 887 ( Ky. 1933 ).

3.Assessment.

The board of education cannot be required to pay an assessment to help build the flood wall because payment would be in violation of Ky. Const., §§ 180 and 184. Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8 , 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ).

Cited:

Ferguson v. Board of Drainage Comm’rs, 299 Ky. 538 , 186 S.W.2d 16, 1945 Ky. LEXIS 460 ( Ky. 1945 ); Hardwick v. Poole, 313 Ky. 706 , 233 S.W.2d 419, 1950 Ky. LEXIS 967 ( Ky. 1950 ).

Opinions of Attorney General.

KRS Chapters 267 to 269 do not authorize the establishment of a joint drainage commission between the city and the county. OAG 80-93 .

Research References and Practice Aids

Cross-References.

Governor’s cabinet, powers as to drainage, KRS 147.100 .

“Person,” what includes, KRS 446.010 .

Sanitation districts, KRS ch. 220.

Soil and water resources commission to assist in drainage programs, KRS 146.110 .

Soil conservation, KRS ch. 262.

Water districts, KRS ch. 74.

Kentucky Law Journal.

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

268.015. Compliance with KRS 65A.010 to 65A.090.

All boards established under this chapter shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 2013, ch. 40, § 77, effective March 21, 2013.

268.020. County may establish district.

Any county may, in accordance with the procedures of KRS 65.182 , establish, organize, and provide for the operation and maintenance of drainage, levee and reclamation districts.

History. 2380b-1, 2380b-2: amend. Acts 1960, ch. 104, § 17; 1976 (Ex. Sess.), ch. 14, § 225, effective January 2, 1978; 1984, ch. 100, § 28, effective July 13, 1984.

NOTES TO DECISIONS

1.Rights of Landowner.

Under this chapter, landowners are given opportunity to raise every question that could possibly be raised for protection of their rights, and to have every such question adjudicated in the original proceeding in Circuit Court, with right of appeal to the Court of Appeals from all final orders and judgments. Byron v. Mayfield Creek Drainage Dist., 206 Ky. 309 , 267 S.W. 191, 1924 Ky. LEXIS 347 ( Ky. 1924 ).

2.Overlap.

Drainage districts may overlap each other, and property may lie within two (2) different drainage districts. Horn v. Adams, 184 Ky. 424 , 212 S.W. 108, 1919 Ky. LEXIS 76 ( Ky. 1919 ); Board of Drainage Comm'rs v. Chicago, S. L. & N. O. R. Co., 206 Ky. 306 , 267 S.W. 205, 1924 Ky. LEXIS 353 ( Ky. 1924 ).

3.Exceptions to Viewer’s Report.

Exceptions to original report of viewers filed by one (1) landowner, raising any jurisdictional question, inure to benefit of every landowner desiring to take advantage of such issue, and any party to the proceeding may prosecute and appeal from judgment overruling such exceptions. Byron v. Mayfield Creek Drainage Dist., 206 Ky. 309 , 267 S.W. 191, 1924 Ky. LEXIS 347 ( Ky. 1924 ).

Landowners who were before county court when judgment was rendered, and did not object to judgment or file exceptions to viewers’ report may not move to set aside judgment a year after it was rendered. Sandefur v. Stevens, 197 Ky. 527 , 247 S.W. 730, 1922 Ky. LEXIS 648 ( Ky. 1922 ).

4.Collateral Attack.

In suit to collect assessments made on land of appellants, rights of drainage board to hold office and discharge their duties could not be collaterally attacked where members had been in possession of their offices and had exercised their powers and duties for many years. Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

5.Jurisdiction.

This section indicates that whenever at any stage of the proceeding it is carried from county court to circuit court, the latter shall assume jurisdiction and complete the trial of the case as though begun in that court. Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ).

6.Appeal.

Landowner who did not personally file exceptions to viewers’ report may prosecute appeal from judgment overruling exceptions filed by another. Byron v. Mayfield Creek Drainage Dist., 206 Ky. 309 , 267 S.W. 191, 1924 Ky. LEXIS 347 ( Ky. 1924 ).

7.— Failure.

Landowner who failed to appeal from judgment of county court establishing drainage district is deprived of any other remedy, and cannot later enjoin sale of drainage bonds. Byron v. Mayfield Creek Drainage Dist., 206 Ky. 309 , 267 S.W. 191, 1924 Ky. LEXIS 347 ( Ky. 1924 ).

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the constitution. OAG 63-869 .

268.030. Proceedings to establish district — County that has jurisdiction. [Repealed.]

Compiler’s Notes.

This section (2380b-3: amend. Acts 1976 (Ex. Sess.), ch. 14, § 226, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.040. Petition for improvement — Bond. [Repealed.]

Compiler’s Notes.

This section (2380b-3: amend. Acts 1976 (Ex. Sess.), ch. 14, § 227, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.050. Petition to refer to this chapter. [Repealed.]

Compiler’s Notes.

This section (2380b-3) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

268.060. Board of viewers — Appointment — Qualifications — Oath. [Repealed.]

Compiler’s Notes.

This section (2380b-4, 2380b-5: amend. Acts 1976 (Ex. Sess.), ch. 14, § 228, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.070. Examination and report of viewers. [Repealed.]

Compiler’s Notes.

This section (2380b-6: amend. Acts 1980, ch. 396, § 85; 1982, ch. 141, § 80, effective July 1, 1982) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.080. Notice of fiscal court proceeding. [Repealed.]

Compiler’s Notes.

This section (2380b-6: amend. Acts 1966, ch. 239, § 189; 1976 (Ex. Sess.), ch. 14, § 229, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.090. Clerk’s certificate of notice. [Repealed.]

Compiler’s Notes.

This section (2380b-6: amend. Acts 1976 (Ex. Sess.), ch. 14, § 230, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.100. Proceeding on unfavorable viewers’ report. [Repealed.]

Compiler’s Notes.

This section (2380b-7) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

268.110. Clerk’s certificate constitutes service on process—Jurisdiction of court. [Repealed.]

Compiler’s Notes.

This section (2380b-8) was repealed by Acts 1976, ch. 14, § 491, effective January 2, 1978.

268.120. No change of venue — Special judge shall act. [Repealed.]

Compiler’s Notes.

This section (2380b-39) was repealed by Acts 1976, ch. 14, § 491, effective January 2, 1978.

268.130. Hearings by court on exceptions to viewers’ report. [Repealed.]

Compiler’s Notes.

This section (2380b-9; amend. Acts 1976 (Ex. Sess.), ch. 14, § 231, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.140. Order establishes district — Owners bound by order — Fees of county officers — Duties of clerk. [Repealed.]

Compiler’s Notes.

This section (2380b-10 2380b-40, 2380b-49; amend. Acts 1976 (Ex. Sess.), ch. 14, § 232, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.150. Orders referring district to board and continuing proceedings. [Repealed.]

Compiler’s Notes.

This section (2380b-11; amend. Acts 1976 (Ex. Sess.), ch. 14, § 233, effective January 2, 1978) was repealed by Acts 1984, ch. 100, § 30, effective July 13, 1984.

268.160. Election of board — Qualifications — Bond — Officers — Powers.

  1. The county judge/executive shall divide the district into three (3) precincts as nearly equal in area as practicable, following owners’ property lines, and immediately upon such division he shall appoint a temporary secretary to act for the district board. The secretary for the board shall record the result of the division of the district into precincts in the drainage record.
  2. The secretary shall give twenty (20) days’ notice by posting three (3) notices in each precinct of the district and by publication pursuant to KRS Chapter 424, informing the owners of the district that they may vote for a drainage commissioner for each precinct and a secretary for the board and the district, within a stated time. The vote shall be taken by the owners filing a written designation of choice, together with the number of acres the voter owns in the district, or if benefits have been confirmed the amount of benefits assessed against the owner’s land, with the county judge/executive. Each acre owned and assessed in the district shall count one (1) vote, or if benefits have been confirmed each one hundred dollars ($100) or fraction thereof in benefits assessed against the voter’s land shall count one (1) vote for secretary and drainage commissioner. The votes of the owners, when cast and filed with the county judge/executive, shall be recorded by the secretary of the board in the drainage record immediately after the expiration of the time for casting the vote. Votes shall be filed with the county judge/executive by the first Monday in April for drainage commissioner and for secretary, for a term of one (1) year beginning on the first Monday of May following. If there is a tie vote in any contest the judge of the county where the district has been established shall cast the deciding vote.
  3. The board shall consist of three (3) members, being the persons who have received the largest number of votes in each of the three (3) precincts. The secretary shall be the party who received the largest number of votes from the district at large for that office. The board shall elect some responsible resident of the district, who is not a member of or secretary to the board, as treasurer. The treasurer shall be paid whatever salary the board deems proper, and shall execute bond as the board directs. One (1) month after the advertised election is completed, or on the first Monday in May if not an advertised election, the elected officers shall take charge of the drainage record and all records, maps, papers and property belonging to the district, except money in the hands of the treasurer.
  4. No one except an owner of land in the precinct for which he acts shall be eligible for drainage commissioner. Each commissioner shall be a freeholder and over twenty-one (21) years of age. The board shall have control of all improvements in the district, except as otherwise provided. Vacancies in the office of board member or secretary shall be filled by a special election after due advertising. Each drainage commissioner when elected shall execute bond for the faithful performance of his duties in the sum of $2,500 and shall be sworn to perform the duties of his office to the best of his ability.
  5. Immediately upon election and qualification, the board shall become a body corporate, under the name and style of the “Board of Drainage Commissioners of  . . . . .  District,” with all the powers of a corporation or as necessary to carry on its work. It shall use a corporate seal which it may change at pleasure. The board shall elect from among its members a president, and a vice president.

History. 2380b-12: amend. Acts 1942, ch. 189, §§ 1, 2; 1944, ch. 109, § 2; 1966, ch. 239, § 190.

NOTES TO DECISIONS

1.Division.

An order of the county judge (now county judge/executive) directing that the drainage district “be divided” into precincts, and appointing the sheriff as temporary secretary to make the division, was not a division of the district into precincts within the meaning of this section, and an election held under such attempted division was void as this section contemplates that viewers be appointed to make the division. Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ) (decision prior to 1942 amendment).

2.Annual Election.

The failure of this section to specifically provide for annual elections does not render the section void. The provision that the commissioners and secretary shall serve for a term of one year clearly contemplates annual elections. Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ).

The regular annual election for drainage commissioners is to be held on the first Monday in April, and those elected take office on the first Monday in May. Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ).

3.Publication of Notice.

Where published notice of election stated that election would be held on or before a named day, which day was the twentieth day following the first publication of the notice, and votes were received beginning the day after publication and during the entire 20 day period, the publication was not sufficient and the election was void. Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ).

4.Treasurer.

Where election for board members was void, elected members had no authority to name a treasurer. Gardner v. Board of Drainage Comm'rs, 292 Ky. 75 , 165 S.W.2d 989, 1942 Ky. LEXIS 36 ( Ky. 1942 ).

5.Vacancy.

It is only where the election is to fill a vacancy that the successful candidate takes charge of the drainage records one month after the election. Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ).

6.Right to Office.

In action by drainage board to collect assessments, where board members had been in possession and exercised duties of their offices for many years, landowners could not collaterally attack member’s right to hold office. Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

268.170. Office and meetings of the board — Records — Reports — Expenses.

  1. The board shall furnish its secretary with the necessary office room, furniture, fixtures, stationery, maps, plats, typewriter, and postage. The board shall meet as often as necessary for the proper discharge of duties at whatever places these duties require within the county in which any part of the district lies. The board shall keep complete records of its proceedings, which shall be at all times open to the inspection of the public.
  2. The treasurer of the board shall, by May 1 of each year, make a complete and itemized report of its accounts and doings during the previous year, showing the amount of money received and from what source and the amount paid out and for what purposes. This report shall be spread upon the records and open for public inspection, and shall be submitted to the Department for Local Government as required by KRS 65A.020 .
  3. All expenses incurred by the board shall be taken out of drainage funds and not from any general funds of the county. The commissioners shall be paid not more than three dollars ($3) per day while actually engaged in the performance of their duties as well as all traveling expenses incurred in attending any meeting of the board or in the performance of their duties, to be paid out of the funds of the district.

History. 2380b-12: amend. Acts 1942, ch. 189, §§ 1, 2; 1966, ch. 239, § 191; 2013, ch. 40, § 78, effective March 21, 2013.

268.180. Board levies preliminary tax — Purpose — Collection — Surplus to district fund.

  1. As soon as a district is referred to it by the court, the board shall levy a uniform tax of not more than fifty cents ($0.50) per acre upon each acre of land within the district, as shown by the viewers’ report, to be used to pay the expenses incurred in establishing the district, or to be incurred in organizing the district, making surveys and assessing benefits and damages and to pay other expenses necessary to be incurred before the board may provide funds to pay the total cost of improvements of the district. If the boundaries of the district are extended so as to include property not described and contained in the report of the viewers approved by the court, the same uniform tax shall be made on such other property as soon as it is included in the district.
  2. This tax shall be payable as soon as levied. If not paid by December 1 of the year in which it is levied, it shall become delinquent and be returned to the sheriff of the county in which the property is located by the board. It shall be collected by the sheriff in the same manner and bear the same penalty as general state and county taxes. This tax shall be a lien on the property against which it is levied from the time of the levy.
  3. In case the sum received from the levy exceeds the total cost of items for which it has been levied, the surplus shall be placed in the general fund of the district and used to pay the cost of construction.

History. 2380b-13.

268.190. Attorney for board — Duties — Assistants.

Within thirty (30) days after any district has been organized and referred to it, the board shall employ an attorney to advise it and to act for the district. This attorney shall conduct all actions in court where the district is interested, and advise the board and its employees or agents, and generally attend to all matters of a legal nature for the board and district. The board may, with the advice of the attorney, employ other attorneys.

History. 2380b-33.

268.200. Superintendent of drainage — Assistants — Duties — Bond — Expenses.

The board may appoint a competent person as superintendent of drainage, who shall be subject to the orders of the board. He shall look after and keep clean, open and in good condition all public drains and other improvements under the charge of the board. The superintendent shall furnish bond to be approved by and in favor of the board, for the benefit of any party in interest. If no superintendent is appointed, the work provided for in this section may be done by the chief engineer, or other employees as the board may direct. The superintendent, with the approval of the board, may employ any help necessary to the performance of his duties. All expenses incurred shall be reported by the superintendent or other employee to the board, and the report shall show the improvement upon which the expense was incurred.

History. 2380b-51.

268.210. Compensation of officers and employees — Selection of treasurer.

  1. Attorneys selected by the petitioners to prepare and file ex parte petitions for the establishment of any district shall faithfully perform the duties of attorney in such proceedings, aid in the preparation of all reports of the viewers, and do any other work necessary until judgment is rendered on the exceptions to the viewers’ preliminary report, establishing or refusing to establish the district, at which time their duties shall cease. If the district is established the court organizing it shall allow the attorney representing the petitioners a reasonable fee for the service actually rendered, to be taxed as a part of the cost of the proceeding, and paid by the board out of the funds belonging to the district when funds come into their hands.
  2. The compensation of the engineer who is a member of the board of viewers shall be fixed by the fiscal court at or before the time of his appointment, by order entered of record. The other viewers and the members of the board of appraisers shall be paid five dollars ($5) per day for the time actually engaged in performing their duties. Rodmen, chain carriers and other laborers employed in the improvement shall receive three dollars ($3) per day for their services.
  3. The secretary of the board shall receive three dollars ($3) per day for attending the meetings of the board and ten cents ($0.10) per one hundred (100) words for matter required to be written or recorded by him.
  4. The treasurer shall receive not more than one percent (1%) for receiving and disbursing funds under the control of the board. If any bank or any qualified person will execute proper bond and serve as treasurer without remuneration or will pay the district a fee for being allowed to serve as treasurer with the privilege of selecting the depository of the funds, that bank or person may be appointed treasurer within the discretion of the board. The board shall receive bids or terms from all the banks of the city where its office is located that desire to act as treasurer, and select the bank or person that will best serve the interest of the district.
  5. The board, except where otherwise provided, shall by resolution at the time of employing or appointing any person to render services, provide for reasonable compensation for the work done and necessary expenses.

History. 2380b-40: amend. Acts 1976 (Ex. Sess.), ch. 14, § 234, effective January 2, 1978.

NOTES TO DECISIONS

1.Selection of Treasurer.

Where election for board members was void, elected members had no authority to name a treasurer. Gardner v. Board of Drainage Comm'rs, 292 Ky. 75 , 165 S.W.2d 989, 1942 Ky. LEXIS 36 ( Ky. 1942 ).

268.220. Treasurer acts for all boards in county — Bond — Audit of books — Statement of accounts — Issue and form of warrant — Interest on unpaid warrants.

  1. The treasurer of the board in any county shall hold the office of treasurer of all districts organized in that county, and shall receive and receipt for all the drainage assessments collected by the sheriff. He shall give bond in the amount fixed by the board. This bond shall remain in the custody of the president of the board and be kept separate from all papers in the custody of the secretary or treasurer. The treasurer shall keep all funds deposited in some bank, to be designated by the board. All interest paid on the fund shall be credited to the district. The board shall have the books of the treasurer audited by a competent accountant appointed by it, as of December 31 in each year, and shall file a copy of the auditor’s report with the clerk of the court where the district was organized, and publish a statement within thirty (30) days showing the amount of money received, the amount paid out during that year and the amount in the treasury at the beginning and end of the year.
  2. The treasurer shall pay out funds of the district only on warrants issued by the board. Warrants shall be issued only on the order of the board at a regular meeting, of which a record shall be kept. Warrants shall be signed by the president of the board and attested by the secretary. All warrants shall be in substantially the following form:
  3. If any warrant is not paid when presented to the treasurer because of lack of funds in the treasury, that fact shall be endorsed on the back of the warrant, and it shall draw interest thereafter at the rate of six percent (6%) per annum, until there is money on hand to pay it with interest then accumulated. No interest shall be allowed on any warrant after that time.

“$ fund No. of warrant treasurer of district No. of County (or Counties), Kentucky. “Pay to dollars out of the money in fund of the district. For . By order of board of drainage commissioners of County. This day of , 19 (Seal) President of board of drainage commissioners of County Attest: Secretary.”

Click to view

History. 2380b-31, 2380b-38.

Research References and Practice Aids

Cross-References.

Bond of public officers, KRS 62.060 to 62.080 .

268.230. Record of proceedings of the board.

The board shall keep a well-bound book entitled “Record of Board of Drainage Commissioners of . . . . . County, Kentucky,” in which shall be recorded the minutes of all meetings, proceedings, certificates, bonds given by all employees, accounts and expenditures allowed and orders paid and all corporate acts in reference to the district. This record shall be open at all times to the inspection of anyone interested.

History. 2380b-34.

268.240. Board to keep account of time and expenses — Apportionment — Annual report of officers.

The board shall keep a correct account of the time spent by it, by the engineer, superintendent and all other employees, and of each item of expense incurred in connection with the district, and charge it to the district for which it was done. If the expense is upon more than one (1) district at the same time, it shall be apportioned between them. Every salary fixed by the board shall be apportioned by the board and paid out of the funds to the credit of the districts benefited. On the first Monday of December of each year all officers shall report in detail to the board.

History. 2380b-49.

268.250. Chief engineer — Powers and duties — Report — Compensation of engineers.

  1. When the board undertakes to establish or construct any improvement, it shall appoint a competent civil engineer as chief engineer, who may be an individual or a corporation, and who shall engage such assistants as the board approves. The chief engineer shall have control of the engineering work in the district. He may, with the consent of the board, consult any eminent engineer and obtain his opinion and advice concerning the plans for the district. He shall make all necessary surveys of the property within the district, and of any adjacent property that may be affected.
  2. The engineer shall make a written report to the board, with maps and profiles of the surveys, containing a plan for draining, leveeing and reclaiming the property from overflow or damage by water. These maps and profiles shall also indicate, so far as necessary, the physical characteristics of the land and the location of any cities, public roads, streets, railroads, drains and other property located on the land. The report shall also contain an accurate description of each tract of land within the district, giving the name of the owner and his post office address, and a statement showing the quantity of land. The report shall also include a property map, showing the boundary of each tract of land, the quantity of land in each tract, the name of the owner, and all streams, roads, railroads, and the location of all proposed improvements. Everything filed by the engineer shall be made in triplicate by him, one (1) marked original and the others duplicates. The original shall not be withdrawn from the custody of the secretary of the board, but the duplicates may be withdrawn for use by the viewers, the board, or for use on the work by the engineer or contractor, receipted for by the person withdrawing it and returned in due time.
  3. The compensation to engineers for making the preliminary survey and plan shall not exceed ten dollars ($10) per day and actual expenses. The compensation of any consulting engineer shall not exceed thirty dollars ($30) per day, nor shall a consulting engineer in any district be employed for more than ten (10) days. All engineering fees in the organization of a district under employment by the board shall not exceed five percent (5%) of the gross cost of the improvement made. When any fees are sought to be allowed in excess of the above schedule and entered into the total costs as the basis for making the levy of assessments, permission shall first be obtained from the fiscal court.

History. 2380b-14, 2380b-55: amend. Acts 1976 (Ex. Sess.), ch. 14, § 235, effective January 2, 1978.

NOTES TO DECISIONS

1.Authority.

The authority of the engineer ends when he reports to the board his plans and specifications. Bard v. Board of Drainage Comm'rs, 234 Ky. 263 , 27 S.W.2d 968, 1930 Ky. LEXIS 155 ( Ky. 1930 ).

2.Plans and Specifications.

The plans and specifications are in the end the work of the court, and the engineer is not responsible to any property owner for them. Bard v. Board of Drainage Comm'rs, 234 Ky. 263 , 27 S.W.2d 968, 1930 Ky. LEXIS 155 ( Ky. 1930 ).

Research References and Practice Aids

Cross-References.

Professional engineer or licensed architect must be employed for certain public works, KRS 322.360 .

268.260. Plan for reclamation — Board appoints appraisers — Duties — Oath — Election of chairman.

  1. The report of the chief engineer shall be known as the “plan for reclamation.” When it is filed, the board shall meet and receive and adopt it, with any modifications determined upon. After the plan has been adopted, the board shall refer the proceeding to a board of appraisers, to then be appointed by the board of drainage commissioners, consisting of three (3) resident freeholders of any county in which the district is located who are in no way interested in the proceedings and not of kin within the second degree of consanguinity to any person owning land in the proposed district. They shall appraise the property, assessing benefits and damages based on the doing of the work as described and set forth in the plan for reclamation approved by the board. The secretary of the board shall transmit to the appraisers a certified copy of the plan for reclamation which has been approved by the board.
  2. Each appraiser, at a meeting to be held as soon as possible thereafter, shall take and subscribe to an oath that he will faithfully and impartially discharge his duties and make a true report of the work done by him. The appraisers shall, at the same meeting, organize by electing a chairman.

History. 2380b-15: amend. Acts 1976 (Ex. Sess.), ch. 14, § 236, effective January 2, 1978.

268.270. Appraisers’ work and report on benefits and damages — Cost of improvement.

  1. Within ten (10) days after being sworn as provided by KRS 268.260 , the appraisers shall begin their duties. They may at any time call upon the attorney of the district for legal advice and information relative to their duties, and the chief engineer or one (1) of his assistants shall accompany them at all times and render his opinion in writing when called for.
  2. The appraisers shall view the premises and determine the value of all property subject to assessment, or which is to be acquired or used as set out in the plan for reclamation. They shall appraise each tract of land separately, and assess the amount of benefits and damages that will accrue to each separate piece of property as a result of execution of the plan for reclamation as adopted by the board.
  3. The appraisers, in assessing the benefits to property not traversed by the improvements as provided for in the plan for reclamation, shall not consider what benefits will be derived by such property after other improvements or plans have been constructed, but they shall assess only the benefits that will be derived from the construction of the improvements set out in the plan for reclamation, or as such improvements may afford an outlet for drainage or protection from overflow of that property. The appraisers shall give due consideration and credit to any other improvements or systems of reclamation that have already been constructed and that afford partial or complete protection to any property in the district. The property shall be assessed according to the increased physical efficiency and decreased annual average maintenance cost by reason of the protection to be derived from the proposed improvements capitalized upon a six percent (6%) basis. The appraisers shall not change or modify the plan for reclamation.
  4. The appraisers shall prepare a written report of their findings, signed by at least two (2) of them. They shall make three (3) copies of the report, to be filed with the secretary of the board. This report shall contain a statement of their findings on the following facts: A description of each parcel of property, as described in the engineer’s report containing the plan for reclamation; the name of the owner; the name of the county in which it is located; the present value of each separate tract of land per acre; the number of acres in each tract; the quantity of land in each tract to be taken or used; the value of the land to be taken or used; the consequential damage to any property that will result from making the improvement; the enhancement of value of each tract, by the acre, which will result from the improvement; the number of acres in each class of benefits as classified by them.
  5. Each tract shall be reported separately. Substantially the following form shall be followed in this particular:
  6. If the appraisers find any property outside of the district that will be damaged by the proposed improvement, or that must be taken for any improvement set out in the plan for reclamation, they shall give the name of the owner and a description of the property separate from the regular report but attached to it.
  7. They shall also, with the advice of the engineer, estimate and tabulate the cost of improvements set out in the plan for reclamation, to include cost of all property, damages, and the probable expenses of organization and administration estimated by the board.
  8. The secretary of the board or his deputy shall accompany the appraisers while engaged in their duties, and shall perform all their clerical work. He shall also, under the supervision of the attorney for the district, prepare their report. The appraisers shall report to the board the number of days each was employed and the actual expenses incurred.

“(Name of district) (drainage), (levee), (reclamation) District, located in the County of , Kentucky. “Name of owner Post office address (Description of land). Located in County. Number of acres in tract Present value of land per acre $ Quantity of land to be taken or used Value of land to be taken or used $ Consequential damages to adjacent lands Enhancement of value of land which will result from the improvement per acre $ No. of acres in tract in class A No. of acres in tract in class B No. of acres in tract in class C No. of acres in tract in class D No. of acres in tract in class E No. of acres in tract in class Remarks: ”.

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History. 2380b-16: amend. Acts 1976 (Ex. Sess.), ch. 14, § 237, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appraiser’s Report, Form 338.09.

268.280. Notice of hearing on appraisers’ report — Form.

  1. When the report of the appraisers is filed the secretary shall cause a notice to be sent to each landowner named in the report whose property is shown to be affected by the proposed improvement.
  2. The notice given by the secretary shall be substantially as follows:
  3. The clerk shall also post a copy of the above notice at the front door of the courthouse of the county where the proceeding is pending, within five (5) days after the report is filed in his office, and shall cause it to be published pursuant to KRS Chapter 424.

“In re drainage district No. of County (or of Counties), Kentucky. “Notice is hereby given to all owners of property in (drainage), (levee), (reclamation) district known as (insert name of district), the boundaries of which district are as follows: (here insert boundary description and also a separate description of any property added by the appraisers, together with the name of the owner), and to all persons whose property may be affected, that the board of appraisers has filed in the office of the secretary of the board its report in which it states and shows the benefits, damages and the assessments of benefits made upon all property in the district, the classification thereof and an appraisal of the value of the property necessary to be taken or used, or which will be affected by the making of the improvement. This proceeding is set for hearing on the day of , 19 The report is on file in my office and subject to inspection by any person. Any person desiring to file written objections thereto, must do so on or before the day set for the hearing. Upon your failure to appear or file written objections to the report by that date, it will be construed by the board that you have no reasons to offer why it should not be confirmed. “Done by me as secretary of the board on this the day of , 19 Secretary.”

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History. 2380b-17: amend. Acts 1966, ch. 239, § 192; 1976, ch. 140, § 102; 1976 (Ex. Sess.), ch. 14, § 238, effective January 2, 1978.

NOTES TO DECISIONS

1.Exceptions.

No restriction whatever is placed upon the exceptions which the landowners are authorized to file. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Notice of Hearing on Appraiser’s Report, Form 338.10.

268.290. Determination of correctness of appraisers’ report — Proceeding to abandon improvement — Action of board — Appeal.

  1. When the hearing is completed, the board shall determine the correctness of the classification and assessment of benefits to each piece of property involved. If no objections are raised to the report of the appraisers, the report shall be considered correct in all respects.
  2. If it appears to the board, after having heard all objections, that the estimated cost of the construction of the proposed improvement contemplated in the plan of reclamation is less than the benefits properly assessed against the property, the board shall then approve and confirm the report of the appraisers as to the classification and assessment of benefits as amended or modified by the board. If it appears to the board that the cost exceeds the benefit accruing to the property in the district, the board shall abandon the proposed improvement.
  3. The board shall state its findings and enter it along with an order approving or disapproving the proposed improvement, and file the same with the secretary of the board, who shall note upon the order the date of its filing.
  4. After the report of the appraisers has been filed, if the owners of seventy-five percent (75%) of the land in the district, or any part of it which is practically separated from the rest, file a petition with the board stating that they desire to abandon the proposed improvement, the board shall abandon it at the cost of the landowners.
  5. Any person may appeal to the Circuit Court within thirty (30) days from the filing of the order of the board. The trial in Circuit Court shall be de novo.

History. 2380b-18: amend. Acts 1976, ch. 140, § 103; 1976 (Ex. Sess.), ch. 14, § 239, effective January 2, 1978; 1978, ch. 384, § 574, effective June 17, 1978.

NOTES TO DECISIONS

1.Organization and Assessment.

The period of organization and of assessment of benefits and damages, is completed when judgment organizing the district is entered upon report of appraisers. Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ).

2.Nature of Judgment.

Up to the stage of the proceeding to establish a drainage district covered by this section any landowner could rely upon any objections or exceptions filed by any other landowner, but at this juncture the judgment of the court fixing the amount of benefits or damages to each tract of land becomes a several and not a joint judgment, applicable to each separate tract of land. Byron v. Mayfield Creek Drainage Dist., 206 Ky. 309 , 267 S.W. 191, 1924 Ky. LEXIS 347 ( Ky. 1924 ).

Judgment organizing a drainage district further necessarily concludes the question of liability for assessments for the future maintenance and upkeep of the district, except insofar as the landowner may from time to time except to such assessments as provided by statute. Holt v. Madison Coal Corp., 250 Ky. 76 , 61 S.W.2d 1064, 1933 Ky. LEXIS 640 ( Ky. 1933 ).

3.Report.

The report of the appraisers is prima facie evidence of all the facts and conclusions set forth therein. Mobile & O. R. Co. v. Board of Drainage Comm'rs, 193 Ky. 514 , 236 S.W. 958, 1922 Ky. LEXIS 22 ( Ky. 1922 ).

While the appraisers’ report is prima facie evidence of the facts stated therein, when exceptions are filed to the report the case is to be determined by the court on all the evidence. Board of Drainage Comm'rs v. Chicago, S. L. & N. O. R. Co., 206 Ky. 306 , 267 S.W. 205, 1924 Ky. LEXIS 353 ( Ky. 1924 ).

The court may not approve or confirm a report of the appraisers until all exceptions shall have been determined adversely to the landowners affected. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ).

4.— Exceptions.

Question as to probable cost of district being greater than benefit should be raised by exceptions to appraisers’ report when filed, and not in preliminary proceeding to establish district. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ); Wells v. Board of Drainage Comm'rs, 237 Ky. 539 , 35 S.W.2d 886, 1931 Ky. LEXIS 636 ( Ky. 1931 ).

5.Dismissal of Proceedings.

As appraisers’ report did not become final until approved by the court, until it was approved 75 percent of landowners had right to file petition to dismiss proceeding. Edrington v. Payne, 225 Ky. 86 , 7 S.W.2d 827, 1928 Ky. LEXIS 708 ( Ky. 1928 ).

6.Appeal.

The only limitation on the questions reviewable by the Court of Appeals is that they must first be presented to the Circuit Court by appropriate exceptions to the appraisers’ report. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ).

Where landowner did not appeal judgment entered in drainage district proceeding with all parties before the court, successor in title cannot obtain relief from that judgment by an independent action in circuit court of another county. Goodman v. Board of Drainage Comm'rs, 229 Ky. 189 , 16 S.W.2d 1036, 1929 Ky. LEXIS 719 ( Ky. 1929 ).

Research References and Practice Aids

Cross-References.

Condemnation of land for railroad purposes, KRS 416.010 .

268.300. Form of judgment approving report of appraisers. [Repealed.]

Compiler’s Notes.

This section (2380b-18) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

268.310. Clerk to send corrected report and copy of judgment to secretary of board — Secretary to file — Compensation of clerk. [Repealed]

Compiler’s Notes.

This section (2380b-19) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

268.320. Benefits assessed to certain property — Passage of title to district.

  1. That portion of any piece of property not taken for use of the district shall be assessed for the benefits accruing thereto.
  2. When any property is acquired by any district, and the price has been paid or secured to the owner or paid to the clerk of the court by the board, the title and all rights shall pass from the owner to the district.

History. 2380b-20: amend. Acts 1976 (Ex. Sess.), ch. 14, § 240, effective January 2, 1978.

Research References and Practice Aids

ALR

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking. 59 A.L.R.3d 488.

268.330. Board may borrow money.

When the decision of the board becomes final, the board may borrow any money necessary to carry on the business and work of the district, not exceeding seventy-five percent (75%) of the aggregate assessed benefit as shown by the corrected report of the appraisers. To secure the payment of any loan, the board may pledge the faith and credit of the district. No money shall be borrowed for a longer period of time than the actual needs of the district require, and in no case for more than five (5) years. Every loan shall be repaid as soon as there are sufficient funds in the hands of the treasurer, collected from assessments or realized from a sale of district bonds.

History. 2380b-21: amend. Acts 1976 (Ex. Sess.), ch. 14, § 241, effective January 2, 1978.

Research References and Practice Aids

Cross-References.

Interest, legal rate, KRS 360.010 , 360.020 .

268.340. Computation of minimum district assessment — District interest assessment — Maximum district assessment.

  1. Within thirty (30) days after the contract for the improvement is let for all the work provided for under the plan for reclamation, or, if the improvements are made directly by the board, as soon as the cost can be ascertained, the board shall ascertain the cost of doing all of the work, and add all expenses incurred in establishing and organizing the district, including all fees to attorneys, engineers, employees, court costs and the damages assessed against the district. To the total of these sums the board shall add ten percent (10%) of the total, to defray the future expenses of the district, including the salaries and fees for services to be thereafter rendered by the members of the board, their agents and employees, including engineers and attorneys, and any other necessary expenses which cannot be foreseen. This aggregate sum shall be called the minimum district assessment. If bonds are to be issued and sold for the district, the board shall then determine the length of time the bonds are to run, and calculate the total amount of interest that will accumulate upon the entire bond issue, the par value of which shall not exceed ninety percent (90%) of the total minimum district assessment. The total of the interest that will accumulate during the period the bonds are to run up till maturity shall be called the district interest assessment. The board shall then add together the two (2) sums, the minimum district assessment and the district interest assessment. The total shall be called amount of which two (2) sums shall constitute the maximum district assessment.
  2. The board shall then ascertain what percent the minimum district assessment is of the total assessed benefits to all property in the district, as shown by the corrected appraisers’ report. The board shall also ascertain what percent the total interest assessment is of the total assessed benefits to all such property.
  3. The board shall then apportion the minimum district assessment to each separate piece of property, so that each shall bear its ratable part of the minimum district assessment. It shall then in like manner apportion the district interest assessment to each piece of property. The board shall then levy a drainage assessment upon the district for the amount of the minimum district assessment, also for the amount of the district interest assessment, and then prepare a drainage assessment record for the district, and as many copies as there are counties in which any part of the district is situated, plus two (2) additional copies, one (1) of which shall be for the board, and the other to remain permanently in the office of the county clerk in the county in which the district is organized.

History. 2380b-22: amend. Acts 1976 (Ex. Sess.), ch. 14, § 242, effective January 2, 1978.

NOTES TO DECISIONS

1.Nature of Assessment.

Although beneficial assessments levied against specific property are imposed by an exercise of the sovereign power and are in a sense a tax, they nevertheless are not taxes within the constitutional and statutory limitations upon the power to tax. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

2.Counterclaim.

A county may counterclaim for bridges constructed, against drainage assessments levied against county. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

3.Payment in Bonds.

Argument that, if landowner were allowed to pay part of minimum district assessment in bonds, the drainage commission would have no funds with which to operate, is unsound in view of provision in this section that administrative expense shall be provided for in minimum district assessment. Rollins v. Board of Drainage Comm'rs, 281 Ky. 771 , 136 S.W.2d 1094, 1939 Ky. LEXIS 39 ( Ky. 1939 ).

Opinions of Attorney General.

While KRS chapters 268 and 104 both deal with flood control, they provide entirely separate means of establishing and financing flood control districts; under chapter 268, the district is created by order of the fiscal court and is funded by beneficial assessments which are not a tax and are collected under the mechanism established in KRS 268.420 ; under chapter 104, the district is established by the secretary for natural resources and environmental protection and the tax authorized is a property tax that is added to the regular property tax bills. OAG 92-23 .

268.350. Drainage assessment record form — District assessment table.

The drainage assessment record provided for in KRS 268.340 shall be in substantially the following form:

“Drainage Assessment Record of (drainage), (levee), (reclamation) district, located in the County of , Kentucky. The board of drainage commissioners of County has ascertained from an inspection of the report of the appraisers that the total aggregate of benefits to all of the property in the district is $, and that the cost of making the improvements provided for in the plan for reclamation and the cost of the proceedings in establishing and organizing the district up to this time are $, to which sum we have, as provided by law, added ten percent for the purpose of defraying future expenses and to create an emergency fund, making the total minimum district assessment of $, which we now levy and assess against the district. It is ordered that a district bond issue be authorized of ninety percent of the minimum district assessment of $ , to consist of fifteen series of equal amount, bearing six percent per annum interest payable semiannually. One-fifteenth of the total issue of bonds shall mature and be payable annually. The first series shall become payable five (5) years from the date of issue, and the last series twenty years from the date of issue. “It is ascertained that the total amount of interest that will accumulate on the bonds from the date of issue until maturity will be $, and this board therefore orders that there be levied upon all property in the district an interest assessment amounting to $ “We do hereby apportion both the minimum district assessment and the district interest assessment to each piece of property located in the district, ratably according to the assessment of benefits as appears in the board of appraisers’ assessment of benefits as amended, modified and corrected and shown in the following table: “Table of District Assessments Name of (owner), (railroad), (public highway) Post office address Number of (acres of land), (miles of road) assessed as benefited In what county located Total of benefits assessed amount Total of minimum district assessment amount Total of district interest assessment amount Total assessment maximum “The board of drainage commissioners hereby submits the above as a true and correct assessment roll upon the lands, railroads, public highways and other property subject to assessment in the (drainage), (levee), (reclamation) district, and prays the county judge/executive to confirm it. Respectfully submitted. Board of drainage commissioners of County. By , President. Attest: , Secretary. (Space for correction by clerk upon order of court) The above is a correct assessment. Attest: Clerk.”

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History. 2308b-22: amend. Acts 1976 (Ex. Sess.), ch. 14, § 243, effective January 2, 1978; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Drainage, Reclamation, and Sewer Districts, § 338.00.

268.360. Copies of assessment record filed with clerk — Clerk’s notice — Determination of objection — Final order.

  1. As soon as the drainage assessment record is completed, the board shall deliver the copies to and file them with the county clerk in which county the district is organized. The clerk shall receive them, and, beginning within five (5) days, publish notice of such filing pursuant to KRS Chapter 424. The notice shall be in substantially the following form:
  2. If objections are filed, they shall be determined by the county judge/executive in a summary way. If errors are found, they shall be by proper orders corrected. The order of the county judge/executive shall direct the clerk to show such corrections on all the copies of the assessment record in red ink. When all errors in the assessment are ordered corrected by the county judge/executive, he shall approve the assessment record.
  3. The final order of approval and confirmation by the county judge/executive shall be final and conclusive upon all property within the district. The assessment record, when corrected by the clerk under orders of the county judge/executive, shall be endorsed by the county judge/executive as the assessment record of the district, and thereafter no question may be raised concerning the correctness of any assessment shown in the record.
  4. One (1) of the several copies of the assessment record, properly corrected and endorsed by the county judge/executive, shall remain in the office of the county clerk. The remaining copies shall be certified and delivered by the clerk to the secretary of the board of the county in which the district was organized.

“State of Kentucky. “County of “In the matter of the (drainage), (levee), (reclamation) district. Notice is hereby given to all persons interested that the board of drainage commissioners of County did on the day of , 19, file in my office copies of the drainage assessment record for the above district in which they show the aggregate costs of the improvements to be made according to the plan for reclamation, also the aggregate of all benefits to property and the minimum district assessment and the apportionment thereof to each piece of property, together with the total of such assessments which are to be paid for each separate piece of property. “All persons interested are hereby notified that they may inspect this record at any time, and are given until to file written objections to these final assessments. “Unless you file objections thereto by that date, it will be taken for granted that the assessments are correct, and correctly apportioned to each separate piece of property, and they will be confirmed, and become the fixed assessments upon each piece of property. “Given under my hand as county clerk on this the day of , 19 Clerk.”

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History. 2380b-23: amend. Acts 1966, ch. 239, § 193; 1976 (Ex. Sess.), ch. 14, § 244, effective January 2, 1978; 1978, ch. 384, §§ 110, 415, effective June 17, 1978.

Legislative Research Commission Note.

This section was amended by two sections of Acts 1978, ch. 384, which do not appear to be in conflict and which have been compiled together.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Drainage, Reclamation, and Sewer Districts, § 338.00.

268.370. Board may issue bonds — Terms — Use of proceeds — Duties of treasurer — Bond — Duties of county clerk — Warrants for payment.

  1. The board of drainage commissioners may, if in their judgment it seems best, issue bonds on behalf of any district under their control, not to exceed ninety percent (90%) of the total amount of the minimum district assessments levied upon the property of the district approved by the county judge/executive. The bonds shall be in denominations of not less than one hundred dollars ($100), bearing interest payable at least annually from the date of issue, to mature at annual or more frequent intervals within thirty (30) years, commencing after a period of years not later than five (5) years, to be determined by the board. Both principal and interest shall be payable at some convenient bank or trust company’s office, to be named in the bonds. The bonds shall be signed by the president of the board, attested with the seal of the board, and the signature of the secretary and countersigned by the county clerk of the county in which the district is organized. All bonds shall be executed and delivered to the treasurer of the district, who shall sell them in quantities and at dates as the board considers necessary. The funds derived from the sale of bonds shall be used only to pay the cost of improvements and the expenses, fees, and salaries authorized by law. The secretary of the board shall certify to the county clerk in which the district was organized a copy of the resolution authorizing and directing the issuance of the bonds, which shall contain a list of the bonds, their dates of maturity, and amounts. The clerk shall record this resolution in the lis pendens record in his office. The bonds shall show on their face the purpose for which they are issued.
  2. The bonds shall be payable out of money derived from the assessments upon property, and a sufficient amount of the drainage assessment shall be appropriated by the board to pay the principal and interest. This sum shall be preserved in a separate fund for that purpose. All bonds and coupons not paid at maturity shall bear interest from maturity until paid, or until sufficient funds for their payment have been deposited at the place of payment, and this interest shall be appropriated by the board out of the penalties and interest collected on assessments or any other available funds of the district. The board, in making the annual levy of assessments, shall take into account the maturing bonds and interest on all bonds and make ample provisions in advance for their payment. If the proceeds of the original levy of assessments are not sufficient to pay the principal and interest of all bonds issued, the board shall make any additional levy upon benefits assessed necessary for this purpose. However, no levy of assessments shall be made in excess of the benefits to the property as shown by the report of the appraisers, as corrected, that will in any manner impair the security of bonds or the fund available for the payment of the principal or interest.
  3. When he receives the bonds the treasurer shall execute and deliver to the president of the board a bond with good and sufficient sureties, to be approved by the board, conditioned that he shall account for and pay over as required by law and as ordered to do by the board all money received by him on the sale of any bonds, and that he will only sell and deliver the bonds to the purchaser of the bonds according to the terms of this section, and that he will return, duly canceled, any bonds not sold to the board when ordered by it to do so. This bond shall remain in the custody of the president of the board, who shall produce it for inspection or as evidence whenever legally required to do so. The bond of the treasurer may, if the board directs, be signed by a surety or bonding company, which may be approved by the board. The successor in office of any treasurer shall comply with all provisions applicable to his predecessor before receiving bonds or their proceeds. The treasurer shall promptly report all sales of bonds to the board.
  4. The board shall, at reasonable times, prepare and issue warrants for the payment of the maturing bonds sold and the interest payments coming due on all bonds sold. Each warrant shall specify what bonds and accruing interest it is to pay, and the treasurer shall place sufficient funds at the place of payment to pay the maturing bonds and coupons when due, as well as a reasonable compensation to the bank or trust company for paying them, not to exceed two dollars and fifty cents ($2.50) for each one thousand dollars ($1,000) par value of bonds or coupons paid.

History. 2380b-42: amend. Acts 1976 (Ex. Sess.), ch. 14, § 245, effective January 2, 1978; 1978, ch. 384, §§ 416, 578, effective June 17, 1978; 1996, ch. 274, § 60, effective July 15, 1996.

Legislative Research Commission Note.

This section was amended by two sections of Acts 1978, ch. 384, which do not appear to be in conflict and which have been compiled together.

Research References and Practice Aids

Cross-References.

Refunding drainage bonds, KRS 269.010 to 269.060 .

268.380. Cost of improvements not to include interest charges — Assessed enhanced value conclusive as to benefits.

  1. If bonds are issued or money borrowed, the interest charges thereon shall not be considered a part of the cost of improvement in determining whether or not the cost of improvement is equal to or more than the benefit to the property in the district.
  2. The assessed enhancement of value shall be conclusive as to the benefit that will inure to the property in the district.

History. 2380b-24: amend. Acts 1976 (Ex. Sess.), ch. 14, § 246, effective January 2, 1978.

268.390. Seal of board on assessment record — Notice and payment of assessments — Determination as to bond issue.

  1. When the secretary of the board receives from the clerk the copies of the assessment record, corrected by the county judge/executive and certified by the clerk, he shall notify the board which shall then meet and impress its seal on each page of each copy of the assessment record.
  2. The secretary shall then give notice that the corrected assessment record is in his hands, and that all persons whose property has been assessed may by a day certain to be stated in the notice, which shall be not less than thirty (30) nor more than sixty (60) days, pay to the treasurer of the board the minimum assessment levied against his property and have the lien upon the property released. Any person, on or before the day fixed in the notice, may pay to the treasurer the minimum assessment against any property, and take his receipt therefor showing the amount paid. A canceled check shall be the equivalent of a receipt. The treasurer shall indorse below the notation of that assessment on each copy of the assessment record in his hands in red ink the words “paid in full by  . . . . . ,” giving the date, and sign his name.
  3. Immediately after the date fixed in the notice on which payments of assessments may be made, the board shall meet and adopt a resolution which shall be spread upon the records of the board, stating the total amount of bonds to be issued for the district and fixing the number of series, the time of payment of each series and the denominations.

History. 2380b-25: amend. Acts 1976 (Ex. Sess.), ch. 14, § 247, effective January 2, 1978; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978.

268.400. District assessment register — Preparation by secretary — Sheriff receipts register — Copies to counties in district.

  1. As soon as the board has adopted the resolution relative to the issue of bonds, the secretary shall prepare a district assessment register in a well-bound book and as many copies thereof as there are counties in which any part of the district is located. This register shall contain the name of the owner of each piece of property found in the report of the appraisers in the assessment of benefits, a description of the property assessed, as modified, the minimum district assessment, the interest district assessment and the annual installment to be paid each year for the time the bonds are to run, except when the minimum district assessment has been previously paid.
  2. The district assessment register shall be in substantially the following form:
  3. Each assessment shall be on a separate sheet, and there shall be as many spaces prepared for the sheriff to sign as there are annual payments to be made. Each sheet shall be signed by the president and attested by the secretary, and the official seal of the board shall be attached at the bottom of each page. When the sheriff collects any annual installment of the assessment he shall give the payer a receipt and indorse it paid on the blank space on the assessment sheet.
  4. When the district assessment register has been completed the secretary shall deliver a copy to the county clerk in each county where any part of the district is located and take his receipt therefor. The clerk shall file and keep it in his office as a permanent record.

“The district assessment register of district, in the County (Counties) of , Kentucky. Whereas the district, located in the County (Counties) of in the state of Kentucky, was duly established by the orders of the County, and thereafter the plan for reclamation of the district and the report of the appraisers, containing the assessment of benefits and damages, were approved, and the proceedings referred to the board of County, to cause such improvements to be made, and to levy an assessment upon the property in that district to pay for them, to issue bonds and cause the assessment to be collected, and whereas said board after ascertaining the cost of the improvements, did levy a district minimum assessment and a district interest assessment, and apportion them to the property in the district according to the ratio of benefits, which was also corrected and approved, the board now certifies that the following is a true and correct table of assessments so levied upon, and to be paid on each piece of property, together with the annual installments thereof, which shall become due and payable at the same time and place, and collectible by the same person and in the same manner that state and county taxes are payable and collected. This district assessment register is the authority of the tax collector of each county in which any part of the district is located for demanding and collecting the assessments. Name of owner Post office address Description of property assessed Description In what county located No. of acres Amount of assessed benefits $ Total amount of minimum district assessment $ Total maximum assessment $ Amount to be collected for the year 19 19, $, Paid by Collector. Amount to be collected for the year 19 19, $, Paid by Collector. Amount to be collected for the year 19 19, $, Paid by Collector. The collector of taxes in the County of is hereby ordered to collect the above assessment and pay same to the treasurer at the time required by law each year. Done by order of the board of drainage commissioners of County, Kentucky, on this the day of , 19 Attest: Secretary President (Seal)”

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History. 2380b-26: amend. Acts 1976 (Ex. Sess.), ch. 14, § 248, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Drainage, Reclamation, and Sewer Districts, § 338.00.

268.410. Board certifies to sheriff amount of installment due — Form of certificate — Collector’s drainage assessment book.

  1. In December of each year the board shall certify to the sheriff of each county in which any part of the district is located the annual installment of the assessments to become due and be collected during the succeeding year. This installment shall be collected at the same time as state and county taxes.
  2. The certificate of the installment of assessment shall be in substantially the following form:
  3. A table or schedule shall follow, showing in properly ruled columns: First, the names of the owners as they appeared in the district assessment register; second, a brief description of the property opposite the names of the owners; third, the amount of the annual installment of assessment on each piece of property; fourth, the amount of maintenance assessment; fifth, a blank column in which the collector shall record the amounts collected by him; sixth, a blank column in which the collector shall record the date of payment of each sum; seventh, a blank column in which the collector shall record the name of the person paying each sum. The columns in which the annual installment and the maintenance assessment appear shall be totaled. The total amount shall correspond to the amount set out in the certificate.
  4. The certificate and table shall be prepared in the form of a well-bound book, indorsed and named “Collector’s drainage assessment book, drainage district No.  _________  of  _____________________________________  County (Counties), Kentucky, for the year 19 _________ ” This indorsement shall also be printed on the top of each page. At the end of the table of assessments shall be these words:

“Commonwealth of Kentucky. County of To the sheriff of County: “This is to certify that the board of drainage commissioners of County, Kentucky, on behalf of drainage district No. of County (Counties), Kentucky, has levied the sum of $ as the annual installment of assessments for the year 19 , of the total assessment levied and certified to the county clerk of your county. The board, on behalf of the drainage district, also levies $ as a maintenance assessment for that year, both of which are set out in the following table, in which are: First, the names of the owners of property as they appear on the district assessment register; second, the amount of the installment of the assessment levied on that property due and collectible for the year 19, third, the amount of maintenance assessment levied against it. The assessment shall be payable at the same time as state and county taxes and you are ordered to demand and collect the assessments at the same time you demand and collect the state and county taxes due on the same property. This certificate shall be your warrant and authority for making such demand and collection.”

Click to view

“Done by order of the board of drainage commissioners of County on this day of , 19 Attest: Secretary President (Seal)”

Click to view

History. 2380b-28: amend. Acts 1978, ch. 384, § 417, effective June 17, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Drainage, Reclamation, and Sewer Districts, § 338.00.

268.420. Collection of assessments by sheriff — Fee — Returns to treasurer — Delinquency penalty — Sale of assessment lien claims.

  1. The sheriff of each county of the district shall receive the collector’s drainage assessment book each year. He shall promptly and faithfully demand and collect the assessments at the same time that he demands and collects the state and county taxes due on the same property. If any property has been divided or transferred, the sheriff shall receive payment of assessments on any part charged with the assessments and give his receipt accordingly, and show therein upon what part of the property the assessment has been paid. The collector’s drainage assessment book shall be the warrant and authority of the sheriff for making demand and collection of drainage assessments. The fee of the sheriff for collecting drainage assessments shall be four percent (4%), which shall be added to the regular assessment. The sheriff shall return all collector’s drainage assessment books each year to the secretary of the board, and shall pay over and account to the treasurer of the district for all money collected thereon each year at the same time he pays over state and county taxes.
  2. If the assessment has not been paid to the sheriff or collector on any parcel of land or property described in the assessment register certified to him during the year for which said assessment was levied or on or before the last day of February of the year immediately following the year for which said assessment was levied and became due, a penalty of six percent (6%) shall automatically attach thereto on and after said date, which shall be added to the assessment against such parcel or parcels of land on which the assessment has not been paid, to be collected in the same manner that the assessment is collected; and unless so paid the sheriff or collector shall advertise and offer for sale the assessment lien claim of said district in the same manner as state and county tax claims are required to be sold, which sale shall be for the assessments, penalties, costs and expenses of making sale in the same manner and with the same force and effect as sales of tax claims for state and county taxes, and subject to redemption by the owner within the time, on the terms, upon the penalties and upon the same conditions that are now and may hereafter be provided by general law for the redemption of land or other property sold by the sheriff for state or county taxes.
  3. When an assessment lien claim is sold for the assessment herein provided for, if no one will bid for and purchase and pay for such claim so offered for sale, the amount of the assessment, penalty, interest and costs, including the costs for advertising such sale, it shall be the duty of the sheriff making such sale to purchase same for the board of drainage commissioners to which such assessment is due and owing, and he shall make report of such fact to the county clerk of the county in which such land or property is located, as required by law under sales to the state and county for state and county taxes. He shall also certify such facts in like manner to the secretary of the board of drainage commissioners, which report shall be received and kept by the secretary of such board and recorded by him in the general drainage record book kept by him.
  4. The purchaser of any such lands pursuant to a proceeding in enforcement of said assessment lien claim shall take said property subject to the future assessments to be levied against said property for making the improvement, including all such assessments becoming delinquent after the sale of the assessment lien claim thus enforced. The purchaser of such assessment lien claims shall have the same estate, right, title, and interest in the delinquent property that purchasers of certificates of delinquency acquire at sales of tax claims for state and county taxes, subject alone to the provisions of this section.

History. 2380b-28a, 2380b-30: amend. Acts 1942, ch. 158; 1944, ch. 165; 1978, ch. 384, § 418, effective June 17, 1978.

NOTES TO DECISIONS

1.Interest and Penalties.

The board may direct the sheriff not to collect, for the time being, interest and penalties which may have accrued on drainage assessments. Board of Drainage Comm'rs v. Alliston, 198 Ky. 310 , 248 S.W. 850, 1923 Ky. LEXIS 434 ( Ky. 1923 ).

2.Subsequent Purchaser.

Purchaser of land while suit to collect assessments was pending and grantee under her were bound by subsequent proceedings in suit, even though no lis pendens notice was ever filed in county clerk’s office. Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

3.Sale of Land.

Where board properly proceeded under this section and had land sold for delinquent drainage assessments, landowner could not later sue to prevent ejectment and to quash writ of possession. Drew v. Board of Drainage Comm'rs, 264 Ky. 270 , 94 S.W.2d 664, 1936 Ky. LEXIS 314 ( Ky. 1936 ).

4.Judgment.

Judgments rendered in drainage suit and in suit to collect assessments are not subject to collateral attack in absence of allegation of fraud or mistake. Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

Cited:

First Nat’l Bank v. Board of Drainage Comm’rs, 229 Ky. 508 , 17 S.W.2d 431, 1929 Ky. LEXIS 788 ( Ky. 1929 ).

Opinions of Attorney General.

While KRS chapters 268 and 104 both deal with flood control, they provide entirely separate means of establishing and financing flood control districts; under chapter 268, the district is created by order of the fiscal court and is funded by beneficial assessments which are not a tax and are collected under the mechanism established in this section; under chapter 104, the district is established by the secretary for natural resources and environmental protection and the tax authorized is a property tax that is added to the regular property tax bills. OAG 92-23 .

Research References and Practice Aids

Cross-References.

Certificates of delinquency, see KRS 134.122 to 134.131 .

268.430. Treasurer may receive payment of assessments — Certification of unpaid assessments — Collection not defeated by irregularity.

  1. When ordered by the board the treasurer shall receive the annual payment of drainage assessments directly from any owner, and shall give a proper receipt. On December 1 of each year the treasurer shall certify to the sheriff a list of all property on which drainage assessments for that year have not been paid to the treasurer. Any assessments not paid to the treasurer or sheriff shall be treated by the sheriff as delinquent drainage taxes. This section shall not relieve the board or sheriff of any duty.
  2. No collection of assessments shall be defeated because of any irregularity in the proceedings which did not affect the substantial rights of the party complaining.

History. 2380b-28a, 2380b-56: amend. Acts 1976 (Ex. Sess.), ch. 14, § 249, effective January 2, 1978.

268.440. Payment in advance of full assessment levied.

  1. At any time prior to the issuance of the bonds, any person may pay in one lump sum the full amount of the assessment levied against his property, less the amount added thereto to meet interest. The secretary of the board shall then enter upon the district assessment record opposite each tract for which payment is made the words “paid in full” and such assessment shall be deemed satisfied. The secretary shall also make the same entry opposite each tract for which payment is made in the table included in the certificate filed in the office of the county clerk. However, this payment shall not prevent the levying of additional or maintenance assessments against the property.
  2. At any time after the issuance of the bonds, the board may receive from any owner payment in full of the unpaid portion of the minimum district assessment against his property, if arrangements can be made with the bondowners for the surrender and retirement of an amount of bonds, with coupons attached, equal in principal to the amount of the lump payment, and if the transaction will cause no present or future shortage of funds for payment of coupons and the retiring of maturing bonds.

History. 2380b-45, 2380b-45a.

NOTES TO DECISIONS

Cited:

Rollins v. Board of Drainage Comm’rs, 281 Ky. 771 , 136 S.W.2d 1094, 1939 Ky. LEXIS 39 ( Ky. 1939 ).

268.450. Board may defer payment of assessment — Interest installments to cover cost of bonds.

If the board believes the interest and welfare of the owners will be best served by not requiring any part of the minimum district assessment to be collected for not more than five (5) years from the time the minimum and interest assessments are confirmed by the county judge/executive, it shall by resolution fix the time when the first annual assessment shall become payable. However, sufficient annual assessments shall be levied and collected each year till the year the first installment of the minimum and interest assessments are due to pay the interest on the bonds, plus the cost of levying and collecting them. The annual interest installments shall be levied on all property in the exact ratio of the assessments confirmed by the county judge/executive.

History. 2380b-27: amend. Acts 1976 (Ex. Sess.), ch. 14, § 250, effective January 2, 1978; 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978.

NOTES TO DECISIONS

1.Suspension of Collection.

This section seems to lodge with the board authority, in its discretion, to suspend as against the owners of the property in the district the collection of the assessments for as long a period as five (5) years. Board of Drainage Comm'rs v. Alliston, 198 Ky. 310 , 248 S.W. 850, 1923 Ky. LEXIS 434 ( Ky. 1923 ).

2.Interest and Penalties.

The board may direct the sheriff not to collect, for the time being, interest and penalties which may have accrued on assessments. Board of Drainage Comm'rs v. Alliston, 198 Ky. 310 , 248 S.W. 850, 1923 Ky. LEXIS 434 ( Ky. 1923 ).

When board directs sheriff not to collect penalties and interest, it is estopped to claim them against him. Board of Drainage Comm'rs v. Alliston, 198 Ky. 310 , 248 S.W. 850, 1923 Ky. LEXIS 434 ( Ky. 1923 ).

268.460. Board may abate change in date of collecting assessment.

If the date of collecting drainage assessments and applying the penalty for delinquency is changed by law after the issuance of any obligations for a district, and interferes with the proper discharge of the obligations, the board may, by written notice to the sheriff, require payment according to the law in effect at the time the obligations were issued. Nothing in this section shall be construed to invalidate the provisions of KRS 268.430 .

History. 2380b-30a.

268.470. Board may levy maintenance assessment — Terms — Purpose — How recorded — Collection.

  1. To maintain and preserve any improvement and to defray the current expenses of the district, the board may, upon the completion of any improvement and on the first Monday in December in each year thereafter, levy an assessment upon each piece of property within the district, to be known as a maintenance assessment. This maintenance assessment, apportioned upon the basis of benefits assessed on account of original construction, shall not exceed ten percent (10%) thereof in any one (1) year, and shall be certified to the sheriff of each county in which property of the district lies as the annual installment of assessment is certified, and recorded in the same book, but in a separate column under the heading “maintenance assessment.” This assessment shall not in any one (1) year exceed two percent (2%) of the original cost of construction, unless consent is first obtained in writing from the owners of two-thirds (2/3) of the property affected.
  2. The sheriff shall demand and collect the maintenance assessment, make return, receive the same compensation and be liable for the same penalties for failure or neglect as is provided in KRS 268.420 for the annual installments of assessments. The maintenance assessment shall be payable and shall be collected at the same time each year that the other assessments of the district due that year are payable, shall bear the same penalties and shall be enforced in the same manner.

History. 2380b-28a, 2380b-43.

Opinions of Attorney General.

Since the Spencer County Flood Wall Commission was organized under chapter 268, the provisions in that chapter apply; the Commission must follow the tax collection procedure set out in chapter 268, which precludes the inclusion of the assessment on county property tax bills. OAG 92-23 .

Research References and Practice Aids

Cross-References.

Withdrawal of land from district to avoid maintenance assessments, KRS 269.260 .

268.480. Owners may maintain improvements — Credit slip for work done — Terms — Use.

  1. Owners in a district may be employed on maintenance work and their work credited against their maintenance assessments, within the discretion of the board or the drainage commissioners. In part or full payment for the work, printed credit slips shall be issued by the president of the board, the drainage commissioner and the treasurer of the district, each slip showing to whom issued, the date and hours of work, whether day labor, teams or otherwise, materials supplied, location of work and any other information the board considers proper. Before becoming valid, the credit slips shall be approved by the board and made a part of its records. Rates of pay shall not be greater than current for similar work in the locality. The work shall be distributed among the landowners as equitably as is economically possible, but economy shall be the first consideration, and only satisfactory workers shall be employed.
  2. At least twenty (20) days before the maintenance assessments are due all credit slips shall be sent to the treasurer and proper deductions made for them from the maintenance assessments. The board shall report to the sheriff the deductions to be made, and a copy of the report shall be retained in the minutes. The board may authorize the treasurer to receive money payments to make up the balance due on maintenance assessments. The sheriff shall collect the remainder of the assessments in the regular way. The board may, at its discretion, permit transfer of credit slips from one (1) owner to another, and the use of credit slips in other than the year in which the work was done. Otherwise the credit slips shall be valid only in the year in which the work is done. Credit slips shall not be used in payment of other than maintenance assessments.

History. 2380b-43a.

268.490. Lien for assessments — Rank.

All drainage assessments provided for in this chapter together with all penalties for default in payment and all costs of collection shall, from the date of filing the district assessment register in the office of the county clerk until paid, constitute a lien superior to all other liens except the lien for state, county, city, school and road taxes.

History. 2380b-23, 2380b-29.

NOTES TO DECISIONS

1.Timber.

Board’s lien covered timber on land, and board was entitled to proceeds from sale of timber. Board of Drainage Comm'rs v. Alexander, 235 Ky. 689 , 32 S.W.2d 22, 1930 Ky. LEXIS 438 ( Ky. 1930 ).

2.Invalid Sale.

If board purchases land at invalid sale for drainage assessments, its original lien for unpaid taxes remains in force. Board of Drainage Comm'rs v. Alexander, 235 Ky. 689 , 32 S.W.2d 22, 1930 Ky. LEXIS 438 ( Ky. 1930 ).

Cited:

Drew v. Board of Drainage Comm’rs, 264 Ky. 270 , 94 S.W.2d 664, 1936 Ky. LEXIS 314 ( Ky. 1936 ).

Research References and Practice Aids

ALR

Superiority of special or local assessment lien for drains over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority. 75 A.L.R.2d 1121.

268.500. Subsequent owner’s privity — Apportionment of assessment.

  1. Any person who acquires title to any property affected by any proceeding under this chapter, after the filing of the petition for establishment of any district and the giving of notice thereof by the clerk of the court, shall be deemed privy to the person owning or in possession under claim of ownership at the time of filing the petition, and shall be bound by all subsequent proceedings as the owner at that time would have been bound if he had remained owner of the property. The property assessed shall in each instance be liable for the assessment against it, and each installment of any assessment shall be paid by the owner in possession at the time any installment becomes due.
  2. Any land assessed for benefits in which one or more persons own the life estate with the remainder to some other person, shall be assessed as any other land by the appraisers, and the name of the life tenant and the remainderman reported if known, but the remainderman or reversioner need not be brought in the proceedings before his interest becomes vested. The assessment may be paid by either the life tenant or the remainderman, and when so paid the owner not paying shall be liable to the one who pays the assessment for such proportion of the amount paid as his interest in the property bears to the total property assessed according to the life tables at the time in use in this state. The person who pays shall have, for his own benefit, the same lien provided for the original assessment, which may be enforced by action in any court of competent jurisdiction. An owner of any undivided interest in lands may pay the whole assessment and be entitled to like contribution and substitution.

History. 2380b-41, 2380b-52: amend. Acts 1976 (Ex. Sess.), ch. 14, § 251, effective January 2, 1978.

NOTES TO DECISIONS

1.Purchaser.

Purchaser of land, while suit to collect assessments was pending, and grantee under her were bound by subsequent proceedings in suit, even though lis pendens was not filed. Thompson v. Board of Drainage Comm'rs, 258 Ky. 68 , 79 S.W.2d 381, 1935 Ky. LEXIS 113 ( Ky. 1935 ).

Cited:

Rollins v. Board of Drainage Comm’rs, 281 Ky. 771 , 136 S.W.2d 1094, 1939 Ky. LEXIS 39 ( Ky. 1939 ).

268.510. Board may make improvements, control water power — Condemn property.

  1. In order to effect the drainage, protection and reclamation of the land and other property in any district organized under this chapter subject to assessment, to protect cities from overflow, and to promote the public health or general welfare of the community, the board acting for the district may clean out, alter, construct or maintain any drain in or out of the district, and construct and maintain any levees, dikes, dams, revetments, reservoirs, holding basins, floodways, pumping stations, syphons and any other work and improvements deemed necessary to preserve and maintain the works or prevent overflow of land or protect any city or parts thereof in or out of the district. The board may construct or enlarge any bridge needed in or out of the district across any drain or other improvement or any public highway, railroad right-of-way, track, grade, fill or cut, subject to the provisions of KRS 268.530 ; construct roadways upon, along and over levees and embankments; remove any fence, building or improvement in or out of the district.
  2. The board may hold, control and acquire by donation or purchase, or, if need be, condemn any land, easement, railroad right-of-way, sluice, conduit, sewer, holding basin or franchise in or out of the district for any purpose provided for in this chapter.
    1. The board may also condemn, pursuant to the Eminent Domain Act of Kentucky, for the use of the district any property within or without the district not acquired or condemned by the board on the report of the appraisers.
  3. The board may control all water power created by the construction of improvements in the district, and construct and maintain any hydroelectric power plants to develop such power for the use of the district and use any funds in the treasury of the district not otherwise appropriated for the construction and maintenance of such plants. The board may lease any power in excess of that required for the use of the district. The proceeds of such lease shall be turned in to the treasury of the district.
  4. However, the construction or maintenance of any improvement shall not impair navigation upon any navigable stream in this state.

History. 2380b-2, 2380b-32: amend. Acts 1976, ch. 140, § 104; 1976 (Ex. Sess.), ch. 14, § 252, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (2)(a) of this section is compiled as KRS 416.540 to 416.680 .

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the constitution. OAG 63-869 .

Research References and Practice Aids

ALR

Necessity for taking particular property for drainage purposes as affecting exercise of eminent domain. 65 A.L.R. 504.

268.515. Power of condemnation.

Whenever any property is going to be taken or damaged by the board pursuant to this chapter, the board may effect an agreement with the owner for compensation therefor. If no agreement is reached, the board may condemn the property pursuant to the Eminent Domain Act of Kentucky.

History. Enact. Acts 1976 (Ex. Sess.), ch. 14, § 224, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

268.520. Board may construct or let contract for improvement — Bond — Supervision by chief engineer.

  1. The board may construct any improvement needed to carry out the plan for reclamation. To accomplish that end the board may employ men and teams and lease, rent, hire or purchase machinery, and directly construct any improvement, by the use of other and more efficient means than provided for in the plans adopted.
  2. The board may, in its discretion, let the contract for the improvement, either as a whole or in sections, but before letting any contract the board shall advertise for bids in the manner which it may by resolution determine will be for the best interest of the district. When such contract is let, it shall be let to the lowest and best bidder, who shall give a good approved bond with ample security, conditioned that he will well and promptly carry out the contract to construct the improvement. The contract shall be in writing, and prepared by the attorney for the district. Before the work is commenced it shall be approved by the board and signed by the president and secretary of the board and the contractor, and shall be executed in duplicate. Complete plans and specifications of the work to be done and the improvements to be made under it shall be prepared by the chief engineer, and attached to and made a part of the contract. The board may require a certified check payable to it to accompany any bid, as a guarantee of good faith to be forfeited as liquidated damages upon the failure of the bidder to execute bond with the approved surety if the contract for the work is awarded to such bidder.
  3. The chief engineer shall be the superintendent of all improvements, and shall, whenever required, and at least once each month, make a full written report to the board of all work done and improvements made and any suggestions and recommendations to the board that he deems proper.

History. 2380b-21.

NOTES TO DECISIONS

1.Engineer.

The authority of the engineer ends when he reports to the board his plans and specifications. Bard v. Board of Drainage Comm'rs, 234 Ky. 263 , 27 S.W.2d 968, 1930 Ky. LEXIS 155 ( Ky. 1930 ).

Research References and Practice Aids

ALR

Liability of abutting landowner for injury to municipal employee engaged in constructing or repairing sewers or drains. 58 A.L.R.3d 1085.

268.530. Board to build bridges and culverts — May charge cost to corporation acting under franchise or cause corporation to construct.

  1. The board shall make all necessary bridges and culverts along or across any public highway or railroad which may be deemed necessary for the use or the protection of the work of reclamation in the district, except as provided in this section and in KRS 268.550 .
  2. If any bridge or culvert of any railroad or other corporation carrying on its business under a franchise is across any natural watercourse, drain or depression which is being improved by any district, and it is necessary to do any work under that bridge or culvert, or if a wider or larger bridge or culvert is needed there, the board shall give the corporation notice by delivering to its agent or officer in any county where any part of the district is situated a copy of the order of the board declaring the necessity of removing, constructing or enlarging the bridge or culvert.
  3. The corporation shall then remove, construct or enlarge the bridge or culvert within the time specified in the order and notice, which shall be not more than thirty (30) days. The bridge or culvert shall be constructed so as not to interfere with the free flow of water through the drains of the district.
  4. Should any corporation, after first being notified to remove, construct or enlarge any bridge or culvert, refuse or neglect to do so, then the board shall, unless it elects to compel the corporation to do the work as provided in subsection (6) of this section, have the work done. The board shall let the work according to plans and specifications to be provided at the expense of the corporation. The board shall first advertise that the work will be let to the lowest bidder by posting notices at three (3) or more public and conspicuous places in the vicinity where the bridge or culvert is to be removed, built or enlarged, for at least ten (10) days just before the letting of the work. This notice shall state the time, place and character of the work to be done.
  5. If the board has the work done, it shall pay for the removal, construction or enlargement of the bridge or culvert, but shall then recover the cost and expenses in any court having jurisdiction from the corporation whose duty it was to do the work. Both the board and the corporation shall have the same right of appeal from any judgment rendered in any action as provided for individual landowners.
  6. The board’s right to remove, construct or enlarge the bridge or culvert shall not deprive the board from compelling the corporation to do it by proper proceedings. Mandamus may be issued for this purpose.

History. 2380b-35.

NOTES TO DECISIONS

1.Cost.

A county may counterclaim for bridges constructed against drainage assessments levied against county. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

The drainage board, and not the county, is liable for costs of bridges if the physical conditions described in KRS 268.550 do not exist. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

268.540. Construction — Payment of cost and maintenance of bridge over drain crossing right-of-way of railroad or other franchise corporation.

If any drain is constructed in any district which crosses the right-of-way of a railroad or any corporation operating under a franchise, at any place other than at a natural depression in the earth or a watercourse, the railroad or corporation shall construct the bridge or culvert at the point where required. The expense shall be borne by the district, to be paid as part of the damages for the right-of-way in going across the railroad or corporation right-of-way and to be included in the judgment entered therefor. The railroad company or the corporation shall thereafter maintain the bridge or culvert and make any necessary changes.

History. 2380b-37.

Research References and Practice Aids

ALR

Location of drains and ditches crossing railroad right-of-way. 37 A.L.R. 219; 82 A.L.R. 425.

Municipal liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains. 61 A.L.R.2d 874.

Municipal Liability for Damage Resulting from Obstruction or Clogging of Drain or Sewer, 54 A.L.R.6th 201.

268.550. Drain crossing public highway — When county constructs bridge or culvert.

  1. If a drain improving any channel or watercourse in a district is on the line of any natural depression or watercourse which crosses any public highway where there is no bridge or culvert or opening in the highway sufficient to allow the flow of water in the drain as improved, the board shall give notice to the road commissioners or road engineer to construct or enlarge the bridge, culvert or opening to meet the improvement, stating the dimensions required. The road commissioners or engineer shall, within thirty (30) days from the time notice is served, make the improvement required.
  2. If they fail or refuse to do so, then the board shall construct or enlarge the bridge, culvert or opening at the expense of the county, and the fiscal court shall reimburse the board for the cost of the work. If the fiscal court refuses to reimburse the board, it may enforce their right of reimbursement in any court having jurisdiction.

History. 2380b-36.

NOTES TO DECISIONS

1.Cost.

A county may counterclaim for bridges constructed, against drainage assessments levied against county. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

The drainage board, and not the county, is liable for cost of bridges if the physical conditions described in this section do not exist. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

268.560. Natural drain into which public drain empties to be under board — Removal of obstructions in public drain.

  1. Whenever any public drain, established and constructed under this chapter or under any statute in force prior to June 18, 1918, empties into a natural drain, the natural drain, from the mouth of the public drain to the mouth of the natural drain, shall become to all intents and purposes a public drain, and subject to the supervision and control of the board.
  2. Whenever any obstruction exists in any natural drain which is an outlet for any public drain, as provided in subsection (1) of this section, and the removal of the obstruction is necessary, in the opinion of the board, for the successful operation of the public drain, the board may remove the obstruction, paying the cost out of funds collected from any district for which it is an outlet. If there is more than one (1), the expenses shall be prorated between them as the board considers equitable.

History. 2380b-58, 2380b-59.

Research References and Practice Aids

ALR

Municipality’s liability for damage from obstruction or clogging of drain or sewer due to unusual or extraordinary rainfall. 59 A.L.R.2d 324.

268.570. Owner may use drain as outlet — May condemn intervening land.

Any owner may use the drain as an outlet for lateral ditches from his land. If his land is separated from the drain by the land of another and they are unable to agree as to the conditions on which one may enter another’s land and construct the ditch, he may file his ancillary petition in the pending proceeding to the court, and secure condemnation as provided for in the Eminent Domain Act of Kentucky. When the ditch is constructed, it shall become a part of the drainage system and shall be under the control of the board and kept in repair by it.

History. 2380b-48: amend. Acts 1976, ch. 140, § 105.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

268.580. Owner to pay for damage to improvement caused by him — No person to obstruct improvement.

  1. If repairs to any improvement become necessary by reason of the act or negligence of any owner or his servant, agent, or stock, by which the improvement is obstructed, any repairs necessary to restore it to its previous condition shall be made by the owner at his own expense. Upon his failure to make the repairs within thirty (30) days after being notified by the board, he shall be deemed guilty of a misdemeanor.
  2. The board may have the obstruction removed, paying the cost out of funds collected from any district for which it is an outlet or of which it is a part, and if there is more than one the expense shall be prorated between them. All amounts so paid with interest at the rate of six percent (6%) per annum shall be charged to the owner in fault, and may be recovered by the board in any court of competent jurisdiction, and shall constitute a lien upon the land of such owner. When any such amount is recovered it shall be returned to the fund from which it was paid.
  3. No person shall damage or in any way obstruct any drain, levee or other improvement, or place any flood gate, bridge or fence across it without consent of the board, by order entered upon its record, in which shall be specified the kind of flood gate, bridge or fence, and it shall be erected in accordance with the order.
  4. The board shall enforce the provisions of this section.

History. 2380b-53.

Research References and Practice Aids

Cross-References.

Directors of sanitary district may clean out streams, KRS 220.280 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Petition to Require Ditch to be Cleaned, Form 338.02.

ALR

Liability of landowner for damages caused by overflow, seepage, or the like resulting from defect in artificial underground drain, conduit, or pipe. 44 A.L.R.2d 960.

Modern status of rules governing interference with drainage of surface waters. 93 A.L.R.3d 1193.

268.590. Board may amend plan for reclamation so as to provide for additional improvements — May levy additional assessments.

  1. If the work set out in the plan for reclamation of any district is found insufficient to reclaim all of the property of the district, the board may formulate new or amended plans containing new improvements or providing for the enlargement of existing improvements. Additional assessments may be made in proportion to the increased benefits accruing to the property because of the additional improvements.
  2. If it is found at any time that the amount of total assessments is insufficient to pay the cost of improvements in the plan for reclamation, or additional work done under the provisions of this section, the board of drainage commissioners may make additional levies to provide funds to complete the work.
  3. The total of all levies of assessments shall not exceed the total amount of benefits assessed.

History. 2380b-44: amend. Acts 1976 (Ex. Sess.), ch. 14, § 253, effective January 2, 1978.

268.600. Court, upon petition, may extend district — Amend plan for reclamation — Appoint appraisers — Notice.

  1. The board, or the owners of property adjacent to the district who desire to have their property made a part of the district, may file a petition with the clerk of the fiscal court organizing the district praying the court to amend its former order organizing the district, by correcting the plan, striking out or adding the names of owners or property, or by any other means. If the petition asks permission to change the plan for reclamation or that the boundary lines be changed, it shall also ask for three (3) appraisers to be appointed as provided in KRS 268.260 for the original proceedings.
  2. As soon as the petition is filed, the clerk of the fiscal court shall give notice as other notice is given, and substantially in the following form:

“ Court. Commonwealth of Kentucky. To , Greeting: “(Name of owner of land) “To the owners and all persons interested in the property in and adjacent to (drainage), (levee), (reclamation) district No. of County (Counties), Kentucky. “(Here insert the names of all persons who are shown in the petition to own land sought to be annexed to the district). “You are hereby notified that (here state by whom petition was filed) has filed in the office of the clerk of the court a petition praying the court for permission to (here insert the prayer of the said petition) (and if it contains a prayer to annex land, describe the land), and unless you show cause to the contrary on or before the day of , 19, the prayer of this petition may be granted. “This day of , 19 Clerk.”

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History. 2380b-46: amend. Acts 1976 (Ex. Sess.), ch. 14, § 254, effective January 2, 1978.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Drainage, Reclamation, and Sewer Districts, § 338.00.

ALR

Constitutionality of statutes for formation or change of drainage districts. 69 A.L.R. 285.

268.610. Hearing on petition to amend plan — Duties of clerk after judgment — Compensation — Order of appraisal — Costs.

Any owner who will be affected by the proposed changes, amendments and corrections enumerated in the petition provided for in KRS 268.600 , may file objections to the granting of the prayer of the petition by the date named in the notice. The fiscal court will hear such petition and all objections filed against it in a summary manner and enter its order. The clerk of the court shall within fifteen (15) days after the entering of the order, transmit a certified copy of the order and a copy of the petition to the secretary of the board, who shall transmit a copy to the county clerk of each county in which any property in the district is located. The clerk shall file and preserve these copies in his office, for which he shall receive a fee of one dollar ($1). If the order of the court provides that the plan for reclamation be changed or the boundary lines of the district extended, the board shall direct the appraisers to appraise the property to be taken, assess benefits and damages and estimate the cost of the improvements as in KRS 268.260 and 268.270 . The appraisers’ report shall be treated in the same manner as is now provided for in the original formation of districts. If the petition is dismissed the party filing it shall pay the costs, but if it is sustained in whole or in part the objectors shall pay the costs.

History. 2380b-47: amend. Acts 1976 (Ex. Sess.), ch. 14, § 255, effective January 2, 1978; 1978, ch. 384, § 419, effective June 17, 1978.

268.620. Use of other improvements or property in plan to prevent overflow.

If the plan for reclamation in any district relates in part to the drainage of the lands and in part to the prevention of overflowing of lands within the district from any stream or body of water coming from without the district, any stream, drain, cut or depression, or any fill, levee or embankment may be used as part of the reclamation system by changing it in any way, if the efficiency thereof to the owner is not impaired.

History. 2380b-50.

268.630. Improvements of other authorities not affected — Joint use — Appropriations by county or city to aid district.

  1. Nothing in this chapter shall be construed to deprive the fiscal court or other governing authority of any county or city of its jurisdiction and control over any levee or drain established or constructed under its authority. However, any such improvement may be used as an outlet for any drain established under this chapter, and the governing authority of the county or city may, in its discretion, delegate to the board jurisdiction and control or a joint use and control over the improvement upon any conditions agreed upon between them. This agreement shall be written, approved by the parties to it, and recorded upon the minutes of the proceedings of both bodies.
  2. The fiscal court or other governing authority of the county or city may, when in its judgment the public interests and welfare justify it, make appropriations to aid any district in constructing or maintaining any improvement provided for in this chapter or under the control of the board.

History. 2380b-57.

Opinions of Attorney General.

A board of drainage commissioners could agree to pay costs above $100,000 for clearing of the channel of the Salt River and the fiscal court could make appropriations to assist in construction and maintenance of this improvement subject to the debt limitations of the constitution. OAG 63-869 .

268.640. Distribution of funds on dissolution of district.

If upon the dissolution of any district organized under this chapter any money is in the hands of the treasurer, after all liabilities of the district are satisfied, it shall be prorated to the several pieces of property according to the assessed benefits in the organization of the district. The prorata share shall be paid to the then owner of the property.

History. 2380b-61: amend. Acts 1976 (Ex. Sess.), ch. 14, § 256, effective January 2, 1978.

268.650. Discontinuance of improvement.

In counties containing not more than one (1) drainage district established under Chapter 268 of the Kentucky Revised Statutes, or under the Act of 1918 from which it came, twenty-five percent (25%) of the landowners, or the owners of twenty-five percent (25%) of the land, may, at any time petition the fiscal court for a discontinuation of the improvement. The petition shall give the names of all persons interested in the maintenance of the improvement and owning land in the district. The court shall conduct a hearing on the matter, and shall issue notices thereof at least fifteen (15) days before the hearing and cause them to be served upon all parties interested, notifying them that the court will consider them at the hearing. If no valid reason is shown against the discontinuance of the improvement, the court shall enter an order discontinuing it, after which it shall cease to be a public improvement. An appeal may be had from the order to the Circuit Court, as provided in the establishment of improvements.

History. Enact. Acts 1944, ch. 109, § 1; 1976 (Ex. Sess.), ch. 14, § 257, effective January 2, 1978.

268.990. Penalties.

Any person who violates any of the provisions of KRS 268.580 shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100).

History. 2380b-49, 2380b-53: amend. Acts 1984, ch. 100, § 29, effective July 13, 1984.

CHAPTER 269 Miscellaneous Provisions as to Ditches, Drainage, and Reclamation

269.005. Compliance with KRS 65A.010 to 65A.090.

Any board established under this chapter shall comply with the provisions of KRS 65A.010 to 65A.090 .

History. Enact. Acts 2013, ch. 40, § 79, effective March 21, 2013.

269.010. Issue of refunding bonds for drainage, levee, or reclamation district — Maturity — Interest rate — Exchange of bonds or sale — Use of proceeds.

  1. Whenever the board of drainage commissioners or other governing authority of any drainage, levee, or reclamation district organized under any law of this state finds and declares of record that it is advisable and for the best interests of the property owners of the district to refund any part of the bonded indebtedness of the district, it may issue refunding bonds, payable at any time within forty (40) years from their date as the board or governing authority may determine. The refunding bonds shall not exceed the amount of bonds refunded and interest accrued on the bonds to the date of the refunding bonds. They shall bear interest at a rate or rates or method of determining rates as the board determines and be payable at least annually.
  2. When issued, refunding bonds may be exchanged for the outstanding bonds if the holders of the bonds agree, or the refunding bonds may be sold for not less than the par value and accrued interest. The proceeds of the sale of the bonds shall be used in the payment of the outstanding bonds and the cost incident to the issuing of the refunding bonds. No refunding bond shall become a valid obligation of the district until an equivalent amount of the bonds refunded have been surrendered and canceled. Until refunding bonds have been issued, the rate of tax or amount of assessment applicable to the bonds to be refunded shall not be reduced.

History. 2380d-1: amend. Acts 1996, ch. 274, § 61, effective July 15, 1996.

Opinions of Attorney General.

KRS Chapters 267 to 269 do not authorize the establishment of a joint drainage commission between the city and the county. OAG 80-93 .

Research References and Practice Aids

Cross-References.

Drainage of roads established by public road districts, KRS 184.010 .

Governor’s cabinet, powers as to drainage, KRS 147.100 .

Sanitation districts, KRS ch. 220.

Soil and water resources commission to assist in drainage programs, KRS 146.110 .

Soil conservation, KRS ch. 262.

Kentucky Law Journal.

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

269.020. Payment of assessment and release from liability for refunding bonds.

  1. If provisions are made for the issuance of refunding bonds, any property owner may, at any time within two (2) weeks after the order providing for their issuance is made, pay the full amount of uncollected principal tax or assessment chargeable to his property for the payment of the bonds proposed to be refunded, and upon payment thereof his property shall be released from the tax or assessment for the payment of the refunding bonds, but shall remain subject to additional taxes levied by the district.
  2. Any owner failing to avail himself of the privilege of paying in full the unpaid principal tax or assessment against his property, shall not be heard to complain of additional interest to be collected from his property for refunding bonds.

History. 2380d-1, 2380d-5.

269.030. Notice of intention to refund bonds — Form — Majority of owners may require abandonment of refunding.

  1. Before issuing any refunding bonds the board of drainage commissioners or other governing authority shall set a date and place for a hearing, and give notice of the hearing to all persons owning any interest in any property assessed in the district of its intention to refund the bonds. This notice shall be published pursuant to KRS Chapter 424. The hearing shall be held by the board or governing authority at the place designated by it.
  2. The notice will be sufficient if substantially in the following form:
  3. If, at or prior to the holding of the meeting and hearing, a majority of the owners in the district, owning a majority of the acres of land therein, file with the board or other governing authority written objections to the refunding of the outstanding bonds, the board or other governing authority shall enter an order reciting the fact that the objections have been filed and abandoning the refunding.

“All persons interested in property lying in District, County, Kentucky, take notice: “That District, County, Kentucky, desires to refund all (part) of its outstanding bonded indebtedness (and accrued interest) and that at in the City of , on the day of , 19, at o’clock any person having an interest in any property in the district may appear before the board of drainage commissioners (other governing authority) of the district, and show any cause why the refunding should not be done, and taxes in addition to the assessed benefits levied, if necessary, for the purpose of paying interest on the refunding bonds. You are further notified that if a majority of the owners of land in the district, owning a majority of the acres of land therein, object, the refunding will be abandoned. You will further take notice that unless the refunding is abandoned, any owner may, at any time within two weeks after the making of the order to issue refunding bonds, pay the full amount of uncollected principal tax or assessment chargeable to his property for the payment of the bonds proposed to be refunded. Any tract on which the tax or assessment is paid will be released from any tax or assessment for the payment of the refunding bonds, but shall remain subject to any additional taxes that may be levied by the district. “Dated at , Kentucky, the day of , 19 Board of Drainage Commissioners (other governing authority) of County, Kentucky, by .”

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History. 2380d-2: amend. Acts 1966, ch. 239, § 194.

269.040. Assessment installments and taxes to retire refunding bonds — Certification to sheriff — Apportionment and total allowed.

  1. Upon the issuance of the refunding bonds, all uncollected annual installments whether matured or not, shall be made payable in annual installments in amounts sufficient to provide for the payment of the refunding bonds at maturity. There shall also be levied from year to year taxes ratably allocable to such uncollected installments, sufficient to provide for the payment of the interest on the refunding bonds as it accrues.
  2. Each year while any refunding bonds remain outstanding, the board or governing authority shall ascertain the amount of funds required for the payment of maturing bonds and accruing interest during the succeeding year, and make up, certify and transmit to the sheriff or other tax collector of each county containing any of the property in the district an annual tax book setting out the annual installments so ascertained.
  3. The installments shall be apportioned to the property in the district in proportion to the unmatured annual installments or assessments. The total certification each year shall be sufficient to make ample provision for the payment of maturing principal and accruing interest on the refunding bonds, making due allowance for probable delinquencies in the payment of taxes and the costs of collection. The grand total of such annual installments imposed, exclusive of taxes levied for interest on refunding bonds, shall not exceed the benefits assessed, for any tract of land in the district.

History. 2380d-3.

269.050. Refunding taxes collected as are other district taxes — Rights of bondholders.

All taxes levied for the payment of refunding bonds shall be collected and collection enforced at the same time, in the same manner, and by the same means, and shall be secured by the same lien as is provided by law for other taxes levied by the district. The holder of any refunding bonds shall have the same rights as were possessed by the holders of the bonds refunded thereby.

History. 2380d-4, 2380d-6.

269.060. District may accept federal benefits.

Any drainage, levee or reclamation district may comply with or avail itself of the provisions of any legislation enacted by Congress to refund or extend the time of payment of the bonded indebtedness of any district or otherwise lighten the burden of taxation resting on the property in the district.

History. 2380d-8.

269.070. County may drain land — Payment of cost — Acquisition of necessary land.

Any county may remove any ponds, pools, or swamp marshes, or reclaim swamp land that may cause sickness in the county, by ditching, leveeing, or cleaning out logs and brush that may cause any creek to scatter or form pools of stagnant water. The cost shall be paid for out of the county levy or by taxation of the property in the county subject to taxation for state purposes. When the fiscal court undertakes such a project, it may acquire for the county by contract or condemnation any land necessary to carry out the project. If condemnation proceedings are necessary, they shall be conducted in the manner provided in the Eminent Domain Act of Kentucky.

History. 2413: amend. Acts 1976, ch. 140, § 106.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

NOTES TO DECISIONS

1.Ditching.

County had authority under this section to bear the cost of ditching which was necessary to complete the plan for elimination of unsanitary and unhealthful conditions caused by stagnant water that collected in pools in bend of creek and could also acquire land by condemnation or contract for the right-of-way for the new channel for the creek even though county had no authority to contribute to cost of building proposed sewer to eliminate the unhealthful, unsanitary conditions. Kenton County v. Covington, 302 Ky. 503 , 195 S.W.2d 93, 1946 Ky. LEXIS 714 ( Ky. 1946 ).

269.080. Election — Limit of tax — Issue of bonds — Maturity.

If the probable cost of the improvement is more than the income and revenues of the county for the year in which it is to be constructed, the county judge/executive shall order an election to be held in the county to ascertain the will of the qualified voters. The election shall be held in conjunction with a regular election, and the proposition shall be filed with the county clerk not later than the second Tuesday in August preceding the regular election. The proposition to be submitted to the voters shall state the amount, and object for which it is to be expended. The amount shall not exceed two percent (2%) of the value of the taxable property for state purposes, ascertained by the assessment next before the last assessment for state purposes. The proposed debt shall be made payable so as not to require a tax rate of more than fifty cents ($0.50) on each one hundred dollars ($100) in value of property subject to taxation for state purposes. If two-thirds (2/3) of those voting on the proposition vote for it, that fact shall be noted of record in the order book of the county judge/executive. The county judge/executive shall then have semiannual coupon bonds of the county prepared, to be made payable not later than forty (40) years after date, but payable at the option of the county at any time after two (2) years after date. The bonds shall be signed by the county judge/executive and countersigned by the county clerk. The coupons may be signed by the county clerk only. The bonds, when signed, shall be turned over to the fiscal court of the county.

History. 2414: amend. Acts 1976 (Ex. Sess.), ch. 20, § 6, effective January 2, 1978; 1978, ch. 384, § 420, effective June 17, 1978; 1996, ch. 195, § 68, effective July 15, 1996.

269.090. Contract for work — Commissioner appointed if bonds are sold — Tax levy for redemption of bonds.

The fiscal court may contract with any individual or corporation to do all work and to furnish all material in the execution of any such improvement voted for in the county, and may contract to pay in bonds, or may sell the bonds and pay for the improvement out of the proceeds. If bonds are sold to pay for the improvement, one (1) or more commissioners shall be appointed by the county judge/executive, who shall give bond, with good and sufficient security, to sell the bonds and receive and pay out the money. The fiscal court shall levy taxes on the taxable property of the county sufficient to pay the interest on the bonds and pay off enough bonds each year to discharge them all within the time they are payable.

History. 2415: amend. Acts 1978, ch. 384, § 421, effective June 17, 1978.

Research References and Practice Aids

Cross-References.

Professional engineer or licensed architect must be employed for certain public works, KRS 322.360 .

269.100. Establishment of taxing district for drainage of part of county — Election — Issue of bonds.

If any pond, marsh or swamp land exists in a small part of any county, and the voters thereof desire to improve that part, and the cost of the improvement amounts to more than the revenue and income of the county for that year, the county judge/executive may lay off such part of the county into a taxing district to tax the property thereof subject to taxation for state purposes to make the improvement. The county judge/executive may submit the proposition to the taxing district in the same way provided for submitting the proposition to the whole county. The election shall be held in conjunction with a regular election, and the proposition shall be filed with the county clerk not later than the second Tuesday in August preceding the regular election. If two-thirds (2/3) of the voters voting on the proposition vote for it, that fact shall be entered on the order book of the county and semiannual coupon bonds of the county shall be prepared, delivered and managed as in KRS 269.090 , to be paid by taxation of the property in the district subject to taxation for state purposes.

History. 2416: amend. Acts 1978, ch. 384, § 422, effective June 17, 1978; 1996, ch. 195, § 69, effective July 15, 1996.

269.110. Continuation of drainage corporations — To have benefit of this law.

Any corporation heretofore existing for the purpose of improving the public health by draining swamp land or lands which need drainage to make them more suitable for cultivation, shall be continued in force for those objects and purposes and shall have the benefit of KRS 269.120 to 269.230 .

History. 2417a-1.

269.120. Appointment of commissioners by county judge/executive — Qualifications — Compensation.

Upon written petition signed by more than one-half (1/2) of the landowners residing within the boundary of the district of the corporation, or their agents, guardians or personal representatives, the county judge/executive of any county in which the corporation exists shall appoint a board of commissioners consisting of three (3) landowners over twenty-five (25) years of age, residing in that county, not interested in the corporation and not owning any land within its district. Each commissioner shall be paid out of the treasury of the corporation not exceeding five dollars ($5) for each day’s service.

History. 2417a-2, 2417a-14: amend. Acts 1978, ch. 384, § 423, effective June 17, 1978.

269.130. Oath of commissioners — Filling of vacancy — Quorum — Removal.

  1. Before entering upon the duties of his office, each member of the board of commissioners shall take the following oath before the clerk of the Circuit Court: “I,  . . . . . . do solemnly swear that I will faithfully perform the duties of commissioner to assess, apportion and rate taxes under KRS 269.120 to 269.230 ; that I will impartially perform the duties of my office; that I am in no way interested in the company, nor holder or owner of any land within its boundary; and that I am a landowner and resident of  . . . . .  County, Kentucky, and over twenty-five years of age.” Any vacancy on the board of commissioners shall be filled by the county judge/executive, but the failure of the county judge/executive to appoint a person to fill the vacancy shall not invalidate the proceedings of the board of commissioners or prevent it from acting. Two (2) members shall constitute a quorum.
  2. A member of the board of commissioners may be removed pursuant to KRS 65.007 .

History. 2417a-7: amend. Acts 1978, ch. 384, § 424, effective June 17, 1978; 1996, ch. 136, § 5, effective July 15, 1996.

269.140. Commissioners shall assess land — File report — Contents of report — Error not to invalidate assessment — Subsequent assessments.

  1. The board of commissioners shall, as of July 1 succeeding its appointment, assess and apportion upon the land within the boundary of the district of the corporation a tax of not more than twenty-five cents ($0.25) and not less than ten cents ($0.10) per acre per year for a period of ten (10) years in proportion to the benefits conferred. It shall file a written report of the assessment and apportionment with the county clerk, who shall not copy it in his records but file a certified copy in the Circuit Court of the county, or in the chancery branch thereof if there be one.
  2. The commissioners shall enter in the assessment the names of all persons who, at the time of the assessment, are the owners or holders of land liable to be assessed. Opposite the name of the owner or holder they shall enter the tract owned or held, the number of acres as nearly as practicable, the name of the nearest resident, the rate of taxation per acre and the aggregate tax upon each tract for each of the ten (10) years.
  3. No error or informality in the assessment, description or location of the property, or in the name of the party assessed, shall invalidate the assessment if the property can with reasonable certainty be located from the description given, nor shall any irregularity or informality in the execution of the duties of the commissioners or any failure of duty on their part render any assessment invalid.
  4. After ten (10) years another assessment for ten (10) years may be in a like manner initiated and established, on the petition of the owners of more than one-half (1/2) of all the land within the boundary of the district of the corporation at that time.

History. 2417a-3, 2417a-4.

269.150. Tax notice — Form — Complaint — Hearing on assessment.

  1. The board of commissioners shall cause to be published pursuant to KRS Chapter 424, a notice substantially as follows:

    The board of commissioners shall also post copies of the notice at six (6) prominent places within the boundary, within seven (7) days after the filing of the report.

  2. Any person interested, including the corporation, may, within thirty (30) days from the filing of the report, file a complaint in writing with the clerk of the Circuit Court, specifying the parcel of land and alleged deficiency or partiality. The clerk shall assign the hearing of the complaints to the first day convenient to the Circuit Court at which the corporation and complainants may be heard. The court may pass upon the justice and fairness of the complaint summarily, and receive evidence if necessary, orally or in writing.
  3. The Circuit Court shall approve, reduce or increase the assessment, within the limits fixed by law. As to those lands with reference to which no complaint has been filed within thirty (30) days, the court shall confirm and approve the report. When all complaints have been determined, the court shall order the report as a whole approved and confirmed, and the assessments and apportionments shall be deemed conclusive and binding upon all parties. The court may correct any error in the report, or, if necessary, recommit it, or any part of it, to the board of commissioners at any time before confirmation.

“The company’s tax notice. “All holders and persons interested in land within the boundary of the company are hereby notified that the board of commissioners appointed by the county judge/executive under has reported an assessment and apportionment upon the land, and on the day of (insert date) it was filed with the clerk of the Circuit Court. Any person having any complaint to make of excessive or unjust assessment or apportionments shall file such complaint in writing with the clerk of the Circuit Court within thirty days after the filing of said report. As soon as practicable after the expiration of such thirty days, the clerk will set it to a day for hearing. KRS 269.120 Signed (insert name). Signed (insert name). Signed (insert name). Board of Commissioners.”

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History. 2417a-5: amend. Acts 1966, ch. 239, § 195; 1978, ch. 384, § 425, effective June 17, 1978.

269.160. Circuit Court’s determination of whether assessment was properly made — Court order conclusive.

The Circuit Court may cause proof to be taken as to whether the notice required by KRS 269.150 was given by the board of commissioners, and may, in its final judgment confirming the report, determine this fact and any other fact necessary to establish a binding assessment. The court may enter an order that all such steps have been properly taken, which order shall be prima facie evidence of the facts therein recited and conclusive upon all parties thereto.

History. 2417a-8.

269.170. Taxes — When assessed — When payable — Discount — Interest — Office for collection.

The taxes shall be assessed as of July 1, and payable to the corporation on or after October 1 of the year for which assessed, and shall become due on December 1 of that year. On all taxes paid during October before maturity, there shall be a discount of three percent (3%). On all taxes paid during November there shall be a discount of two percent (2%). After January 1 following maturity, all unpaid taxes shall bear interest at the rate of one-half percent (0.5%) a month or fraction thereof until paid. The corporation shall keep an office where taxes are payable and the address of the office shall be lodged with the county clerk and enrolled in a book kept in his office. Any subsequent changes in the address of the office of the company shall be enrolled in the same book.

History. 2417a-9.

269.180. Corporation’s lien for taxes — Recording — Limitation — Procedure when tax is paid — Use of taxes.

The corporation shall have a lien for all taxes upon the land assessed and upon all personal property of the owners found upon the premises not exempt from execution, attachment, or distraint. This lien shall not be defeated by any means. It is a general lien such as arises for state and county taxes, and is superior to all other claims and liens except state and county taxes. For questions of limitation or apportionment as between vendor and vendee, it dates as of July 1 of each year. Unless suit is commenced or proceedings had within ten (10) years from July 1 of any particular year, the lien for that year’s taxes shall be lost. After the action of the Circuit Court of the county upon the assessment and apportionment, the clerk shall certify a copy of it to the county clerk, who shall record it in his office, together with a map showing the boundary of the corporation, and index the liens in real estate indexes in the name of the owner as grantor and the corporation as grantee. This record shall be notice to all persons of the taxes and any interest and costs thereon, and of the lien retained upon the land. When any tax has been paid, the president or treasurer of the corporation shall enter the word “paid” upon the record in the proper column, and enter the amount so paid and subscribe thereto the name of the corporation by him. The taxes shall be used by the corporation to maintain its system of ditches, and adding any necessary ditches and extensions, and for the general drainage purposes of the corporation.

History. 2417a-10: amend. Acts 1978, ch. 384, § 426, effective June 17, 1978.

269.190. Collection of taxes by rule — Enforcement of lien.

After December 1 of any year for which taxes are due, the corporation may file in the Circuit Court, in the proceedings in which the report has already been confirmed, the affidavit of one of its officers stating that the taxes are due upon a certain tract of land and the amount thereof, and giving a sufficient description of the land, together with the name of the owner or holder and alleging that the land is included in the assessment. The court shall then issue a rule against the owner or holder to show cause why he should not be compelled to pay the tax. The proceedings shall be had as upon rules issuing from the Circuit Court, and the court may render a personal judgment for the tax, interest and costs against the person owing the tax, and may render a judgment enforcing the lien for taxes and ordering a sale of the property described in the affidavit, and payment of taxes, interest and costs out of the proceeds. Sales shall be conducted in the Circuit Court for foreclosure of liens. Costs shall be paid by the losing party.

History. 2417a-11.

269.200. Collection of taxes by suit — Rights of corporation — Form of action.

  1. Taxes shall be collectible either by rule as provided in KRS 269.190 , or by action, equitable or ordinary, in any appropriate court. Suits for taxes shall be in the name of the corporation. The plaintiff shall have all the rights of other plaintiffs in courts of law and equity, and obtain a personal judgment against the owner for the amount of the tax, with interest and costs, as well as the enforcement of the lien.
  2. The equitable actions shall be conducted like suits upon liens arising out of contracts. The Circuit Court shall have jurisdiction of all amounts of ten dollars ($10) and over, exclusive of interest. The taxes due for earlier and later years may be included in the petition and judgment. Suits against different persons owing taxes may be joined in one action, and all persons interested in the question raised in the pleadings or claiming an interest in the land sought to be sold may be joined as plaintiffs or defendants. Proof in the action may be read for or against any party properly before the court.

History. 2417a-12, 2417a-13.

269.210. Powers of corporation as to ditches — Condemnation of property.

The corporation may extend its ditches, make other ditches, connect with any creek or stream and straighten or cut across any curve to facilitate drainage, and, when necessary, take the lands of private persons. The corporation is vested with the right and power of eminent domain for the condemnation of land that may be necessary, which remedy shall be pursued as provided by the Eminent Domain Act of Kentucky, the proceedings to be brought by the corporation in the Circuit Court, providing due compensation to the owners of land.

History. 2417a-14: amend. Acts 1976, ch. 140, § 107; 1976 (Ex. Sess.), ch. 14, § 258, effective January 2, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in this section is compiled as KRS 416.540 to 416.680 .

269.220. Extension of district by the county judge/executive — Hearing — Appeals — Assessments.

Upon the petition of the corporation desiring an extension or addition to the boundaries of its drainage district, the petition to be accompanied by a map showing the desired extension or addition, the county judge/executive shall cause summons to be issued against the owners of lands within the proposed extension or added territory calling upon them to show cause why the extension or addition should not be made. If a numerical majority of the persons owning land within the proposed extension or addition consent of record to it, the county judge/executive shall enter an order establishing the extension or additional boundary. Appeal shall lie for sixty (60) days to the Circuit Court, and if the order is affirmed or reversed, then to the Court of Appeals. The county judge/executive and Circuit Court shall certify to the county clerk their orders and judgments, which shall be recorded in the book showing the assessment and taxes. The extension or added territory shall be subject to the same provisions as the original district, and an assessment may be initiated by the corporation and by the owners of more than half the land within the extension or addition. The assessment shall be for the remaining years of the ten (10) year term as provided for other property in the district, and steps to perfect the assessment with respect to added or extended territory shall be had in accordance with the provisions for the original district.

History. 2417a-15: amend. Acts 1978, ch. 384, § 427, effective June 17, 1978.

269.230. Fees collected by circuit and county clerks — Annual financial statement of directors of corporation.

  1. The clerk of the Circuit Court shall receive from the corporation not more than ten cents ($0.10) for each parcel of land assessed, and shall deposit such sums in the manner provided for in KRS 30A.120 . The county clerk shall receive a fee pursuant to KRS 64.012 for recording the assessment in his office.
  2. The board of directors of the corporation shall annually, in January, file with the county clerk a detailed statement of all money received by it, from whom received and how spent.

History. 2417a-14: amend. Acts 1976 (Ex. Sess.), ch. 21, § 23, effective January 2, 1978; 1978, ch. 384, § 428, effective June 17, 1978; 2006, ch. 255, § 21, effective January 1, 2007.

269.240. Removal of obstructions from nonnavigable streams or drains by owner in counties of over 250,000 — Inspection and notice by county engineer.

  1. The owner of land in any county containing more than 250,000 population through which a nonnavigable stream has its natural outlet, or through which ditches or drains have been constructed and other ditches have their outlet, shall keep the same free from driftwood, trash or any obstruction which would stop the free flow of water.
  2. The county engineer shall inspect such streams, ditches and drains and see that they are free from obstructions. If he finds any obstruction, he, or one of his deputies or ditch inspectors, shall notify the owner of the land abutting on the stream, ditch or drain in writing to remove the obstruction.

History. 2417b-1, 2417b-2.

269.250. County engineer to remove obstructions not removed by owner — Lien for and payment of cost.

The county engineer shall remove any obstruction not removed by the property owner within sixty (60) days after having been notified. The county engineer shall do this work in the same manner as road work is done in the county. He or his deputies shall keep an accurate account of the cost of the work and charge it against the property owner whose duty it was to do it. This cost shall be a lien upon the land and shall be added to the tax bill next due to the county.

History. 2417b-3.

269.260. Withdrawal of land from drainage district.

  1. If at any time any person or persons owning lands within any drainage district desires to withdraw his lands in whole or in part from the drainage district, such person or persons upon the approval of a majority of the qualified members of the drainage board may petition the county judge/executive for a withdrawal of his or their lands from the district. The county judge/executive shall set a date for a hearing on the petition not less than fifteen (15) nor more than thirty (30) days after the petition is filed and issue and cause to be served upon the drainage board notice of the hearing. Upon proper showing that the lands should be withdrawn from the drainage district, and if no valid reason is shown against the withdrawal of the lands from the drainage district, the county judge/executive shall enter an order withdrawing the lands. After the order of withdrawal is entered, the lands shall cease to be within the drainage district, but an appeal may be taken from the order to the Circuit Court, and from the Circuit Court to the Court of Appeals. All costs in any action filed are to be paid by the petitioner or petitioners regardless of the result of the action.
  2. The withdrawal of lands from a drainage district as provided for in subsection (1) of this section shall not relieve land already within a drainage district from the payment of its proportionate part of any bonds or other outstanding indebtedness which were issued or incurred in the district, but shall only relieve the land from the payment of maintenance assessments on the ditches.

History. Enact. Acts 1942, ch. 45, §§ 1, 2; 1978, ch. 384, § 429, effective June 17, 1978.

269.270. County surface water drainage districts.

  1. The county judge/executive in each county of this Commonwealth, wherein the fiscal court has requested it, is hereby authorized to establish a countywide surface water drainage district for the entire county including all municipalities. The cost of procuring the necessary rights-of-way and the construction and maintenance of such countywide drainage district shall be paid by the fiscal court out of the annual levy for county taxes. When the fiscal court undertakes such a project it may acquire for the county by contract or condemnation any land necessary to carry out the project. If condemnation proceedings are necessary they shall be conducted in the manner provided in the Eminent Domain Act of Kentucky.
  2. The administration of this district shall be exclusively by or within the fiscal court of said county, and the fiscal court is hereby authorized and empowered to employ such assistants, including commissioners or superintendent, and other employees as may be necessary for the construction, maintenance and continued operation of said system, and shall fix the salaries of all employees to be paid as other county employees are paid.
  3. In the construction and maintenance of such drainage system the fiscal court is authorized and empowered, as a part of the cost of construction and maintenance of said system, to build or construct such bridges and culverts over and across the ditches or canals of this system as in the opinion of the fiscal court are necessary.
  4. Nothing herein contained shall authorize or empower the construction or maintenance of a sanitary sewer system or sanitary sewers.

History. Enact. Acts 1954, ch. 45, §§ 1 to 4; 1976, ch. 140, § 108; 1978, ch. 384, § 430, effective June 17, 1978.

Compiler’s Notes.

The Eminent Domain Act of Kentucky referred to in subsection (1) of this section is compiled as KRS 416.540 to 416.680 .

Research References and Practice Aids

ALR

Location of drains and ditches crossing railroad right-of-way. 37 A.L.R. 219; 82 A.L.R. 425.

Necessity for taking particular property for drainage purposes as affecting exercise of eminent domain. 65 A.L.R. 504.

Constitutionality of statutes for formation or change of drainage districts. 69 A.L.R. 285.