Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES
Subchapter III. Formation of Tax Ditch; Procedure
§ 4116. Nature of a tax ditch.
A tax ditch organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate
and politic, exercising public powers.
48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4116.;
§ 4117. Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.
(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters
of their lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county
in which all or the major portion of the area involved is located, through the board of supervisors of the soil conservation
district of the county.
(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of
such petitions.
48 Del. Laws, c. 151, § 7; 7 Del. C. 1953, § 4117; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 10, 11; 77 Del. Laws, c. 430, §§ 8, 9.;
§ 4118. Form of petition.
A petition for the formation of a tax ditch shall be in the following
form:
PETITION
To the Superior Court of ........ County through the Board of Supervisors of
the Soil Conservation District of ......... County:
Whereas the undersigned (is) (are) the owner(s) of certain lands subject to
overflow or in need of water management situated in .......... Hundred(s)
.......... County (Counties), and the State of Delaware, said lands being more
particularly described as follows ..........................................................................
Whereas the draining and the prevention of flooding of said lands, and/or the
management of water for resource conservation on said lands would be a public
benefit and conducive to the public health, safety and welfare; and
Whereas the undersigned desire that a Tax Ditch be formed under the provisions
of Chapter 41, Title 7 of the Delaware Code, said Tax Ditch to be known as
............. Tax Ditch;
The undersigned therefore request the Soil Conservation District of
.......... County to make the investigation required under the above cited
chapter and, if the findings thereon be favorable, to file this petition in
the office of the Prothonotary of ............. County so that the Superior
Court of said County may take the necessary steps required by law to issue an
order establishing ............ Ditch.
Dated this ........ day of ........., ........ at ............, Delaware.
date month year
(Space for Signatures)
(Space for Signatures)
48 Del. Laws, c. 151, § 8; 7 Del. C. 1953, § 4118; 70 Del. Laws, c. 246, §§ 12, 13.;
§ 4119. Name of tax ditch.
The name of any tax ditch established under this chapter shall not be the same as the name of any existing drainage organization
within the same county.
48 Del. Laws, c. 151, § 71; 7 Del. C. 1953, § 4119.;
§ 4120. Deposit upon filing of petitions for tax ditch.
(a) The county soil conservation district shall require that a specified sum be deposited with it by the petitioners before
the petition is filed in the office of the Prothonotary to cover filing fees, mailing and other necessary expenses. The amount
of the deposit shall be determined by the county soil conservation district and may vary according to the size of the area
involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the district
shall require an additional deposit as soon as the need for such becomes evident.
(b) The district shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon
completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the
first moneys collected by the tax ditch, all expenses of formation charged to them by the county soil conservation district.
(c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees,
mailing and other necessary expenses incurred in the investigation and formation of a tax ditch.
48 Del. Laws, c. 151, §§ 14, 15; 7 Del. C. 1953, § 4120.;
§ 4121. Duties of county soil conservation district upon receipt of petition.
The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a
tax ditch, determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed.
If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division
of Watershed Stewardship, and by virtue of such action shall have made available to it the services of the Department of Natural
Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch.
48 Del. Laws, c. 151, § 9; 7 Del. C. 1953, § 4121; 57 Del. Laws, c. 739, § 183; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 14; 77 Del. Laws, c. 430, § 10.;
§ 4122. Investigation; hearing.
The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in
order to ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other
information to assist the district to determine whether the formation of the tax ditch is practicable and feasible and is
in the interest of the public health, safety and welfare. The district may hold such hearings as it deems necessary in order
to assist it in making such determination.
48 Del. Laws, c. 151, § 10; 7 Del. C. 1953, § 4122; 50 Del. Laws, c. 276, § 7; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 11.;
§ 4123. Report of investigation by Division of Watershed Stewardship.
The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district
together with its recommendations.
48 Del. Laws, c. 151, § 11; 7 Del. C. 1953, § 4123; 57 Del. Laws, c. 739, § 184; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 15; 77 Del. Laws, c. 430, § 12.;
§ 4124. Determination by county soil conservation district.
The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether
the formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and
welfare.
48 Del. Laws, c. 151, § 12; 7 Del. C. 1953, § 4124.;
§ 4125. Filing of petition and report; action by district when formation is found to be not practicable and feasible.
(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible
and in the interest of the public health, safety and welfare, it shall file the petition in the office of the Prothonotary
of the county in which all or the major portion of the land involved is located, together with the report of the Division
of Watershed Stewardship and such other relevant information as the district deems appropriate.
(b) Where the county soil conservation district determines that the formation of the proposed tax ditch is not practicable
and feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners
involved, and a new petition for the formation of that tax ditch may not be refiled for a period of 1 year from the date of
said notice.
48 Del. Laws, c. 151, § 13; 7 Del. C. 1953, § 4125; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 16; 77 Del. Laws, c. 430, § 13.;
§ 4126. Determinations to be made by board of ditch commissioners.
(a) Upon the filing of a petition for the formation of a tax ditch in the office of the Prothonotary of a county, the board
of ditch commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof,
go upon the lands that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required
drainage ditches; the approximate sizes, locations and specifications for required dikes, levees, structures and other necessary
works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax
ditch; the exterior boundaries of the tax ditch; the approximate boundaries of each farm, parcel or piece of land within the
tax ditch; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax ditch works
of improvement; the damages to lands, if any, which will result from the construction of the tax ditch; and an equitable basis,
considering relative benefits to each landowner, for the distribution of costs. The board of ditch commissioners shall obtain
from the county soil conservation district such assistance and information as is needed in making the required determinations.
(b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of
the county soil conservation district and the Division of Watershed Stewardship, (1) jointly make the determinations regularly
assigned to the board of ditch commissioners in subsection (a) of this section and in § 4127 of this title, and (2) prepare
the assessment list required by § 4129 of this title, and (3) supply any additional data necessary to complete the report
of the board of ditch commissioners required by § 4130 of this title and (4) personally sign a statement to the effect that
they approve the formation of the tax ditch, the board of ditch commissioners shall prepare their report from said determinations
and such data without going upon the lands involved.
48 Del. Laws, c. 151, § 16; 7 Del. C. 1953, § 4126; 50 Del. Laws, c. 276, § 9; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 17-22; 77 Del. Laws, c. 430, § 14.;
§ 4127. Existing works of improvement; compensation for work done thereon.
The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited
to ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for
work previously done by them on such works of improvement.
48 Del. Laws, c. 151, § 17; 7 Del. C. 1953, § 4127; 50 Del. Laws, c. 276, § 10.;
§ 4128. Factors in determination of cost.
(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include,
among other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages,
if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously
constructed and deemed adequate under § 4127 of this title.
(b) The estimated cost of interest which will develop if the tax ditch borrows money to finance construction and the estimated
cost of annual maintenance shall not be included in the total cost of the proposed tax ditch works of improvement.
48 Del. Laws, c. 151, § 18; 7 Del. C. 1953, § 4128; 50 Del. Laws, c. 276, § 11.;
§ 4129. Assessment list.
After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare
an assessment list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed
tax ditch, together with addresses and descriptions of those properties as currently recorded by the board of assessment of
the county. The list shall also show, for each property, that portion, expressed in acres, which is within the watershed or
drainage area. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown.
The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be
equal to or greater than the total cost of the proposed tax ditch works of improvement. The assessment list, as modified by
the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.
48 Del. Laws, c. 151, § 19; 7 Del. C. 1953, § 4129; 50 Del. Laws, c. 276, § 12.;
§ 4130. Proposed report of board of ditch commissioners.
The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report
containing the following determinations and information:
(1) The name of the proposed tax ditch;
(2) The hundred and the county in which the proposed tax ditch is situated;
(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:
a. The main ditch, all prongs, all subprongs and other divisions of the proposed tax ditch;
b. All dikes, levees, structures and other works of improvement of the proposed tax ditch;
c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close
to any part of the proposed tax ditch;
d. The exterior boundaries of the tax ditch;
e. The approximate boundaries of each farm, parcel or piece of land within the proposed tax ditch, together with the identification
of each farm, parcel or piece of land by name or code number;
f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the
tax ditch for construction and maintenance operations;
(4) The estimated total cost of the proposed tax ditch works of improvement;
(5) The assessment list required under § 4129 of this title;
(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners,
and other pertinent information;
(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed
and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is
entitled; and factors which influenced the determination of the damages awarded and compensation to be paid;
(8) The number of ditch managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed
tax ditch;
(9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities
to be assumed by the proposed tax ditch.
48 Del. Laws, c. 151, § 20; 7 Del. C. 1953, § 4130; 50 Del. Laws, c. 276, § 13; 56 Del. Laws, c. 312, § 3; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 23, 24; 77 Del. Laws, c. 430, § 15.;
§ 4131. Notice of hearing on establishment of tax ditch.
Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all
owners of property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment
of said tax ditch to be held in the county in which all or the major portion of the lands involved is located. The notice
shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It
shall also state that the purpose of the hearing is to consider the formation of a tax ditch which may affect the lands of
the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax ditch. In
addition, the notice shall state the place where a copy of the above proposed report of the board of ditch commissioners will
be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.
48 Del. Laws, c. 151, § 21; 7 Del. C. 1953, § 4131; 50 Del. Laws, c. 276, § 14; 70 Del. Laws, c. 246, §§ 25-27.;
§ 4132. Hearing; adoption of proposed report; right to adjourn hearing; referendum.
At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed
Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and
objections to the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes
in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare
it final. If, however, as a result of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the
hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at
the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to
an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply. At
the conclusion of the hearing, a referendum shall be held under the supervision of the board of ditch commissioners and the
Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast a ballot for or against
the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners. Each landowner
shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board
of ditch commissioners.
48 Del. Laws, c. 151, § 22; 7 Del. C. 1953, § 4132; 50 Del. Laws, c. 276, § 15; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 28, 29; 77 Del. Laws, c. 430, § 16.;
§ 4133. Contents of report; filing.
After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners
shall file the original and 2 copies of its final report in the office of the Prothonotary of the county in which all or the
major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum
and the place where and the time when it was held. The board of ditch commissioners shall also prepare and attach to the report
a statement showing:
(1) Whether the board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law;
(2) Whether the proposed tax ditch is practicable and feasible and in the interest of the public health, safety and welfare;
(3) Whether in laying out the tax ditch, the lands of every landowner assessed are directly or indirectly affected by some
part of the proposed tax ditch;
(4) Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report
and the reasons therefor;
(5) Whether, in the opinion of the board of ditch commissioners, the benefits that will result from the construction of the
proposed tax ditch will exceed the total cost;
(6) Any other recommendations or information which the board of ditch commissioners deems pertinent.
48 Del. Laws, c. 151, § 23; 7 Del. C. 1953, § 4133; 50 Del. Laws, c. 276, § 16; 70 Del. Laws, c. 246, §§ 30, 31.;
§ 4134. Signing of commissioners' report; dissent.
The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed
by all of the commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the
reasons for his or her dissent.
48 Del. Laws, c. 151, § 24; 7 Del. C. 1953, § 4134; 70 Del. Laws, c. 186, § 1.;
§ 4135. Waiving of commissioners' hearing and referendum.
In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of
the board of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall
not hold a hearing and referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131
of this title, but they shall prepare the statement required and file their report, pursuant to § 4133 of this title, without
a certificate of referendum.
48 Del. Laws, c. 151, § 25; 7 Del. C. 1953, § 4135; 50 Del. Laws, c. 276, § 17.;
§ 4136. Action by Superior Court; notice of final hearing.
(a) After the report and statement of the board of ditch commissioners have been filed in the office of the Prothonotary of
the appropriate county, they shall be carefully reviewed by the Superior Court of the county.
(b) If the report of a majority of the board of ditch commissioners is opposed to the formation of the proposed tax ditch,
or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation
of the tax ditch, or if such report shows that the total cost of the construction of the tax ditch will exceed the benefits
that will result therefrom, then the Superior Court shall issue an order denying the petition for the formation of the tax
ditch.
(c) If the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch,
and if the statement attached to said report indicates that the total benefits that will result from the tax ditch will exceed
the total cost of the proposed tax ditch works of improvement, and if the certificate stating the results of the referendum
shows that a majority of all votes cast were in favor of the formation of the tax ditch, then the Superior Court shall set
a date for the final hearing on the petition and shall direct the Prothonotary to give notice of the hearing by publication
in a newspaper of general circulation in each county in which any of the lands involved are located and by posting a written
or printed notice on the door of the courthouse of each such county, such publication and posting to be made not less than
15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners involved by 1st-class
mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report of the board
of ditch commissioners is filed in the office of the Prothonotary of the appropriate county it shall be open to inspection
by any interested person.
(d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the
report of the board of ditch commissioners and that they favor the formation of the tax ditch, and if the report of a majority
of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached
to the report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed
tax ditch works of improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall
confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, the order to become
effective immediately, and to be known as the ditch order. The confirmed report shall be considered a part of the ditch order.
48 Del. Laws, c. 151, § 26; 7 Del. C. 1953, § 4136; 50 Del. Laws, c. 276, § 18; 67 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 246, §§ 32, 33.;
§ 4137. Final hearing; ditch order.
At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an
objection in writing to the report of the board of ditch commissioners. The Superior Court shall review the report of the
board of ditch commissioners and any objections filed thereto, and make, in consultation with the ditch commissioners, such
changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall
not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to
be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch. If the conditions set
forth in § 4136(c) of this title, still exist after the objections have been considered and the necessary changes have been
made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and issue an order granting
the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed report
shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court
the ditch order shall become effective when issued.
48 Del. Laws, c. 151, § 27; 7 Del. C. 1953, § 4137; 50 Del. Laws, c. 276, § 19; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 34-36.;
§ 4138. Right to jury trial; procedure.
When objections to the report of the board of ditch commissioners are filed in writing with the Superior Court and when the
party filing feels aggrieved by the report of the board of ditch commissioners, such party may apply to the Superior Court,
within 30 days after the issuance of the ditch order, for an order in the nature of a writ of inquiry to ascertain by the
verdict of a jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which
will result to the lands of such person from the construction of the proposed tax ditch.
48 Del. Laws, c. 151, § 28; 7 Del. C. 1953, § 4138; 50 Del. Laws, c. 276, § 20.;
§ 4139. Defense of contested ditch orders; Attorney General.
If the ditch order is contested, the board of ditch commissioners shall defend the order, and in conducting its defense, the
board shall be represented by the Attorney General of the State.
48 Del. Laws, c. 151, § 29; 7 Del. C. 1953, § 4139.;
§ 4140. Notice of final action on ditch order.
When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has
expired, the Prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation
district accordingly, and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 30; 7 Del. C. 1953, § 4140; 50 Del. Laws, c. 276, § 21; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 17.;
§ 4141. Permanent court record [Affected by contingent amendment. See version of this section which follows.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued. It shall not be removed from that office except in cases where an emergency
so requires. The Prothonotary shall make such docket entries of proceedings as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22.;
§ 4141. Permanent court record [Amendment contingent upon procedures being placed in each county's recorder of deeds office;
see 74 Del. Laws, c. 386, § 4.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume
in the office of the recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders
shall be charged by the ffice of the recorder of deeds after the effective date of this legislation. It shall not be removed
from that office except in cases where an emergency so requires. The Prothonotary shall make such docket entries of proceedings
as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22; 74 Del. Laws, c. 386, § 1.;
§ 4142. Employment of private engineer by landowners.
If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved
is located determines that the formation of a tax ditch is practicable and feasible and is in the interest of the public health,
safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel
of their selection to assist the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 32; 7 Del. C. 1953, § 4142; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 37; 77 Del. Laws, c. 430, § 18.;
§ 4143. Exclusive procedure for determination of damages.
The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the
formation of a tax ditch shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable
to proceedings to organize a tax ditch under this chapter.
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES
Subchapter III. Formation of Tax Ditch; Procedure
§ 4116. Nature of a tax ditch.
A tax ditch organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate
and politic, exercising public powers.
48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4116.;
§ 4117. Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.
(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters
of their lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county
in which all or the major portion of the area involved is located, through the board of supervisors of the soil conservation
district of the county.
(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of
such petitions.
48 Del. Laws, c. 151, § 7; 7 Del. C. 1953, § 4117; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 10, 11; 77 Del. Laws, c. 430, §§ 8, 9.;
§ 4118. Form of petition.
A petition for the formation of a tax ditch shall be in the following
form:
PETITION
To the Superior Court of ........ County through the Board of Supervisors of
the Soil Conservation District of ......... County:
Whereas the undersigned (is) (are) the owner(s) of certain lands subject to
overflow or in need of water management situated in .......... Hundred(s)
.......... County (Counties), and the State of Delaware, said lands being more
particularly described as follows ..........................................................................
Whereas the draining and the prevention of flooding of said lands, and/or the
management of water for resource conservation on said lands would be a public
benefit and conducive to the public health, safety and welfare; and
Whereas the undersigned desire that a Tax Ditch be formed under the provisions
of Chapter 41, Title 7 of the Delaware Code, said Tax Ditch to be known as
............. Tax Ditch;
The undersigned therefore request the Soil Conservation District of
.......... County to make the investigation required under the above cited
chapter and, if the findings thereon be favorable, to file this petition in
the office of the Prothonotary of ............. County so that the Superior
Court of said County may take the necessary steps required by law to issue an
order establishing ............ Ditch.
Dated this ........ day of ........., ........ at ............, Delaware.
date month year
(Space for Signatures)
(Space for Signatures)
48 Del. Laws, c. 151, § 8; 7 Del. C. 1953, § 4118; 70 Del. Laws, c. 246, §§ 12, 13.;
§ 4119. Name of tax ditch.
The name of any tax ditch established under this chapter shall not be the same as the name of any existing drainage organization
within the same county.
48 Del. Laws, c. 151, § 71; 7 Del. C. 1953, § 4119.;
§ 4120. Deposit upon filing of petitions for tax ditch.
(a) The county soil conservation district shall require that a specified sum be deposited with it by the petitioners before
the petition is filed in the office of the Prothonotary to cover filing fees, mailing and other necessary expenses. The amount
of the deposit shall be determined by the county soil conservation district and may vary according to the size of the area
involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the district
shall require an additional deposit as soon as the need for such becomes evident.
(b) The district shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon
completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the
first moneys collected by the tax ditch, all expenses of formation charged to them by the county soil conservation district.
(c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees,
mailing and other necessary expenses incurred in the investigation and formation of a tax ditch.
48 Del. Laws, c. 151, §§ 14, 15; 7 Del. C. 1953, § 4120.;
§ 4121. Duties of county soil conservation district upon receipt of petition.
The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a
tax ditch, determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed.
If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division
of Watershed Stewardship, and by virtue of such action shall have made available to it the services of the Department of Natural
Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch.
48 Del. Laws, c. 151, § 9; 7 Del. C. 1953, § 4121; 57 Del. Laws, c. 739, § 183; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 14; 77 Del. Laws, c. 430, § 10.;
§ 4122. Investigation; hearing.
The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in
order to ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other
information to assist the district to determine whether the formation of the tax ditch is practicable and feasible and is
in the interest of the public health, safety and welfare. The district may hold such hearings as it deems necessary in order
to assist it in making such determination.
48 Del. Laws, c. 151, § 10; 7 Del. C. 1953, § 4122; 50 Del. Laws, c. 276, § 7; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 11.;
§ 4123. Report of investigation by Division of Watershed Stewardship.
The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district
together with its recommendations.
48 Del. Laws, c. 151, § 11; 7 Del. C. 1953, § 4123; 57 Del. Laws, c. 739, § 184; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 15; 77 Del. Laws, c. 430, § 12.;
§ 4124. Determination by county soil conservation district.
The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether
the formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and
welfare.
48 Del. Laws, c. 151, § 12; 7 Del. C. 1953, § 4124.;
§ 4125. Filing of petition and report; action by district when formation is found to be not practicable and feasible.
(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible
and in the interest of the public health, safety and welfare, it shall file the petition in the office of the Prothonotary
of the county in which all or the major portion of the land involved is located, together with the report of the Division
of Watershed Stewardship and such other relevant information as the district deems appropriate.
(b) Where the county soil conservation district determines that the formation of the proposed tax ditch is not practicable
and feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners
involved, and a new petition for the formation of that tax ditch may not be refiled for a period of 1 year from the date of
said notice.
48 Del. Laws, c. 151, § 13; 7 Del. C. 1953, § 4125; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 16; 77 Del. Laws, c. 430, § 13.;
§ 4126. Determinations to be made by board of ditch commissioners.
(a) Upon the filing of a petition for the formation of a tax ditch in the office of the Prothonotary of a county, the board
of ditch commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof,
go upon the lands that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required
drainage ditches; the approximate sizes, locations and specifications for required dikes, levees, structures and other necessary
works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax
ditch; the exterior boundaries of the tax ditch; the approximate boundaries of each farm, parcel or piece of land within the
tax ditch; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax ditch works
of improvement; the damages to lands, if any, which will result from the construction of the tax ditch; and an equitable basis,
considering relative benefits to each landowner, for the distribution of costs. The board of ditch commissioners shall obtain
from the county soil conservation district such assistance and information as is needed in making the required determinations.
(b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of
the county soil conservation district and the Division of Watershed Stewardship, (1) jointly make the determinations regularly
assigned to the board of ditch commissioners in subsection (a) of this section and in § 4127 of this title, and (2) prepare
the assessment list required by § 4129 of this title, and (3) supply any additional data necessary to complete the report
of the board of ditch commissioners required by § 4130 of this title and (4) personally sign a statement to the effect that
they approve the formation of the tax ditch, the board of ditch commissioners shall prepare their report from said determinations
and such data without going upon the lands involved.
48 Del. Laws, c. 151, § 16; 7 Del. C. 1953, § 4126; 50 Del. Laws, c. 276, § 9; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 17-22; 77 Del. Laws, c. 430, § 14.;
§ 4127. Existing works of improvement; compensation for work done thereon.
The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited
to ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for
work previously done by them on such works of improvement.
48 Del. Laws, c. 151, § 17; 7 Del. C. 1953, § 4127; 50 Del. Laws, c. 276, § 10.;
§ 4128. Factors in determination of cost.
(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include,
among other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages,
if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously
constructed and deemed adequate under § 4127 of this title.
(b) The estimated cost of interest which will develop if the tax ditch borrows money to finance construction and the estimated
cost of annual maintenance shall not be included in the total cost of the proposed tax ditch works of improvement.
48 Del. Laws, c. 151, § 18; 7 Del. C. 1953, § 4128; 50 Del. Laws, c. 276, § 11.;
§ 4129. Assessment list.
After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare
an assessment list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed
tax ditch, together with addresses and descriptions of those properties as currently recorded by the board of assessment of
the county. The list shall also show, for each property, that portion, expressed in acres, which is within the watershed or
drainage area. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown.
The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be
equal to or greater than the total cost of the proposed tax ditch works of improvement. The assessment list, as modified by
the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.
48 Del. Laws, c. 151, § 19; 7 Del. C. 1953, § 4129; 50 Del. Laws, c. 276, § 12.;
§ 4130. Proposed report of board of ditch commissioners.
The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report
containing the following determinations and information:
(1) The name of the proposed tax ditch;
(2) The hundred and the county in which the proposed tax ditch is situated;
(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:
a. The main ditch, all prongs, all subprongs and other divisions of the proposed tax ditch;
b. All dikes, levees, structures and other works of improvement of the proposed tax ditch;
c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close
to any part of the proposed tax ditch;
d. The exterior boundaries of the tax ditch;
e. The approximate boundaries of each farm, parcel or piece of land within the proposed tax ditch, together with the identification
of each farm, parcel or piece of land by name or code number;
f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the
tax ditch for construction and maintenance operations;
(4) The estimated total cost of the proposed tax ditch works of improvement;
(5) The assessment list required under § 4129 of this title;
(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners,
and other pertinent information;
(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed
and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is
entitled; and factors which influenced the determination of the damages awarded and compensation to be paid;
(8) The number of ditch managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed
tax ditch;
(9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities
to be assumed by the proposed tax ditch.
48 Del. Laws, c. 151, § 20; 7 Del. C. 1953, § 4130; 50 Del. Laws, c. 276, § 13; 56 Del. Laws, c. 312, § 3; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 23, 24; 77 Del. Laws, c. 430, § 15.;
§ 4131. Notice of hearing on establishment of tax ditch.
Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all
owners of property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment
of said tax ditch to be held in the county in which all or the major portion of the lands involved is located. The notice
shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It
shall also state that the purpose of the hearing is to consider the formation of a tax ditch which may affect the lands of
the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax ditch. In
addition, the notice shall state the place where a copy of the above proposed report of the board of ditch commissioners will
be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.
48 Del. Laws, c. 151, § 21; 7 Del. C. 1953, § 4131; 50 Del. Laws, c. 276, § 14; 70 Del. Laws, c. 246, §§ 25-27.;
§ 4132. Hearing; adoption of proposed report; right to adjourn hearing; referendum.
At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed
Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and
objections to the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes
in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare
it final. If, however, as a result of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the
hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at
the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to
an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply. At
the conclusion of the hearing, a referendum shall be held under the supervision of the board of ditch commissioners and the
Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast a ballot for or against
the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners. Each landowner
shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board
of ditch commissioners.
48 Del. Laws, c. 151, § 22; 7 Del. C. 1953, § 4132; 50 Del. Laws, c. 276, § 15; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 28, 29; 77 Del. Laws, c. 430, § 16.;
§ 4133. Contents of report; filing.
After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners
shall file the original and 2 copies of its final report in the office of the Prothonotary of the county in which all or the
major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum
and the place where and the time when it was held. The board of ditch commissioners shall also prepare and attach to the report
a statement showing:
(1) Whether the board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law;
(2) Whether the proposed tax ditch is practicable and feasible and in the interest of the public health, safety and welfare;
(3) Whether in laying out the tax ditch, the lands of every landowner assessed are directly or indirectly affected by some
part of the proposed tax ditch;
(4) Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report
and the reasons therefor;
(5) Whether, in the opinion of the board of ditch commissioners, the benefits that will result from the construction of the
proposed tax ditch will exceed the total cost;
(6) Any other recommendations or information which the board of ditch commissioners deems pertinent.
48 Del. Laws, c. 151, § 23; 7 Del. C. 1953, § 4133; 50 Del. Laws, c. 276, § 16; 70 Del. Laws, c. 246, §§ 30, 31.;
§ 4134. Signing of commissioners' report; dissent.
The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed
by all of the commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the
reasons for his or her dissent.
48 Del. Laws, c. 151, § 24; 7 Del. C. 1953, § 4134; 70 Del. Laws, c. 186, § 1.;
§ 4135. Waiving of commissioners' hearing and referendum.
In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of
the board of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall
not hold a hearing and referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131
of this title, but they shall prepare the statement required and file their report, pursuant to § 4133 of this title, without
a certificate of referendum.
48 Del. Laws, c. 151, § 25; 7 Del. C. 1953, § 4135; 50 Del. Laws, c. 276, § 17.;
§ 4136. Action by Superior Court; notice of final hearing.
(a) After the report and statement of the board of ditch commissioners have been filed in the office of the Prothonotary of
the appropriate county, they shall be carefully reviewed by the Superior Court of the county.
(b) If the report of a majority of the board of ditch commissioners is opposed to the formation of the proposed tax ditch,
or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation
of the tax ditch, or if such report shows that the total cost of the construction of the tax ditch will exceed the benefits
that will result therefrom, then the Superior Court shall issue an order denying the petition for the formation of the tax
ditch.
(c) If the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch,
and if the statement attached to said report indicates that the total benefits that will result from the tax ditch will exceed
the total cost of the proposed tax ditch works of improvement, and if the certificate stating the results of the referendum
shows that a majority of all votes cast were in favor of the formation of the tax ditch, then the Superior Court shall set
a date for the final hearing on the petition and shall direct the Prothonotary to give notice of the hearing by publication
in a newspaper of general circulation in each county in which any of the lands involved are located and by posting a written
or printed notice on the door of the courthouse of each such county, such publication and posting to be made not less than
15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners involved by 1st-class
mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report of the board
of ditch commissioners is filed in the office of the Prothonotary of the appropriate county it shall be open to inspection
by any interested person.
(d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the
report of the board of ditch commissioners and that they favor the formation of the tax ditch, and if the report of a majority
of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached
to the report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed
tax ditch works of improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall
confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, the order to become
effective immediately, and to be known as the ditch order. The confirmed report shall be considered a part of the ditch order.
48 Del. Laws, c. 151, § 26; 7 Del. C. 1953, § 4136; 50 Del. Laws, c. 276, § 18; 67 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 246, §§ 32, 33.;
§ 4137. Final hearing; ditch order.
At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an
objection in writing to the report of the board of ditch commissioners. The Superior Court shall review the report of the
board of ditch commissioners and any objections filed thereto, and make, in consultation with the ditch commissioners, such
changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall
not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to
be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch. If the conditions set
forth in § 4136(c) of this title, still exist after the objections have been considered and the necessary changes have been
made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and issue an order granting
the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed report
shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court
the ditch order shall become effective when issued.
48 Del. Laws, c. 151, § 27; 7 Del. C. 1953, § 4137; 50 Del. Laws, c. 276, § 19; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 34-36.;
§ 4138. Right to jury trial; procedure.
When objections to the report of the board of ditch commissioners are filed in writing with the Superior Court and when the
party filing feels aggrieved by the report of the board of ditch commissioners, such party may apply to the Superior Court,
within 30 days after the issuance of the ditch order, for an order in the nature of a writ of inquiry to ascertain by the
verdict of a jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which
will result to the lands of such person from the construction of the proposed tax ditch.
48 Del. Laws, c. 151, § 28; 7 Del. C. 1953, § 4138; 50 Del. Laws, c. 276, § 20.;
§ 4139. Defense of contested ditch orders; Attorney General.
If the ditch order is contested, the board of ditch commissioners shall defend the order, and in conducting its defense, the
board shall be represented by the Attorney General of the State.
48 Del. Laws, c. 151, § 29; 7 Del. C. 1953, § 4139.;
§ 4140. Notice of final action on ditch order.
When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has
expired, the Prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation
district accordingly, and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 30; 7 Del. C. 1953, § 4140; 50 Del. Laws, c. 276, § 21; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 17.;
§ 4141. Permanent court record [Affected by contingent amendment. See version of this section which follows.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued. It shall not be removed from that office except in cases where an emergency
so requires. The Prothonotary shall make such docket entries of proceedings as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22.;
§ 4141. Permanent court record [Amendment contingent upon procedures being placed in each county's recorder of deeds office;
see 74 Del. Laws, c. 386, § 4.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume
in the office of the recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders
shall be charged by the ffice of the recorder of deeds after the effective date of this legislation. It shall not be removed
from that office except in cases where an emergency so requires. The Prothonotary shall make such docket entries of proceedings
as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22; 74 Del. Laws, c. 386, § 1.;
§ 4142. Employment of private engineer by landowners.
If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved
is located determines that the formation of a tax ditch is practicable and feasible and is in the interest of the public health,
safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel
of their selection to assist the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 32; 7 Del. C. 1953, § 4142; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 37; 77 Del. Laws, c. 430, § 18.;
§ 4143. Exclusive procedure for determination of damages.
The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the
formation of a tax ditch shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable
to proceedings to organize a tax ditch under this chapter.
Agricultural and Soil Conservation; Drainage and Reclamation of Lowlands
CHAPTER 41. DRAINAGE OF LANDS AND MANAGEMENT OF WATERS; TAX DITCHES
Subchapter III. Formation of Tax Ditch; Procedure
§ 4116. Nature of a tax ditch.
A tax ditch organized under this chapter shall constitute a governmental subdivision of this State and a public body, corporate
and politic, exercising public powers.
48 Del. Laws, c. 151, § 43; 7 Del. C. 1953, § 4116.;
§ 4117. Petition for formation of a tax ditch; assistance of Division of Watershed Stewardship.
(a) Whenever 1 or more of the owners of any lands desire their lands to be drained or protected from flooding, or the waters
of their lands to be managed they may present a petition for the formation of a tax ditch to the Superior Court of the county
in which all or the major portion of the area involved is located, through the board of supervisors of the soil conservation
district of the county.
(b) The services of the Division of Watershed Stewardship shall be available to assist the landowners in the preparation of
such petitions.
48 Del. Laws, c. 151, § 7; 7 Del. C. 1953, § 4117; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 10, 11; 77 Del. Laws, c. 430, §§ 8, 9.;
§ 4118. Form of petition.
A petition for the formation of a tax ditch shall be in the following
form:
PETITION
To the Superior Court of ........ County through the Board of Supervisors of
the Soil Conservation District of ......... County:
Whereas the undersigned (is) (are) the owner(s) of certain lands subject to
overflow or in need of water management situated in .......... Hundred(s)
.......... County (Counties), and the State of Delaware, said lands being more
particularly described as follows ..........................................................................
Whereas the draining and the prevention of flooding of said lands, and/or the
management of water for resource conservation on said lands would be a public
benefit and conducive to the public health, safety and welfare; and
Whereas the undersigned desire that a Tax Ditch be formed under the provisions
of Chapter 41, Title 7 of the Delaware Code, said Tax Ditch to be known as
............. Tax Ditch;
The undersigned therefore request the Soil Conservation District of
.......... County to make the investigation required under the above cited
chapter and, if the findings thereon be favorable, to file this petition in
the office of the Prothonotary of ............. County so that the Superior
Court of said County may take the necessary steps required by law to issue an
order establishing ............ Ditch.
Dated this ........ day of ........., ........ at ............, Delaware.
date month year
(Space for Signatures)
(Space for Signatures)
48 Del. Laws, c. 151, § 8; 7 Del. C. 1953, § 4118; 70 Del. Laws, c. 246, §§ 12, 13.;
§ 4119. Name of tax ditch.
The name of any tax ditch established under this chapter shall not be the same as the name of any existing drainage organization
within the same county.
48 Del. Laws, c. 151, § 71; 7 Del. C. 1953, § 4119.;
§ 4120. Deposit upon filing of petitions for tax ditch.
(a) The county soil conservation district shall require that a specified sum be deposited with it by the petitioners before
the petition is filed in the office of the Prothonotary to cover filing fees, mailing and other necessary expenses. The amount
of the deposit shall be determined by the county soil conservation district and may vary according to the size of the area
involved, the complexity of the problem, and other pertinent factors. If the original deposit is not sufficient, the district
shall require an additional deposit as soon as the need for such becomes evident.
(b) The district shall keep an account of such deposits and shall return any unused portion thereof to the petitioners upon
completion of final action by the Superior Court. When such action is favorable, the petitioners shall be repaid, out of the
first moneys collected by the tax ditch, all expenses of formation charged to them by the county soil conservation district.
(c) From the funds deposited with it pursuant to this section, the county soil conservation district shall pay filing fees,
mailing and other necessary expenses incurred in the investigation and formation of a tax ditch.
48 Del. Laws, c. 151, §§ 14, 15; 7 Del. C. 1953, § 4120.;
§ 4121. Duties of county soil conservation district upon receipt of petition.
The board of supervisors of the county soil conservation district shall, upon receipt of a petition for the formation of a
tax ditch, determine whether the petition is in the form set forth in § 4118 of this title and has been properly executed.
If the petition is in the prescribed form and has been properly executed, the board shall immediately notify the Division
of Watershed Stewardship, and by virtue of such action shall have made available to it the services of the Department of Natural
Resources and Environmental Control to assist it with the investigation concerning the possible formation of the tax ditch.
48 Del. Laws, c. 151, § 9; 7 Del. C. 1953, § 4121; 57 Del. Laws, c. 739, § 183; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 14; 77 Del. Laws, c. 430, § 10.;
§ 4122. Investigation; hearing.
The county soil conservation district shall cause an investigation to be made by the Division of Watershed Stewardship in
order to ascertain the general location and approximate watershed boundaries of the proposed tax ditch, and to obtain other
information to assist the district to determine whether the formation of the tax ditch is practicable and feasible and is
in the interest of the public health, safety and welfare. The district may hold such hearings as it deems necessary in order
to assist it in making such determination.
48 Del. Laws, c. 151, § 10; 7 Del. C. 1953, § 4122; 50 Del. Laws, c. 276, § 7; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 11.;
§ 4123. Report of investigation by Division of Watershed Stewardship.
The Division of Watershed Stewardship shall make a formal report of its investigation to the county soil conservation district
together with its recommendations.
48 Del. Laws, c. 151, § 11; 7 Del. C. 1953, § 4123; 57 Del. Laws, c. 739, § 184; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 15; 77 Del. Laws, c. 430, § 12.;
§ 4124. Determination by county soil conservation district.
The county soil conservation district shall, upon the basis of the information obtained under this chapter, determine whether
the formation of the proposed tax ditch is practicable and feasible and is in the interest of the public health, safety and
welfare.
48 Del. Laws, c. 151, § 12; 7 Del. C. 1953, § 4124.;
§ 4125. Filing of petition and report; action by district when formation is found to be not practicable and feasible.
(a) If the county soil conservation district determines that the formation of the proposed tax ditch is practicable, feasible
and in the interest of the public health, safety and welfare, it shall file the petition in the office of the Prothonotary
of the county in which all or the major portion of the land involved is located, together with the report of the Division
of Watershed Stewardship and such other relevant information as the district deems appropriate.
(b) Where the county soil conservation district determines that the formation of the proposed tax ditch is not practicable
and feasible or is not in the interest of the public health, safety and welfare, it shall so notify all of the petitioners
involved, and a new petition for the formation of that tax ditch may not be refiled for a period of 1 year from the date of
said notice.
48 Del. Laws, c. 151, § 13; 7 Del. C. 1953, § 4125; 50 Del. Laws, c. 276, § 8; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 16; 77 Del. Laws, c. 430, § 13.;
§ 4126. Determinations to be made by board of ditch commissioners.
(a) Upon the filing of a petition for the formation of a tax ditch in the office of the Prothonotary of a county, the board
of ditch commissioners of such county, acting as officers of the Court, shall, at the direction of the resident judge thereof,
go upon the lands that may be included in the tax ditch and determine the approximate sizes, grades and locations of the required
drainage ditches; the approximate sizes, locations and specifications for required dikes, levees, structures and other necessary
works of improvement; the location of public roads and railroads, and public utility installations within the proposed tax
ditch; the exterior boundaries of the tax ditch; the approximate boundaries of each farm, parcel or piece of land within the
tax ditch; the location and extent of needed permanent rights-of-way; the estimated total cost of all required tax ditch works
of improvement; the damages to lands, if any, which will result from the construction of the tax ditch; and an equitable basis,
considering relative benefits to each landowner, for the distribution of costs. The board of ditch commissioners shall obtain
from the county soil conservation district such assistance and information as is needed in making the required determinations.
(b) When all of the landowners involved, with the approval of the board of ditch commissioners and with the cooperation of
the county soil conservation district and the Division of Watershed Stewardship, (1) jointly make the determinations regularly
assigned to the board of ditch commissioners in subsection (a) of this section and in § 4127 of this title, and (2) prepare
the assessment list required by § 4129 of this title, and (3) supply any additional data necessary to complete the report
of the board of ditch commissioners required by § 4130 of this title and (4) personally sign a statement to the effect that
they approve the formation of the tax ditch, the board of ditch commissioners shall prepare their report from said determinations
and such data without going upon the lands involved.
48 Del. Laws, c. 151, § 16; 7 Del. C. 1953, § 4126; 50 Del. Laws, c. 276, § 9; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 17-22; 77 Del. Laws, c. 430, § 14.;
§ 4127. Existing works of improvement; compensation for work done thereon.
The board of ditch commissioners may deem adequate any works of improvement already constructed, including but not limited
to ditches and structures and may incorporate these in the tax ditch, and may allow a fair compensation to landowners for
work previously done by them on such works of improvement.
48 Del. Laws, c. 151, § 17; 7 Del. C. 1953, § 4127; 50 Del. Laws, c. 276, § 10.;
§ 4128. Factors in determination of cost.
(a) In determining the total cost of the proposed tax ditch works of improvement, the board of ditch commissioners shall include,
among other things, the estimated costs of construction, the estimated cost of forming the tax ditch, the amount of damages,
if any, awarded to landowners and the amount of compensation, if any, to be paid to landowners for works of improvement previously
constructed and deemed adequate under § 4127 of this title.
(b) The estimated cost of interest which will develop if the tax ditch borrows money to finance construction and the estimated
cost of annual maintenance shall not be included in the total cost of the proposed tax ditch works of improvement.
48 Del. Laws, c. 151, § 18; 7 Del. C. 1953, § 4128; 50 Del. Laws, c. 276, § 11.;
§ 4129. Assessment list.
After determining the basis for distribution of costs among the landowners, the board of ditch commissioners shall prepare
an assessment list which shall show the names of all owners of property, wholly or partly within the watershed of the proposed
tax ditch, together with addresses and descriptions of those properties as currently recorded by the board of assessment of
the county. The list shall also show, for each property, that portion, expressed in acres, which is within the watershed or
drainage area. The cost-sharing or assessment base, expressed in dollars, for each of said properties shall also be shown.
The sum of the individual property assessment bases shall be termed the total assessment base which in all cases shall be
equal to or greater than the total cost of the proposed tax ditch works of improvement. The assessment list, as modified by
the ditch order, described in § 4137 of this title, shall be the basis for all taxes levied under this chapter.
48 Del. Laws, c. 151, § 19; 7 Del. C. 1953, § 4129; 50 Del. Laws, c. 276, § 12.;
§ 4130. Proposed report of board of ditch commissioners.
The board of ditch commissioners, with the assistance of the Division of Watershed Stewardship, shall prepare a proposed report
containing the following determinations and information:
(1) The name of the proposed tax ditch;
(2) The hundred and the county in which the proposed tax ditch is situated;
(3) A map, drawing or aerial photograph, to a suitable scale, on which the following is shown:
a. The main ditch, all prongs, all subprongs and other divisions of the proposed tax ditch;
b. All dikes, levees, structures and other works of improvement of the proposed tax ditch;
c. All railroads, public highways and all public utility installations near the points where such reach, cross or pass close
to any part of the proposed tax ditch;
d. The exterior boundaries of the tax ditch;
e. The approximate boundaries of each farm, parcel or piece of land within the proposed tax ditch, together with the identification
of each farm, parcel or piece of land by name or code number;
f. The location and extent of rights-of-way, including overhead and underground clearances where necessary, assigned to the
tax ditch for construction and maintenance operations;
(4) The estimated total cost of the proposed tax ditch works of improvement;
(5) The assessment list required under § 4129 of this title;
(6) Factors which influenced the determination of relative benefits and the basis for distribution of costs among the landowners,
and other pertinent information;
(7) The names of all landowners awarded damages or to be paid compensation for works of improvement previously constructed
and deemed adequate under § 4127 of this title; and the amount of damages or compensation to which each such landowner is
entitled; and factors which influenced the determination of the damages awarded and compensation to be paid;
(8) The number of ditch managers, not less than 2 nor more than 5, required to conduct the business affairs of the proposed
tax ditch;
(9) In the case of a previously existent drainage organization, the amount of present assets to be turned over to, or liabilities
to be assumed by the proposed tax ditch.
48 Del. Laws, c. 151, § 20; 7 Del. C. 1953, § 4130; 50 Del. Laws, c. 276, § 13; 56 Del. Laws, c. 312, § 3; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, §§ 23, 24; 77 Del. Laws, c. 430, § 15.;
§ 4131. Notice of hearing on establishment of tax ditch.
Upon completion of the proposed report required by § 4130 of this title, the board of ditch commissioners shall notify all
owners of property, wholly or partly within the watershed of the proposed tax ditch, of a hearing concerning the establishment
of said tax ditch to be held in the county in which all or the major portion of the lands involved is located. The notice
shall be mailed by 1st-class mail at least 20 days prior to the hearing and shall designate the time and place thereof. It
shall also state that the purpose of the hearing is to consider the formation of a tax ditch which may affect the lands of
the person notified and to hold a referendum among the affected landowners concerning the establishment of a tax ditch. In
addition, the notice shall state the place where a copy of the above proposed report of the board of ditch commissioners will
be open to inspection for at least 5 days, excepting Saturday and Sunday, prior to the hearing date.
48 Del. Laws, c. 151, § 21; 7 Del. C. 1953, § 4131; 50 Del. Laws, c. 276, § 14; 70 Del. Laws, c. 246, §§ 25-27.;
§ 4132. Hearing; adoption of proposed report; right to adjourn hearing; referendum.
At the time and place designated in the notice, the board of ditch commissioners, with the assistance of the Division of Watershed
Stewardship, shall hold a hearing at which all persons interested shall have an opportunity to express their opinions on and
objections to the proposed report required by § 4130 of this title. The board of ditch commissioners shall make such changes
in the proposed report as it deems warranted from evidence presented at the hearing, and shall then adopt the report and declare
it final. If, however, as a result of the hearing, the board of ditch commissioners deems it advisable, it may adjourn the
hearing in order to enable it to reexamine and modify its report in the light of the opinions and objections expressed at
the hearing. The hearing may be adjourned to a fixed future date with no additional notification required or adjourned to
an unspecified future date for which the notification and display procedures of § 4131 of this title will again apply. At
the conclusion of the hearing, a referendum shall be held under the supervision of the board of ditch commissioners and the
Division of Watershed Stewardship. The referendum shall afford each landowner the opportunity to cast a ballot for or against
the formation of the proposed tax ditch in accordance with the final report of the board of ditch commissioners. Each landowner
shall be entitled to the same number of votes as the number of dollars shown as the assessment base for the lands by the board
of ditch commissioners.
48 Del. Laws, c. 151, § 22; 7 Del. C. 1953, § 4132; 50 Del. Laws, c. 276, § 15; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 28, 29; 77 Del. Laws, c. 430, § 16.;
§ 4133. Contents of report; filing.
After holding the hearing and supervising the referendum provided for in § 4132 of this title, the board of ditch commissioners
shall file the original and 2 copies of its final report in the office of the Prothonotary of the county in which all or the
major portion of the lands involved is located, and shall attach to the report a certificate stating the results of the referendum
and the place where and the time when it was held. The board of ditch commissioners shall also prepare and attach to the report
a statement showing:
(1) Whether the board of ditch commissioners has fully discharged the duties assigned to it as prescribed by law;
(2) Whether the proposed tax ditch is practicable and feasible and in the interest of the public health, safety and welfare;
(3) Whether in laying out the tax ditch, the lands of every landowner assessed are directly or indirectly affected by some
part of the proposed tax ditch;
(4) Any objections made to the report of the board of ditch commissioners which did not warrant further changes in the report
and the reasons therefor;
(5) Whether, in the opinion of the board of ditch commissioners, the benefits that will result from the construction of the
proposed tax ditch will exceed the total cost;
(6) Any other recommendations or information which the board of ditch commissioners deems pertinent.
48 Del. Laws, c. 151, § 23; 7 Del. C. 1953, § 4133; 50 Del. Laws, c. 276, § 16; 70 Del. Laws, c. 246, §§ 30, 31.;
§ 4134. Signing of commissioners' report; dissent.
The report of the board of ditch commissioners, including the statement required by § 4133 of this title, shall be signed
by all of the commissioners concurring therein. Any ditch commissioner who dissents therefrom shall attach to the report the
reasons for his or her dissent.
48 Del. Laws, c. 151, § 24; 7 Del. C. 1953, § 4134; 70 Del. Laws, c. 186, § 1.;
§ 4135. Waiving of commissioners' hearing and referendum.
In those cases, when all of the landowners involved, indicate by signed statement that they are familiar with the report of
the board of ditch commissioners and that they favor the formation of the tax ditch, the board of ditch commissioners shall
not hold a hearing and referendum, pursuant to § 4132 of this title, nor shall they give notice thereof as pursuant to § 4131
of this title, but they shall prepare the statement required and file their report, pursuant to § 4133 of this title, without
a certificate of referendum.
48 Del. Laws, c. 151, § 25; 7 Del. C. 1953, § 4135; 50 Del. Laws, c. 276, § 17.;
§ 4136. Action by Superior Court; notice of final hearing.
(a) After the report and statement of the board of ditch commissioners have been filed in the office of the Prothonotary of
the appropriate county, they shall be carefully reviewed by the Superior Court of the county.
(b) If the report of a majority of the board of ditch commissioners is opposed to the formation of the proposed tax ditch,
or if the certificate stating the results of the referendum shows that a majority of all votes cast were opposed to the formation
of the tax ditch, or if such report shows that the total cost of the construction of the tax ditch will exceed the benefits
that will result therefrom, then the Superior Court shall issue an order denying the petition for the formation of the tax
ditch.
(c) If the report of a majority of the board of ditch commissioners is in favor of the formation of the proposed tax ditch,
and if the statement attached to said report indicates that the total benefits that will result from the tax ditch will exceed
the total cost of the proposed tax ditch works of improvement, and if the certificate stating the results of the referendum
shows that a majority of all votes cast were in favor of the formation of the tax ditch, then the Superior Court shall set
a date for the final hearing on the petition and shall direct the Prothonotary to give notice of the hearing by publication
in a newspaper of general circulation in each county in which any of the lands involved are located and by posting a written
or printed notice on the door of the courthouse of each such county, such publication and posting to be made not less than
15 days before the time of the final hearing. Notice of the final hearing shall also be given to landowners involved by 1st-class
mail. This notice shall be mailed not less than 15 days before the time of the hearing. From the time the report of the board
of ditch commissioners is filed in the office of the Prothonotary of the appropriate county it shall be open to inspection
by any interested person.
(d) In those cases, when all of the landowners involved have indicated by signed statement that they are familiar with the
report of the board of ditch commissioners and that they favor the formation of the tax ditch, and if the report of a majority
of the board of ditch commissioners is in favor of the formation of the proposed tax ditch, and if the statement attached
to the report indicates that the total benefits that will result from the tax ditch will exceed the total cost of the proposed
tax ditch works of improvement, then the Superior Court shall not hold a final hearing, nor give notice thereof, but shall
confirm the report and issue an order granting the petition for the formation of the proposed tax ditch, the order to become
effective immediately, and to be known as the ditch order. The confirmed report shall be considered a part of the ditch order.
48 Del. Laws, c. 151, § 26; 7 Del. C. 1953, § 4136; 50 Del. Laws, c. 276, § 18; 67 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 246, §§ 32, 33.;
§ 4137. Final hearing; ditch order.
At least 10 days prior to the date set for the final hearing before the Superior Court, any interested person may file an
objection in writing to the report of the board of ditch commissioners. The Superior Court shall review the report of the
board of ditch commissioners and any objections filed thereto, and make, in consultation with the ditch commissioners, such
changes as are necessary to render substantial and equal justice to all interested persons. Damages to any 1 landowner shall
not be grounds for denying the petition, but may be used to adjust the assessment base of that property or the damages to
be paid to that landowner and shall be considered as part of the total cost of the proposed tax ditch. If the conditions set
forth in § 4136(c) of this title, still exist after the objections have been considered and the necessary changes have been
made in the report of the board of ditch commissioners, the Superior Court shall confirm the report and issue an order granting
the petition for the formation of the proposed tax ditch, said order to be known as the ditch order. The confirmed report
shall be considered a part of said ditch order. If no objections are presented at the final hearing before the Superior Court
the ditch order shall become effective when issued.
48 Del. Laws, c. 151, § 27; 7 Del. C. 1953, § 4137; 50 Del. Laws, c. 276, § 19; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 246, §§ 34-36.;
§ 4138. Right to jury trial; procedure.
When objections to the report of the board of ditch commissioners are filed in writing with the Superior Court and when the
party filing feels aggrieved by the report of the board of ditch commissioners, such party may apply to the Superior Court,
within 30 days after the issuance of the ditch order, for an order in the nature of a writ of inquiry to ascertain by the
verdict of a jury at the bar of the Court, the full and true value of the relative benefits, damages, injury or loss which
will result to the lands of such person from the construction of the proposed tax ditch.
48 Del. Laws, c. 151, § 28; 7 Del. C. 1953, § 4138; 50 Del. Laws, c. 276, § 20.;
§ 4139. Defense of contested ditch orders; Attorney General.
If the ditch order is contested, the board of ditch commissioners shall defend the order, and in conducting its defense, the
board shall be represented by the Attorney General of the State.
48 Del. Laws, c. 151, § 29; 7 Del. C. 1953, § 4139.;
§ 4140. Notice of final action on ditch order.
When the ditch order has become effective because no objection has been filed, or because the right to appeal therefrom has
expired, the Prothonotary shall notify the Division of Watershed Stewardship and the appropriate county soil conservation
district accordingly, and shall forward 2 certified copies of the ditch order to the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 30; 7 Del. C. 1953, § 4140; 50 Del. Laws, c. 276, § 21; 59 Del. Laws, c. 560, § 2; 77 Del. Laws, c. 430, § 17.;
§ 4141. Permanent court record [Affected by contingent amendment. See version of this section which follows.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued. It shall not be removed from that office except in cases where an emergency
so requires. The Prothonotary shall make such docket entries of proceedings as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22.;
§ 4141. Permanent court record [Amendment contingent upon procedures being placed in each county's recorder of deeds office;
see 74 Del. Laws, c. 386, § 4.]
The ditch order, together with any amendment thereto, shall be a permanent court record and shall be kept in the office of
the Prothonotary of the county wherein it was issued and copies of the ditch order shall be recorded in a Tax Ditch Volume
in the office of the recorder of deeds in the county where the tax ditch is located. A filing fee for all new tax ditch orders
shall be charged by the ffice of the recorder of deeds after the effective date of this legislation. It shall not be removed
from that office except in cases where an emergency so requires. The Prothonotary shall make such docket entries of proceedings
as directed by rule of court.
48 Del. Laws, c. 151, § 31; 7 Del. C. 1953, § 4141; 50 Del. Laws, c. 276, § 22; 74 Del. Laws, c. 386, § 1.;
§ 4142. Employment of private engineer by landowners.
If the board of supervisors of the county soil conservation district in which all or the major portion of the area involved
is located determines that the formation of a tax ditch is practicable and feasible and is in the interest of the public health,
safety and welfare, the interested landowner or owners may at any time thereafter employ at their expense engineering personnel
of their selection to assist the Division of Watershed Stewardship.
48 Del. Laws, c. 151, § 32; 7 Del. C. 1953, § 4142; 59 Del. Laws, c. 560, § 2; 70 Del. Laws, c. 246, § 37; 77 Del. Laws, c. 430, § 18.;
§ 4143. Exclusive procedure for determination of damages.
The determination, assessment or award of damages or other compensation to be paid to any landowner in connection with the
formation of a tax ditch shall be made under and in accordance with this chapter. Chapter 61 of Title 10 shall not be applicable
to proceedings to organize a tax ditch under this chapter.