CHAPTER 8. LAKES; CHANGES IN LEVELS
IC 14-26-8
Chapter 8. Lakes; Changes in Levels
IC 14-26-8-1
Applicability of chapter
Sec. 1. This chapter applies to lakes having an area of at least ten(10) acres.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-2
"Shoreline or water line" defined
Sec. 2. As used in this chapter, "shoreline or water line" means theline that is formed around a lake by the intersection of the water inthe lake with the adjoining land when the surface elevation of thelake is:
(1) normal;
(2) at the average level; or
(3) at the average normal level established by law.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-3
Petition for control dam or other structure to maintain lake level
Sec. 3. (a) If:
(1) at least twenty percent (20%) of the owners of land abuttingupon or within one-fourth (1/4) mile of the shoreline or waterline of a lake;
(2) the department; or
(3) the board of commissioners of a county in which a lake islocated;
desire to stabilize, raise, or establish and maintain the level of thelake by means of a control dam or other structure, diverting waterinto or away from the lake, pumping water into or out of the lake, orother means, the landowners, department, or county commissionersmay apply either separately or jointly for the construction,reconstruction, alteration, and rehabilitation of a control dam or otherstructure, the construction of pumping stations, the construction,reconstruction, repair, or recleaning of outlet or inlet ditches, or othermeans by filing a petition with the circuit or superior court of thecounty in which the greater or greatest area of the lake lies.
(b) A petition must be filed in duplicate with the clerk of thecourt.
(c) If the petition is approved by the court, attorney's fees becomea part of the total costs of the project. If the petition is dismissed, thepetitioners shall pay the attorney's fees.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-4
Contents of petition
Sec. 4. A petition must do the following:
(1) State the name of the lake. (2) State the lake's location by section, township, range, andcounty.
(3) State the lake's approximate surface area in acres.
(4) Describe the nature of the work desired, whether it is:
(A) the construction, reconstruction, alteration, orrehabilitation of a control dam;
(B) the construction of a pumping station or a diversionditch;
(C) the construction, reconstruction, repair, or recleaning ofan outlet ditch;
(D) a combination of any number of purposes permitted bythis subdivision; or
(E) another purpose.
(5) Allege that the work is practicable and of public need.
(6) State the level at which it is desired to maintain or stabilizethe lake. The level must be stated with reference to at least one(1) of the following:
(A) Sea level datum if ascertainable.
(B) A lawfully established staff gauge installed in the lakefrom which the desired water level can be readily observedby an interested or affected party.
(7) If the lake lies in more than one (1) county, show theapproximate surface area of the lake in acres that lies in eachcounty.
(8) If the lake or any part of the lake lies within a city or town,state the approximate surface area of the lake that lies withinthe city or town.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-5
Lake lying in two or more counties
Sec. 5. If the lake lies in at least two (2) counties, the surveyor ofthe county in which the greater or greatest area of the lake lies shallprepare the plans and specifications and the report required by thischapter.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-6
Bond to accompany petition
Sec. 6. If the petition is initiated by the owners of land abuttingupon or within four hundred forty (440) yards of the shoreline orwater line of the lake, the petition must be accompanied by a bondwith good and sufficient freehold sureties to be approved by the clerkof the circuit or superior court. The bond must be:
(1) payable to the state; and
(2) conditioned to pay all costs if the court denies the petition.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-7
Docketing of petition; notice of hearing Sec. 7. (a) Within ten (10) days after the filing of a petition, theclerk shall docket the petition as a cause of action pending in thecircuit or superior court. The clerk shall cause notice to be given atleast thirty (30) days before the date set for the hearing as follows:
(1) By publication one (1) time each week for two (2)consecutive weeks in not less than two (2) newspapers ofgeneral circulation published in each county in which the lakeis located. If there are not two (2) newspapers of generalcirculation published in a county, notice shall be published inone (1) newspaper of general circulation published in thecounty.
(2) By posting a written or printed notice at the door of thecourthouse in each county in which the lake lies.
(3) By sending written notice to the following:
(A) The county surveyor and county commissioners of eachcounty affected.
(B) The department.
(b) The notice must do the following:
(1) Briefly describe the location and nature of the proposedwork contained in the petition.
(2) Fix a day for the hearing on the petition.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-8
Viewers; determination
Sec. 8. Before the date set for the hearing, the names of theviewers of the proposed work described in the petition shall bedetermined as follows:
(1) The president of the board of commissioners of each countyaffected shall submit in writing to the clerk of the court inwhich the petition is filed the name of a member of the board ofcommissioners of the county who will be a viewer.
(2) The director shall submit to the clerk the name of arepresentative of the department who will serve as a viewer.
(3) The surveyor of each county affected shall serve as aviewer.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-9
Viewers; appointment and qualifications
Sec. 9. On the day set for the hearing on the form of a petition, thecourt shall appoint two (2) viewers who shall, with the viewersdesignated under section 8 of this chapter, pass upon the project asset out. The two (2) viewers appointed by the court:
(1) must be reputable freeholders;
(2) may not be qualified to sign the petitions;
(3) may not be related to an affected landowner; and
(4) must be residents of a county in which the lake lies.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-10
Restrictions on county commissioners as viewers
Sec. 10. If a petition is filed alone by owners of land abutting orwithin four hundred forty (440) yards of the shoreline or water lineof the lake, a member of the board of county commissioners may notserve as a viewer.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-11
Remonstrance or objection; time requirements
Sec. 11. The following have ten (10) days, exclusive of Sundays,from the date of the hearing on the form of a petition to file with thecourt a remonstrance or an objection to the merits of the petition,notice, or eligibility of any of the viewers:
(1) A person named in the petition.
(2) A person who owns land abutting or within one-fourth (1/4)mile of the shoreline or water line of the lake.
(3) The department.
(4) The board of commissioners of a county in which the lakelies.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-12
Remonstrance or objection; dismissal of defective petition
Sec. 12. After the ten (10) days prescribed by section 11 of thischapter have elapsed, the court shall consider each remonstrance orobjection, if any. If the court finds the petition defective, the courtshall dismiss the petition unless the petition is amended within a timefixed by the court.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-13
Replacement of disqualified viewers
Sec. 13. If at least one (1) of the viewers is disqualified, the courtshall, within ten (10) days of the date of disqualification, appoint anindividual having the qualifications required by this chapter toreplace the disqualified viewer as follows:
(1) If the surveyor is disqualified, the court may appoint aqualified registered engineer to replace the disqualifiedsurveyor.
(2) If a county commissioner is disqualified, the court shallappoint another county commissioner from the same county toreplace the disqualified commissioner.
(3) If the representative of the department is disqualified, thecourt shall appoint a new representative from the departmentselected from a list of two (2) representatives recommended bythe director.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-14 Objections to viewers; time requirements
Sec. 14. The following have ten (10) days, exclusive of Sundays,to file a written objection to the new viewers:
(1) A person named in the petition.
(2) A person who owns land abutting or within one-fourth (1/4)mile of the shoreline or water line of the lake.
(3) The department.
(4) The county in which the lake lies if a joint petition is filed.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-15
Objections to viewers; disqualification
Sec. 15. After the ten (10) days prescribed by section 14 of thischapter have elapsed, the court shall consider each objection to theviewers. If the court disqualifies a viewer who was appointed toreplace a previously disqualified viewer, the court shall make anotherappointment and continue under the same procedure until there is nofurther disqualification of viewers.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-16
Dismissal of petition
Sec. 16. If within ten (10) days, exclusive of Sundays, followingthe date of the hearing of the petition, at least fifty-one percent (51%)of the landowners abutting or within four hundred forty (440) yardsof the shoreline or water line of the lake remonstrate in writingagainst the proposed project described in the petition, the petitionshall be dismissed at the cost of the petitioners whose land abuts orlies within four hundred forty (440) yards of the shoreline or waterline of the lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-17
Referral of petition to viewers
Sec. 17. (a) If:
(1) a remonstrance has not been filed within ten (10) days of thedate of the hearing; and
(2) the court considers the petition sufficient;
the court shall make an order referring the petition to the viewers.
(b) An objection to the petition or the acting of the viewers notmade within the ten (10) days is considered waived.
(c) In the order referring the matter to the viewers, the court shallfix a time when the viewers shall meet and make a report. The clerkshall deliver to the viewers a duplicate copy of the petition and theorder.
(d) A viewer who cannot meet on the date specified by the courtmay notify the court in writing, and the court shall set another datefor the viewers to meet. If it is not possible for all of the viewers tomeet on the new day specified by the court, a majority of the viewersmay meet and view the proposed project.As added by P.L.1-1995, SEC.19.
IC 14-26-8-18
Inspection and report by viewers
Sec. 18. The viewers shall do the following:
(1) Make a personal inspection of the proposed projectdescribed in the petition.
(2) Consider whether the project is practicable and is of publicneed.
(3) File a report within ten (10) days from the time of theinspection. The opinion of the majority prevails.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-19
Viewers' findings; dismissal of petition
Sec. 19. If the viewers find that the proposed work is notpracticable and of public need:
(1) the viewers shall make a written report of the findings to thecourt; and
(2) the court shall dismiss the petition at the cost of thepetitioners who own land abutting or within one-fourth (1/4)mile of the water or shoreline of the lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-20
Viewers' findings; referral to county surveyor
Sec. 20. If the viewers find that the proposed work is practicableand of public need:
(1) the viewers shall make a written report of the finding to thecourt; and
(2) the court shall do the following:
(A) Direct the surveyor of the county in which the greatestarea of the lake lies to prepare plans and specifications forthe proposed project.
(B) Set a date for the surveyor to file the surveyor'spreliminary report with the court.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-21
Surveyor; preliminary report; plans; specifications
Sec. 21. (a) The surveyor's preliminary report must include thefollowing:
(1) Plans and specifications.
(2) Cost estimates.
(3) Damages.
(4) Assessments.
(5) Other information that is considered necessary and proper.
(b) The department may on request of the surveyor prepare theplans and specifications.
(c) The surveyor in preparing plans and specifications may, upon
the recommendation of the department, vary from the general plandescribed in the petition if necessary to carry out the purpose of thepetition, subject to final approval by the court.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-22
Surveyor; estimate of costs; assessment of benefits or damages
Sec. 22. (a) The surveyor shall estimate the cost of the project andassess the benefits or damages to all affected landowners, eachcounty in which the lake lies, and the department if:
(1) the petition is a joint petition between the owners of landabutting or within one-fourth (1/4) mile of the shoreline orwater line of the lake and the county or the department; or
(2) the petition has been filed separately or jointly by thedepartment or the county.
(b) If the petition was filed only by the landowners abutting orwithin one-fourth (1/4) mile of the shoreline or water line of the lake,the county and the department may not be assessed.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-23
Requirements of assessments of benefits or damages
Sec. 23. The assessing of benefits or damages is to be made:
(1) on each separate tract of land to be affected;
(2) to easements held by railways or other corporations; and
(3) to cities, towns, and other public or private corporations;
including any land or water right or easement injuriously orbeneficially affected.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-24
Apportionment of costs of improvements
Sec. 24. (a) The cost of the improvement asked for in the petitionshall be paid as follows:
(1) If the petition is filed separately by the owners of landabutting upon or within one-fourth (1/4) mile of the shorelineor water line of the lake, proportionately to the benefitsreceived by the owners.
(2) If the petition is filed jointly by the owners of land abuttingupon the lake and the department or the commissioners of eachcounty in which the lake lies or separately by the department orthe commissioners of each county in which the lake lies, asfollows:
(A) Twenty-five percent (25%) of the cost of theimprovement shall be paid by the property owners abuttingor within one-fourth (1/4) mile of the shoreline or water lineof the lake.
(B) Twenty-five percent (25%) of the cost shall be paid bythe county.
(C) Fifty percent (50%) of the cost shall be paid by the
department.
(b) The surveyor shall apportion the cost of the projectaccordingly in the surveyor's report and notices of assessments anddamages shall be sent to all affected parties as prescribed in section25 of this chapter.
(c) If the lake lies in at least two (2) counties, the cost to be paidby each county must be proportionate to the area of the lake that liesin each county. For the purpose of determining the area of the lakethat lies in each county, the surveyor may use aerial photographsmade by the United States Department of Agriculture.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-25
Surveyor; notice of hearing
Sec. 25. (a) The court shall set a date:
(1) not less than thirty (30); or
(2) more than forty (40);
days after the surveyor's preliminary report has been filed for thesurveyor's hearing on the report.
(b) The surveyor shall, within five (5) days after the date for thehearing is set, notify by registered mail, return receipt requested, allowners of land abutting upon or within four hundred forty (440)yards of the shoreline or water line of the lake. The return receiptsare prima facie evidence of notice. The notice must give a briefdescription of the following:
(1) The project.
(2) The project's location.
(3) A description of the owners' land that is assessed ordamaged, if any.
(4) The amount of assessment or damages, if any.
(5) The date and place of the hearing.
(c) If the residence of a landowner cannot be ascertained or if amailed notice is returned undelivered, the surveyor shall publishnotice to all persons in this category by one (1) publication:
(1) in a newspaper of general circulation published and printedin the county in which the lake lies; or
(2) if a paper is not published in the county, in a newspaper inan adjoining county;
at least ten (10) days before the date fixed for the hearing.
(d) The mailed and published notices must notify the owners thatall remonstrances and claims for compensation or damages must befiled in writing with the clerk on or before the day of the surveyor'shearing.
(e) The clerk shall notify the surveyor of the receipt ofremonstrances or claims on or before the day of the surveyor'shearing.
(f) The surveyor shall file the following:
(1) Proof of publication of the published notice in the form ofa publisher's affidavit.
(2) Proof of the mailed notice by return receipts.As added by P.L.1-1995, SEC.19.
IC 14-26-8-26
Surveyor; hearing; final report
Sec. 26. (a) On the day fixed by the court for the hearing on thereport the surveyor shall do the following:
(1) Be present at the place designated in the notice.
(2) Hear all objections made to damages and assessments.
(b) The surveyor may adjourn the hearing as necessary or to anyother suitable or available room in the courthouse of the county thatis considered necessary until all objections are heard. All personsinterested shall take notice of an adjournment without further notice.
(c) All objections to the damages and assessments must beverified and in writing.
(d) After hearing all objections that are offered to the damagesand assessments, the surveyor shall confirm or change the damagesand assessments as justice requires. If the damages and assessmentsare changed, the surveyor shall show the changed amount assessedand the date the change was made.
(e) Upon concluding the hearing the surveyor shall make a finalreport to the court.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-27
Remonstrance against surveyor's final report; time requirements;contents
Sec. 27. (a) The following entities have ten (10) days from thedate the surveyor's final report is filed with the court to remonstrateagainst the final report:
(1) An owner of land affected by the work as proposed in thepetition or in the surveyor's final report.
(2) The commissioners of a county in which the lake lies.
(3) The department.
(b) A remonstrance must be in writing, must be filed with thecourt, and may be for any of the following causes:
(1) That the report of the surveyor is not according to law.
(2) That the proposed work as reported by the surveyor will notbe sufficient to accomplish the purpose set out in the petition.
(3) That the amount of the assessment is exorbitant.
(4) That the amount of the assessment is too much as comparedwith other land assessed, specifying the other land.
(5) That the amount of the assessment of others is too low,specifying the others.
(6) That the amount of the damages is inadequate.
(7) That the owner's land will be damaged and the owner hasnot been given damages.
(8) That the owner's land has been assessed for benefits and theowner's land will not be benefited or will be damaged if theproposed work is accomplished.
(9) That the assessment against a county or the department is
greater than the public benefit to be received.
(10) That the proposed project is not practicable and of publicneed or utility.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-28
Remonstrance against surveyor's final report; order to amend orfile new report
Sec. 28. If after a hearing the court decides that any of the causesof remonstrance described in section 27 of this chapter is true, thecourt may do either of the following:
(1) Direct the surveyor to amend and perfect the report.
(2) Set aside the report and refer the matter back to the surveyorfor a new report.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-29
Remonstrance against surveyor's final report; new report
Sec. 29. (a) In making an order for a new report, the court shall fixthe time when the surveyor shall report.
(b) When a new report is made and filed, a person whose land isreported as affected in the report may remonstrate within the sametime and for the same causes that are allowed to remonstrate againstthe first report. However, a second remonstrance may only concernnew matters contained in the second or amended report.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-30
Remonstrance against surveyor's final report; trial of facts
Sec. 30. The court shall try all questions of facts arising on apetition, report, or remonstrance without a jury.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-31
Remonstrance against surveyor's final report; modification ofassessments
Sec. 31. (a) If a remonstrance is sustained by the court, the courtmay modify and equalize the assessments, as justice requires, bydoing the following:
(1) Diminishing the assessments on some tracts and increasingthe assessments on other tracts.
(2) Giving or withholding damages.
(b) For purposes of this section each person whose land is:
(1) reported as affected; or
(2) stated in the petition as affected;
is considered to be in court by virtue of the notices originally givento the parties on the pendency of the petition.
(c) If:
(1) the land described in the petition as affected by the proposedwork; and (2) the surveyor has reported the land as neither benefited nordamaged;
the court may, if the facts and justice warrant, make assessmentsagainst the land.
(d) The assessments as changed, modified, equalized, or made arevalid.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-32
Remonstrance against surveyor's final report; confirmation ofassessments
Sec. 32. If the finding and judgment of the court is against eachremonstrance:
(1) the assessments made by the surveyor shall be confirmed;and
(2) the order confirming is final and conclusive.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-33
Remonstrance against surveyor's final report; dismissal ofproceedings
Sec. 33. If the finding and judgment of the court is in support ofa remonstrance, the proceedings shall be dismissed at the cost of thepetitioners whose land abuts or lies within four hundred forty (440)yards of the shoreline or water line of the lake.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-34
Approval of assessments where no remonstrance filed
Sec. 34. If after the ten (10) days allowed for remonstrances thereis no appeal or remonstrance, the court shall do the following:
(1) Make an order declaring the proposed work established andapproving assessments as made by the surveyor or as equalizedand modified as provided in section 31 of this chapter.
(2) Assign the duty of carrying out the order to the countysurveyor.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-35
Appeal from approval and confirmation of assessments
Sec. 35. The order of the court approving and confirming theassessments and declaring the proposed work established is final andconclusive, unless an appeal is taken. An appeal may be taken fromthe final judgment of the circuit or superior court to the supremecourt or court of appeals as in other civil cases.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-36
Contracts for construction of improvements; notice; bidding
Sec. 36. (a) The county surveyor shall proceed to have the
improvement constructed as provided by section 32 or 34 of thischapter. The county surveyor shall keep in the surveyor's officecopies of the plans and specifications, which shall be open for theinspection of any landowner interested or any contractor who may bea prospective bidder on the work.
(b) The county surveyor shall give notice in a newspaper ofgeneral circulation printed and published in the following:
(1) Each county in which the lake lies.
(2) Each county where land assessed as benefited is situated.
(c) The notice must state that on a certain day and date, whichmay not be less than fifteen (15) days from the date of thepublication, the surveyor will do the following:
(1) Receive sealed bids for the furnishing of all material andlabor necessary for the construction of the work.
(2) Let the contract to the lowest and best bidder or reject allbids and re-advertise for new bids.
(d) The surveyor may:
(1) let the work as a whole; or
(2) subdivide the work into at least two (2) sections and let thework in separate contracts that will, in the surveyor's bestjudgment, most speedily and economically accomplish thecompletion of the work.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-37
Contractor's bond; requirement
Sec. 37. A person who has successfully bid for the whole or a partof the work shall, when the work is awarded to the person, do thefollowing:
(1) Enter into a contract with the surveyor to perform the work.
(2) Give bond that:
(A) must be approved by the court;
(B) is payable to the state; and
(C) is in a proper penalty for the performance of thecontract;
that the person will pay all damages occasioned bynonfulfillment of the contract. The damages may be recoveredin a court with jurisdiction.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-38
Contractor's bond; default
Sec. 38. If a person who is assessed is damaged by reason of thedefault and failure of the contractor to complete the work within thelimit, the contractor in default is liable on the bond to the persondamaged to the full extent of the damages. The damages may berecovered in a court with jurisdiction in a suit or an action on thebond by the state on the relation of the person damaged for the useof the person or party injured.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-39
Contractor's bond; action on bond
Sec. 39. The surveyor may bring suit on the bond in a court withjurisdiction to recover any increased cost, expense, or damage of orto the work because of the failure of the contractor.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-40
Contractor's bond; aggregate liability of surety
Sec. 40. The aggregate liability of the surety on a bond for allliabilities may not exceed the penalty of the bond.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-41
Contracts for construction of improvements; court approval
Sec. 41. A contract may not be let until the court approves thecontract.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-42
Contractor's final report
Sec. 42. When the contractor has finished the contractor's work,the surveyor shall make a final report to the court showing that thework has been completed and accepted.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-43
New assessments where no contract let
Sec. 43. (a) If the surveyor is unable to let a contract and constructthe proposed improvement for the estimated cost of construction, thesurveyor shall report the fact to the court.
(b) The court shall immediately order a new assessment ofbenefits and damages if requested in writing by at least two-thirds(2/3) of the original petitioners.
(c) If the order for a new assessment is made:
(1) the procedure provided for following the making of theoriginal assessment shall be followed with respect to the newassessment and subsequent actions; and
(2) the landowners have the same right to remonstrate andappeal as is provided for original assessments.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-44
Payment of costs of improvements
Sec. 44. The costs and expenses of an improvement petitioned forunder this chapter shall be out of the county general fund or thegeneral lake improvement fund as described in this chapter, exceptthe part of the cost to be paid by the department. The costs andexpenses include the following:
(1) The contract price for the work. (2) The traveling expenses of the surveyor.
(3) The expenses of the viewers.
(4) Court costs.
(5) Notices.
(6) Advertising.
(7) Attorney's fees.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-45
Surveyor; traveling expenses; compensation; bond
Sec. 45. (a) If the surveyor or the surveyor's deputy uses a carowned by the surveyor or the deputy or a hired conveyance incarrying out the improvement petitioned for under this chapter, thesurveyor or deputy may include traveling expenses incident to thework at an amount for mileage at a rate determined by the countyfiscal body.
(b) The surveyor and the surveyor's deputy:
(1) are not entitled to receive compensation for services inaddition to the statutory salary except for expenses as providedin section 44 of this chapter; and
(2) are not required to give any additional bond other than theofficial bond.
As added by P.L.1-1995, SEC.19. Amended by P.L.10-1997, SEC.19.
IC 14-26-8-46
Viewers; expenses
Sec. 46. The viewers, other than the surveyors, the countycommissioners, and the representative of the department, are entitledto the following:
(1) Six dollars ($6) a day for expenses incurred in viewing theproposed improvement.
(2) An amount for mileage at a rate determined by the countyfiscal body.
As added by P.L.1-1995, SEC.19. Amended by P.L.10-1997, SEC.20.
IC 14-26-8-47
Attorney's fees
Sec. 47. (a) Except as provided in subsections (b) and (c), theattorney's fees paid may not exceed four percent (4%) of theestimated cost of construction.
(b) If an appeal is taken or other extra proceedings are conducted,the court may allow a reasonable additional amount for the extralegal services actually provided.
(c) If:
(1) the aggregate cost is less than one thousand five hundreddollars ($1,500); and
(2) the petition is filed separately by the owners of land abuttingor within one-fourth (1/4) mile of the shoreline or water line ofthe lake;
the court shall fix a reasonable amount instead of the four percent
(4%) for the petitioners' attorney's fees.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-48
Verified bill; partial payment; full payment
Sec. 48. (a) A payment may not be made for work done under thischapter until a verified bill has been:
(1) presented to the surveyor;
(2) approved by the surveyor;
(3) filed with the auditor; and
(4) allowed by the commissioners.
(b) A partial payment may not be made to a contractor thatexceeds seventy-five percent (75%) of the cost of the improvement.
(c) Full payment may not be made until:
(1) sixty-one (61) days after the completion and acceptance ofthe work; and
(2) after the contractor has filed with the surveyor an affidavitthat all bills for labor, other service, or materials that have beenused in the construction of or incorporated in the work havebeen paid in full.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-49
General lake improvement funds
Sec. 49. (a) The board of county commissioners of each countymay establish a general lake improvement fund. The fund shall beused to pay for the construction of dams and other works to raise,stabilize, or maintain lake levels under this chapter. The fundincludes the following:
(1) Taxes levied or collected for lake improvement purposes.
(2) The proceeds of bonds issued and sold for lake improvementpurposes.
(3) Assessments for benefits to property under this chapter.
(4) Other money that is provided by law to be paid into thefund.
(b) If the board of county commissioners considers it inadvisableto establish a general lake improvement fund, payments for projectsunder this chapter shall be paid into and shall be paid from thecounty general fund.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-50
Levy of real property tax
Sec. 50. The fiscal body of a county concerned in work authorizedin this chapter may, upon request of the board of countycommissioners, approve the levy and collection of a tax upon all realproperty in the county to raise money to carry out this chapter.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-51 Surveyor; computation and apportionment of costs; certificationof assessments to county auditor
Sec. 51. (a) The surveyor in charge of a project established underthis chapter shall, within ten (10) days after letting the contract forconstruction, carefully compute the entire cost of the improvement,including the following:
(1) Incidental costs, expenses, and damages.
(2) Attorney's fees as allowed by the court.
(b) The surveyor shall apportion the costs and expenses to thetracts of land assessed in proportion to the total assessment againstthe respective parcels of land benefited by the construction of thework. The apportionment to the respective tracts or parcels of landmay not exceed the benefits assessed against the tracts or parcels,respectively.
(c) The surveyor shall certify the assessments, apportionments,and time to make payments to the county auditor. If the improvementaffects the landowners in more than one (1) county, the surveyorshall certify the assessments, apportionments, and time to makepayments to the auditor of each other county affected.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-52
Auditor; notice of assessments
Sec. 52. The auditor of each county affected shall give notice bypublication in a newspaper published in the county, not less thanthirty (30) days before the day for payment of assessments, of thefollowing:
(1) That the assessment sheet has been prepared and placed inthe hands of the county treasurer for collection.
(2) The time and manner in which the assessments are requiredto be paid.
(3) That a person affected who desires to pay the assessment todischarge the person's land from all liability to the assessmenton or before the day named in the order may do so.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-53
Auditor; extension of assessments upon duplicate
Sec. 53. (a) The auditor shall then extend the assessments upon aspecial duplicate:
(1) to be provided for the auditor at the expense of the county;
(2) to be known as the lake duplicate; and
(3) for recording all assessments under this chapter in thecounty.
(b) Except as provided in subsection (c), in extending theassessments upon the duplicates, the auditor shall, in the firstinstance, extend the assessments for the full period of payment of allassessments, as fixed by the surveyor.
(c) Assessments of less than twenty-five dollars ($25) shall bepaid within one (1) year. (d) The auditor shall calculate and add to each successiveinstallment interest at the rate of six percent (6%) per year until thedate fixed for payment.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-54
Assessments less than $25
Sec. 54. (a) The provisions of this chapter permitting the paymentof assessments in installments do not apply to assessments of lessthan twenty-five dollars ($25).
(b) If:
(1) one (1) landowner owns more than one (1) tract of land; and
(2) an assessment of less than twenty-five dollars ($25) is madeagainst at least one (1) of the tracts of land;
all assessments less than twenty-five dollars ($25) shall be paidwithin one (1) year.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-55
Assessments as liens; collection of assessments
Sec. 55. An assessment constitutes a lien upon the tracts orparcels of land and shall be collected at the same time and in thesame manner as taxes are collected. After collection the assessmentsshall be deposited in the lake improvement fund or the countygeneral fund.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-56
Nonpayment of assessments; sale of land
Sec. 56. (a) If an assessment, an installment, or a part of anassessment or installment is not paid when due, the failure to payresults in the same penalties as for the nonpayment of taxes. The landshall be placed upon the list of land to be sold at tax sale, and theland shall be sold at tax sale at the same time and in the same manneras provided under IC 6-1.1-24. The same penalties apply and thesame rights are acquired upon purchase at these sales as in other taxsales, including the execution and delivery of tax deeds and the rightsand remedies provided in cases of property sold at tax sale.
(b) Personal property or real property other than that assessed maynot be sold for the failure to pay an assessment or installment.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-57
Nonpayment of assessments; public land
Sec. 57. (a) If:
(1) a municipal corporation or other public corporation fails topay an assessment for benefits or for property the municipal orother public corporation owns; and
(2) there is not a provision for selling the property at tax sale;
the municipal or other public corporation is considered to have
elected to pay in installments at the same time and in the samemanner as provided in other cases. The assessments shall be includedin the respective lists, and the municipal or other public corporationshall pay the installments to the county treasurer in the same manneras provided in other cases.
(b) A municipal or other public corporation that fails to pay aninstallment is liable for the nonpayment. The auditor shall enforcecollection by bringing an action in the name of the state of Indiana,on the relation of the county treasurer in behalf of the county for theinstallment that is due and unpaid, together with penalties. Therecovery is without relief from valuation and appraisement laws andincludes reasonable attorney's fees for collecting the installment.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-58
Assessments as liens; priority; payment; cancellation
Sec. 58. (a) The amount of an assessment as made or approvedand confirmed by the court is a lien upon the land assessed from thetime the assessment is approved and confirmed. The lien follows allother improvement liens upon the affected real property in order ofpriority as to date of attachment.
(b) The surveyor charged with the construction of the work shallkeep in the surveyor's office a complete copy of the assessments thatmay, upon demand, be examined by any interested person.
(c) An owner of land assessed for benefits who desires to transferthe property free and clear of the lien for the assessment may depositwith the county treasurer the full amount of the benefits assessedagainst the tract or parcel of land. When the surveyor has made thefinal computation to the county auditor, the treasurer shall pay to theperson paying the assessment the surplus, if any, over the actualassessment. Whenever the owner of a tract or parcel of land has paidto the treasurer and the treasurer's books show the payment, the lienfor the assessment on the tract or parcel of land is automaticallycanceled.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-59
Lien for labor and materials
Sec. 59. (a) Each subcontractor, laborer, and other person whoperforms labor or another service or furnishes material that is usedin the construction of or incorporated in work under this chapter,including board for laborers and all fuel, oil, and grease used in theoperation of machinery used in the construction work, has a lienupon the fund raised for the payment of the work. The lien attachesif written notice is filed with the surveyor:
(1) within sixty (60) days of furnishing the labor or material;and
(2) that states the amount due and describes the articlefurnished.
(b) After the receipt of notice under subsection (a), the surveyor
shall withhold payment to the contractor for the work in an amountsufficient to satisfy the lien until the amount is adjusted and paid.
(c) If a contractor and a person claiming a lien disagree on theamount or validity of the lien, the court ordering the construction ofthe work shall, upon motion of the surveyor, contractor, or personclaiming the lien, determine the amount to be paid. The surveyor maypay the amount determined, and on payment the surveyor is releasedfrom all liability concerning the payment.
(d) If the surveyor fails to comply with this section, the surveyoris liable on the surveyor's bond for the amount improperly paid overto the contractor.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-60
Liability of surveyor on bond
Sec. 60. (a) If a surveyor fails to perform any work required of thesurveyor by this chapter, after ten (10) days written notice to thesurveyor by any interested person the surveyor is liable with thesurveyor's sureties on the surveyor's official bond:
(1) for all damages caused by the failure to perform the duty,including reasonable attorney's fees; and
(2) to the person damaged.
(b) An action on the bond of the surveyor for failure to performa duty must be brought in the name of the state on the relation of:
(1) the county auditor; or
(2) the person injured.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-61
Petition filed under IC 36-9-27; duties of viewers and surveyor
Sec. 61. (a) If a petition is filed under IC 36-9-27 for theconstruction, reconstruction, alteration, repair, or recleaning of adrainage ditch that extends into or within one hundred sixty (160)rods of a freshwater lake and has a bottom depth lower than theaverage normal water level of the lake, the petition may ask that:
(1) the owners of land abutting or within four hundred forty(440) yards of the shoreline or water line of each lake likely tobe affected;
(2) each county in which the lake lies; and
(3) the department;
participate in the cost of constructing a dam or structure, diversionditches, pumping stations, or other appurtenances necessary toprotect and preserve the water level of the lake.
(b) If a request is made in a petition under subsection (a), thecourt having jurisdiction of the drainage proceedings shall appointadditional viewers as prescribed in this chapter to represent thecounty and the department. The viewers shall file a separate reporton whether a dam, other structure, diversion ditch, pumping station,or other appurtenance is practicable and of public need.
(c) If the report of the viewers is in the affirmative, the surveyor
for the drainage project shall include in the report plans andspecifications for the improvement and apportion assessments anddamages in the same manner as prescribed in this chapter governingraising or maintaining lake levels.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-62
Petition filed under IC 36-9-27; court proceedings
Sec. 62. (a) If a petition is filed under section 61 of this chapterfor the construction, reconstruction, alteration, repair, or recleaningof a drainage ditch that extends to or within one hundred sixty (160)rods of a freshwater lake and has a bottom depth lower than theaverage normal water level of the lake and the petition does notrequest the construction of a dam, other structure, diversion ditch,pumping station, or other appurtenance to protect and preserve thewater level of each lake likely to be affected:
(1) twenty percent (20%) of the owners of land abutting orwithin four hundred forty (440) yards of the shoreline or waterline of the lake;
(2) a county in which the lake lies; or
(3) the department;
may file a petition addressed to the court having jurisdiction any timebefore the court order granting the petition for the drainage projectto include a dam, other structure, diversion ditch, pumping station,or other appurtenance necessary to protect and preserve the waterlevel of the lake.
(b) Upon receipt of a petition filed under subsection (a), the courtshall set a date for a hearing. On that date the court shall hear allevidence submitted regarding the practicability and public need of adam, other structure, diversion ditch, pumping station, or otherappurtenance to protect and preserve the water level of each lakelikely to be affected.
(c) If the court rules that the additional construction is necessary,the same procedure shall be followed for inclusion as if theadditional construction were included in the petition for the drainagework.
(d) If the court rules adversely on the practicability or public needof a dam, other structure, diversion ditch, pumping station, or otherappurtenance, an appeal may be taken from the final judgment of thecircuit or superior court to the supreme court or the court of appealswithin thirty (30) days.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-63
Petition filed under IC 36-9-27; additional assessments
Sec. 63. If:
(1) the construction of a dam, other structure, diversion ditch,pumping station, or other appurtenance in connection with thepreservation or stabilization of a lake is petitioned for undersection 62 of this chapter in connection with a drainage
proceeding; and
(2) in the surveyor's opinion, the improvement to the lake will:
(A) be beneficial to any person affected by the drainageproject; or
(B) in any way provide better drainage than if the water levelof the lake is left uncontrolled or undisturbed;
the surveyor for the drainage project may assess a part of the cost ofthe improvement that would normally be paid by those persons whoown land abutting or within four hundred forty (440) yards of theshoreline or water line of the lake to any person affected by thedrainage project.
As added by P.L.1-1995, SEC.19.
IC 14-26-8-64
Elevation of lake levels
Sec. 64. (a) The county surveyor shall do the following:
(1) Certify the elevation of a lake level established under thischapter, including the bench mark used for the point ofbeginning.
(2) Record the elevation of the lake level and the bench mark inthe office of the county recorder in each county in which thelake lies.
(b) The elevation of a lake level established under this chaptermust refer to at least one (1) of the following:
(1) The United States Coast and Geodetic Survey, first, second,and third order levels.
(2) The United States Geological Survey, third order levels.
As added by P.L.1-1995, SEC.19.