Whenever earth, sand, gravel, stone or other material requisite for the construction or repair of any lawful dam shall lie contiguous or adjacent to such dam, the owner of such dam may proceed by petition, setting forth the facts, to the Superior Court of any county in term time, or to any Judge thereof in vacation, upon 10 days’ notice to the owner of such earth, sand, gravel, stone or other material, if resident within the State, or, if nonresident, to the tenant residing upon the premises. The Court or any Judge thereof shall thereupon by order appoint 5 disinterested freeholders of the county as commissioners, directing them to go upon the premises described in the petition and assess the value of such earth, sand, gravel, stone or other material stated in the petition to be required, and also to determine the damages sustained by the owner thereof by reason of taking the same, and make return thereof under their hands or the hands of a majority of them, which return shall be forthwith filed in the office of the Clerk of the Court in the county wherein the proceedings shall take place. Upon amount of damages so being paid unto the person entitled, or deposited to their credit in any state or national bank having an office or a branch in the county where the proceedings shall have been commenced, the owner of such dam may enter in and upon the premises described in the petition, containing such earth, stone, sand, gravel or other material, and take and remove and use the same for the construction or repair of their dam. If either party be dissatisfied with the amount of damages awarded, upon notice and petition filed within 30 days after the return of the commissioners, the Court or any Judge thereof shall grant an order of review and appoint 5 other freeholders, who shall review the premises and reassess the damages and make return.

If greater damages are allowed than were given on the first order, such increase shall be forthwith paid or deposited by the owner of the dam, and if less damages shall be allowed, the difference between the sums so awarded shall be refunded, the costs of such review to be borne by the unsuccessful party. Proceedings for a review shall not delay the right of the owner of the dam to take and use the materials in question in the repair or construction of such dam after having paid or deposited the amount first awarded.

13 Del. Laws, c. 450, § 1; Code 1915, § 3670; Code 1935, § 4222; 23 Del. C. 1953, § 1902; 63 Del. Laws, c. 142, § 40.