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the oath or affirmation of some engineer or proper agent of the company, and also the name or names of the occupant or occupants, if any there be, and of the owner or owners, if known, and their residence, if the same can be ascertained, to one of the justices of the supreme court of this state, who shall cause the said company to give notice thereof to the persons interested, if known and in this state, or if unknown and out of this state to make publication thereof as he shall direct, for any term not less than twenty days, and to assign a particular time and place for the appointment of the commissioners hereinafter named, at which time, upon satisfactory evidence to him of the service or publication of such notice aforesaid, he shall appoint, under his hand and seal, three disinterested, impartial and judicious freeholders, residents in the county in which the land in controversy lies, or the owners reside, commissioners to examine and appraise the said land, and to assess the damages, upon such notice to be given to the persons interested as shall be directed by the justice making such appointment, to be expressed therein, not less than twenty days; and it shall be the duty of said commissioners, having first taken or subscribed an oath or affirmation before some person duly authorized to administer an oath, faithfully and impartially to examine the matter in question, and to make a true report, according to the best of their skill and understanding, to meet at the time and place appointed, and to proceed to view and examine the said land, said commissioners at the same time taking into consideration all the benefits to be derived from, or in consequence of the said railroad, to the said owner or owners, and to make a just and equitable estimate or appraisement of the value of the same, and assessment of damages as shall be paid by the company for such lands and damages aforesaid, which report shall be made in writing, under the hands and seals of the said commissioners, or any two of them, and filed within ten days thereafter, together with the aforesaid description of the land, and the appointment and oaths or affirmations aforesaid, in the clerk's office of


Proceedings on appeal.

the county in which the land is situate, to remain of record
therein, which report, or a copy thereof, certified by the
clerk of said county, shall at all times be considered as
plenary evidence of the right of said company to have,
hold, use, occupy, possess and enjoy the said land, or of
the said owner or owners to recover the amount of said
valuation, with interest and costs, in an action of debt, in
any court of competent jurisdiction, in a suit to be insti-
tuted against the company, if they shall neglect or refuse
to pay the same for twenty days after demand made of
their treasurer, and shall from time to time constitute a
lien upon the property of the company, in the nature of
a mortgage; and the said justice of the supreme court
shall upon application of either party, and on reasonable
notice to the others, tax and allow such costs, fees and ex-
penses to the justice of the supreme court, commissioners,
clerks and other persons performing any of the duties pre-
scribed in this section, as they or he shall think equitable
and right, which shall be paid by the company; provided
always, that should the said company, or the owner or
owners of any of the land, feel himself, herself, or them-
selves aggrieved by the decision of the commissioners
aforesaid, he, she, or they, may appeal to the next circuit
court in the county wherein the said lands may lie.
8. And be it enacted, That every appeal from the decision
of commissioners appointed under the preceding section
shall be made in writing, and in the form of a petition to
said court, and filed with the clerk of the said circuit court
of the county wherein the lands appraised by the said com.
missioners shall be, and notice in writing of such appeal
shall be given to the opposite party within ten days after
the filing thereof, which proceeding shall vest in the circuit
court full right and power to hear and adjudge the same,
and to direct a proper issue for the trial of said contro.
versy, to be formed between the said parties, and to order
a jury to be struck, and a view of the premises to be had,
and the said issue to be tried at the next term of said court
to be holden in the said county, upon the like notice, and

in the same manner as other issues in the said court are tried; and it shall be the duty of the said jury to assess the value of the said land and damages sustained, and if they shall find a greater sum than the said commissioners shall have awarded in favor of the said owner or owners, then judgment thereon, with costs, shall be entered against the said company, and execution awarded therefor; but if said jury shall be applied for by the owner or owners, and shall find a less sum than the company shall have offered, or the said commissioners shall have awarded, then said costs to be paid by said applicant or applicants, and either deducted out of the said sum found by the said jury or execution awarded therefor, as the said court shall direct, but such application shall not prevent the company from taking the said land, upon filing the aforesaid report; provided, that in no case whatever shall said company enter upon, or take possession of any lands of any person or persons, for the purpose of actually constructing said railroad, or making any erection or improvements whatever, or otherwise appropriating said lands to the use of said company, until they have paid to the party or parties entitled to receive the same, the amount assessed by the commissioners as to the value of such lands or damages, in case the report of the commissioners is not appealed from, or if the same is appealed from, then the amount which shall be found by the jury by whom the issue shall be tried; but in case the party or parties entitled to receive the amount assessed by the commissioners, in case there shall be no appeal, or in case of appeal found by the jury, shall refuse, upon tender thereof being made, to receive the same, or shall be out of this state, or under any legal disability, then the payment of the amount assessed, or found as aforesaid, unto the circuit court of the county where the said lands lie, shall be deemed a valid and legal payment; and further, that the party or parties entitled to receive the amount assessed by the commissioners may, upon tender thereof being made, receive the same without being barred from his, her or their appeal from the report of the commissioners.


o to 9. And be it enacted, That it shall be the duty of the said

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...”" company to construct and keep in repair good and sufficient * bridges or passages, over or under the said railroad, where any public road shall intersect and cross the same, so that the passage of carriages, horses and cattle along the said road shall not be obstructed; and, likewise, when the said railroad shall intersect any farm or lands of any individual, to provide and keep in repair suitable and convenient wagon ways over or under the said road. Yo, 10. And be it enacted, That the said company may pur** chase, have and hold real estate at the commencement and termini of their railroad, and at any intermediate depot upon the line of the same, not exceeding five acres at each place, and may erect and build thereon houses, warehouses, stables, machine shops, and such other buildings and improvements as they may deem expedient for the safety of property and the construction of carriages and necessary uses, and take and receive the rents, profits and emoluments thereof, and shall have the privilege and authority to erect, build and maintain over such creeks or streams as the road may cross, such piers, bridges and other facilities as they may think expedient and necessary for the full enjoyProviso. ment of all the benefits conferred by this act; provided, the said company, whenever it may become necessary to cross any navigable creek with their road, shall construct a bridge or bridges, with suitable and sufficient draws, so as not to obstruct the navigation thereof. Dividends. 11. And be it enacted, That the president and directors of the said company shall declare and make such dividends as they may deem prudent and proper, from time to time, out of the net profits of the said railroad. o, 12. And be it enacted. That the president and directors of o: said company shall have power to have constructed, or to &c. purchase with the funds of said company, all such machinery, engines, cars, wagons, carriages, or other vehicles, for the transportation of persons or any species of property on railroads, as they may think fit, reasonable, expedient or right; but no steam power shall be used as a motive or

propelling power on said railroad; and they are hereby authorized to demand and receive such sum or sums of money for the transportation of persons and property thereon as they, from time to time, may think reasonable and proper. 18. And be it enacted, That if any person shall wilfully ..." impair, injure, destroy or obstruct the use of any railroads "** enjoyed under the provisions of this act, or any of their necessary works, wharves, bridges, carriages or machines, such persons so offending shall forfeit and pay to the said company the sum of fifty dollars, to be by them recovered in any court having competent jurisdiction, in an action of debt, and further shall be liable for all damages. 14. And be it enacted, That the said corporation shall ot have power to borrow such sum or sums of money from ** time to time as shall be necessary to build, construct or repair said road, and furnish the said corporation with all the necessary engines and machinery for the uses and objects of said company, and to secure the payment thereof by bond or mortgage, or otherwise, on the said roads, lands, privileges, franchises and appurtenances of or belonging to said corporation, at a rate of interest not exceeding seven per centum per annum; provided, that it shall not be Proviso. lawful for the said company to plead any statute or statutes of this state against usury in any suit in law or equity, instituted to enforce the payment of any bond or mortgage executed under this section. 15. And be it enacted, That if the said railroad shall not omo

be completed at the expiration of five years from the o fourth day of July next ensuing, that then and in that case this act shall be void. 16. And be it enacted, That as soon as the said railroad is to finished, the president of the said company shall file under oath or affirmation a statement of the cost of the said railroad, including all expenses, in the office of the secretary of state, and annually thereafter shall under oath or affirmation make a statement to the legislature of this state of the

proceeds and expenses of said railroad, and whenever the

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