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more land for the slope and protection of the side banks of said railroad, in which case so much land as will be necessary for the purpose, and no more, shall be taken, with as many sets of tracks and rails as they may deem necessary, and it shall and may be lawful for the said president and directors, their agents, engineers, superintendents or others in their employ, to enter at all times upon all land and waters for the purpose of exploring, surveying, levelling or laying out the route or routes of such railroad, and of locating the same, and to do and erect all necessary works, buildings and appendages thereof, doing no unnecessary injury to private or other property, and when the route or routes of such road shall have been determined upon, and a survey of such route with the owner or owners of such required lands or materials for the use or purchase thereof, or when, by reason of the legal incapacity or absence of such owner or owners, no such agreement can be made, a particular description of the land or materials so required for the use of the said company in the construction of the said road shall be given in writing, under 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 or out of this state, to make publication thereof as he shall direct for any term not less than six 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, route or routes deposited in the office of the secretary of state, then it shall be lawful for the said company, by its officers, agents, engineers, superintendents, contractors, workmen and other persons in their employ, to enter upon, take possession of hold, have, use, occupy and excavate any such lands, and to
erect embankments, bridges, ferries, and all other works necessary to lay rails, and to do all other things which shall be suitable or necessary for the completion or repair of the said road or roads, subject to such compensation as is hereinafter provided; provided always, that the payment or tender of the payment of all damages for the occupancy of lands through which the said railroad may be laid out, be made before the said company or any person under their direction or employ, shall enter upon or break ground in the premises, except for the purpose of surveying and laying out said road or roads, unless the consent of the owner or owners of such lands be first had and obtained. 8. And be it enacted, That when the said company or its agents cannot agree with notice aforesaid, he shall appoint, under his hand and seal, three disinterested, impartial, and judicious freeholders, not resident in the county
in which the lands or materials in controversy lie or the
owners reside, commissioners to examine and appraise the said lands, or materials, 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 six days; and it shall be the duty of the said commissioners (having first taken and 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 and materials, 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 said company for such lands and materials, 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 lands or materials and the appointment and oaths or affirmations aforesaid, in the clerk's office of the county in
Proceeding; in case confipany and owners cannot agree.
Parties dissatisfied may appeal.
which the lands or materials are 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 the same company to have, hold, use, occupy, possess, and enjoy the said land or materials, or of the said owner or owners to recover the amount of said valuation, with interests and costs, in any action of debt, in any court of competent jurisdiction, in a suit to be instituted 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 on application of either party and on reasonable notice to the others, tax and allow such costs, fees, and expenses to the justice of the supreme court, commissioners, clerks, and other persons performing any of the duties prescribed in this section of this act, as they or he shall think equitable and right, and to order and direct by whom the same shall be paid under the circumstances of the case.
9. And be it enacted, That in case the said company, or the owner or owners of the said land or materials, shall be dissatisfied with the report of the commissioners named in the preceding section, and shall apply to the justices of the supreme court, at the next term after the filing of the said report, the court shall have the power, upon good cause shown, to set the same aside, and thereupon to direct a proper issue for the trial of said controversy to be formed between the said parties, and to order a jury to be struck, and a view of the premises or materials to be had, and the said issue to be tried at the next circuit 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 said jury to assess the value of the said lands or materials, 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 said
company and execution awarded therefor; but if the same
Rates of transportation.
Company to construct and keep in repair bridges.
shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon ways over or under said road, so that he may pass the same. Dividendo. 12. And be it enacted, That the president and directors shall within one year after the said railroad shall have been completed, declare and make such dividend as they may deem prudent and proper of the net profits thereof, and shall in like manner semi-annually thereafter declare such dividends and pay the same to the stockholders of the said company, in proportion to the amount of shares held by them respectively, as they may deem prudent and proper. o,” 18. And be it enacted, That if any person shall wilfully works, impair, injure, destroy, or obstruct the use of any railroad enjoyed under the provision of this act, or of any of their necessary works, wharves, bridges, carriages, or machines, such person or 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. Yo; 14. And be it enacted, That the said company may have * held and hold real estate at the commencement and termination of said road or roads, and at intermediate depots upon the line of the said road not exceeding ten acres at each place, and may erect and build thereon such houses, warehouses, machine shops and other buildings and improvements, as they may deem expedient for the safety of property and the construction of cars, carriages, steam engines, and for other necessary uses, and shall also have the privileges and authority to erect, build and maintain in said counties, such wharves, piers, bridges, and other facilities as they may think expedient and necessary for the full enjoyment of all the benefits conferred by this act, which said lands shall be obtained in the manner provided for in the second section of this act. ** 15. And be it enacted, That as soon as the railroad, with its appendages, shall be finished, so as to be used, the president and treasurer of the said company shall file, under oath or affirmation, a statement of the amount of