a less width and volume of water than the Delaware river, ordinarily, at Phillipsburg, in this state, below its junction with the Lehigh, nor to any river or stream below the head of tide water in the same.

construct

on rivers

streams.

2. And be it enacted, That all companies that may be Power to hereafter established by virtue of this act, and of the act to and mainwhich this is a supplement, for the purpose of damming tain dams rivers and streams in this state, or between this and any and other state, shall have power to construct, erect and maintain dams on rivers and streams of the width as herein before mentioned, at such points on said rivers and streams, and of such heights as may by them be deemed necessary or advisable, not exceeding ten feet above common low water of such rivers and streams; provided, that such dams Proviso. on all navigable rivers shall each have a good and sufficient schute in connection therewith of not less than one hundred feet in width, to enable rafts and flat boats to pass safely and conveniently down the same; and also provided, that said Proviso. dams shall each be constructed with a fish way for the passage of shad and other fish, which said fishways shall be constructed and maintained under the supervision and approval of the fish commissioners of this state or of a majority of them; and also provided that the plans and con- Proviso. struction of such dams shall be approved by at least three engineers and experts to be appointed by the governor of this state, on the application of such companies, to be paid by such companies such compensation for their services as shall be fixed by said governor.

main canals

ways on

of rivers or

3. And be it enacted, That such companies shall have power May cut or to cut or acquire main canals or race-ways on each side of acquire said rivers or streams, from their said dams to such point or or racepoints below as may by them be deemed necessary, and also each side to cut, construct and erect as many lateral or branch race-streams. ways, locks, weirs, gates and other works, from their said main canals or race-ways to the said rivers or streams, as may by them be deemed expedient for the purposes of creating and using the water or water power of the said rivers and streams, for mills, manufactories, founderies, machine shops and other purposes; provided, that the water so di- Proviso. verted from such rivers and streams shall be returned again to them after being used for the purposes aforesaid, and that the water shall not be so completely diverted as to leave the general beds of the rivers and streams below such

Proviso.

May have, hold, pur

powers and

water priv

rights,

tels, and ef

constructi

&c., &c.

dams uncovered or bare; and further provided, that such companies shall commence their proposed dams and works within six months from the date of their organization, and complete their said dams and cut or acquire their main canals or race-ways within two years from the date of com mencement as aforesaid, and any company failing to comply with the provisions of this section shall thereby forfeit the franchises given it by this act.

4. And be it enacted, That such companies shall have chase, lease power from time to time to purchase, receive and hold, and convey possess and enjoy, demise, grant, lease, alien, sell and convey sites, water all such lands, lots, sites, mills, manufactories, erections, hereditaments and waters, water powers and water privil ileges, eges, rights, goods, chattels and effects, or any part thereof, goods, chat- for such term or terms, and upon such condition or condifects, and tions as they shall from time to time deem necessary or reservoirs, expedient for the public purposes of this act, and also to acqueducts, construct, make, erect, form and maintain all such embankments, reservoirs, aqueducts, culverts, locks, weirs, gates, ways, bridges and other works as may by them be deemed convenient and necessary for the uses and purposes aforesaid, and to repair and improve the same for the better carrying on and management thereof; and further, that it shall and may be lawful for such companies, by their di rectors, officers, agents, engineers, superintendents or cortractors, or any other person or persons by them employed. from time to time and at all times hereafter, to enter upon all lands, whether covered with water or not, for the purupon lands poses contemplated by this act, doing no unnecessary damage, and when the locations of their said dams, and the routes and locations of their main canals and race-ways branches and improvements shall be determined by the directors of such companies, or a majority of them, from time to time, and a survey thereof, together with the lands and portions of such rivers or streams necessary for the same shall, by an engineer or other person employed by such companies, be completed and deposited in the office of the secretary of state, then it shall be lawful for the said com panies, their agents, engineers, contractors, superintendents or other person or persons employed by them, to enter upon take possession of and use, occupy and possess all and singu lar, such lands and premises subject to such compensation and in such manner as provided in the fifth section of thi

May enter

&c.

act.

ings when

cannot

compensa

materials.

5. And be it enacted, That where any waters, streams, lands, Proceedproperty, materials or franchises, that may be necessary or company useful for the said dams, on rivers and streams of width and owners Lerein before mentioned, or for the said canals or raceways, agree as to shall not be made a free gift by their owner or owners to tion for such companies for the public purposes thereef, then such damages or companies shall pay to the owner or owners of all such lands such compensation as shall be mutually agreed upon between them; and if any such corporation or its agents cannot agree with the owner or owners of any such waters, streams, lands, property, materials or franchises, for the compensation proper for the damage done or likely to be done to or sustained by any such owner or owners of such waters, streams, lands or materials which such corporation may enter upon, use or take away, in pursuance of the authority herein given, or by reason of the absence or legal incapacity of any such owner or owners, no such compensation can be agreed upon, a particular description of the waters, streams, lands, materials, franchises or other property so required for the use of such company incorporated under this act, and the act to which this is a supplement, in the construction of said dams, canals, raceways, and other works, shall be given in writing, under 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 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 ten days, and to assign a particular time and place for the appointment of the commissioners hereinafter named, at which time and place, upon satisfactory evidence to him of the service or publication of such Dotice aforesaid, he shall appoint, under his hand and seal, three disinterested impartial and judicious freeholders, residents in the county in which the waters, streams, lands, materials or other property in controversy lie, or the owners reside, commissioners to examine and appraise said waters, -land or other property, 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 ex

ers to make re

port.

may enter upon and

pressed therein, not less than ten days; and it shall be the duty of 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 waters, streams, lands, materials or other property, and to make a just and equitable estimate or appraisement of the value of the same, and an assessment of damages to be paid by the said company for such waters. streams, lands, materials or other property, and damages aforesaid, which said 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 waters, streams, lands, materials or other property, and the appointment and oaths or affirmations aforesaid, in the clerk's office of the county in which the said waters, streams, lands, materials, or other Company property are situate, to remain of record therein; and thereupon and on payment or tender of payment of the amount awarded as hereinafter provided, the said company is hereby empowered to enter upon and take possession of the said waters, streams of the width as herein before mentioned, lauds, materials or other property, for the purposes aforesaid; and the said report or a copy thereof certified by the clerk of said county, and proof of payment or tender of the amount awarded shall at all times be considered as plenary evidence of the right of any such company to have, hold, use, occupy, possess and enjoy the said waters, lands, or other property, 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 instituted against the said company, if they neglect or refuse to pay for twenty days after demand made of their treasurer, and shall from time to time constitute a lien upon the property of the said 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 expenses to the justice of the supreme court, commissioners, clerks and other persons performing any the duties prescribed in this section as he shall think equit

OS session on

payment or tender of payment

of

able and right, which shall be paid by the said company; provided always, that should any such company or the owner Proviso. or owners of any such waters, streams, lands, materials or other property, feel 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 waters, streams, lands, materials or other property may be.

ings in case

6. And be it enacted, That every appeal from the decision Proceedof the commissioners appointed under the preceding sec- of appeal. tion, 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 such waters, streams, lands, materials or other property appraised by the said commissioners 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 said circuit court full right and power to hear and adjudge the same, and 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 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 waters, streams, lands, materials or other property, 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 any such company, and execution awarded therefor; but if the said jury shall be Payment of applied for by the owner or owners, and shall find a less sum than such company shall have offered or the said commissioners shall have awarded, then said costs shall be paid by said applicant or applicants, and either deducted out of said sum found by said jury or execution awarded therefor, as the said court shall direct; but such application shall not prevent such company from taking the said waters, streams, lands, materials or other property, upon filing the aforesaid report of the said commissioners; provided, that Proviso. in no case whatever shall such company enter upon or take possession of any waters, streams, lands, materials or other property of any person or persons for the purpose of actually constructing said dams, reservoirs, canals, race-ways,

costs.