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that if the owner of the lands sought to be taken shall, before said judge shall appoint such persons, demand in writing that the jury be taken from any other county in such judicial circuit, then said judge shall appoint such jury from persons having the qualifications of jurors in such otber county in the circuit as shall be designated by such landowner in his demand for the enquiry to be made respecting bis lands. The same rights of challenge peremptorily, or for favor, or cause, may be exercised by the city attorney, and by such land. owner whose land is sought to be taken, or by bis agent or attorney, as a party to a civil action in the circuit court is entitled to have, and the judge shall decide the same in like manner, and replace the name of any juror successfully challenged by the name of some
other competent person until a jury of twelve shall be Precept jo be chosen. The said judge shall thereupon issue his by
prejudge. cept directed to such jurors, requiring them and each
of them to appear before him, on the day named in the notice for such jurors to meet, for the discharge of their duties under such appointment. The precept so issued may be served by the sheriff of said county, or by any public officer of said city. The jurors so chosen shall before entering upon the performance of their duty, take an oath before such judge faithfully and impartially to discharge their duty as such jurors and a true verdict give, whether it is necessary to take such land or any part thereof mentioned in such resolution for
the purpose therein specified. Amended.
SECTION 10. That section five of said chapter five be amended by striking out the words "at such time as they may agree upon, shall," in the first and second lines, and insert the words "shall forth with, under direction of said judge." strike oui “by one of the ju.
rors,” in fifth line, and insert" by said judge.” Verdict of jury.
SECTION 11. Section six of said chapter five is amended so as to read as follows: Section 6. After having made such view and heard such testimony as shall have been produced, the said jury shall, under direction of said judge, deliberate apart and return their unanimous verdict in writing, signed by them, in which they shall find and state whether it is necessary to take the whole of the lands described in such reso. lution for the purpose therein specified, or any part thereof, describing particularly the part to be taken, if they find only a part thereof so
necessary. Such verdict, with all the papers, proceedings and testimony had before him and said jury, sball then be forthwith
filed by said judge with the clerk of the circuit court for Eau Claire county, together with a certificate by said judge that the same are the originals and the whole thereof. The clerk shall, on application, furnish a certified copy of the same or any part thereof, which shall have the same force and effect as the originals. In case any jury called under the provisions of this When jury discharter shall disagree, another jury shall be forth with agree. selected in like manner, and all the like proceedings thereafter had as hereinbefore provided for the first jury, excep that the said judge shall fix a reasonable time for the assembling of such jury in the precept therefor, but no other notice thereof shall be necessary to any party; and the like steps shall be taken in case of any further disagreement, until a verdict shall be found.
SECTION 12. That section seven of said chapter five city attorney to be amended so that the same shall read : Section 7.
appraised. Should the necessity for the taking of the premises, or any part thereof mentioned in the resolution of the council, be so established by the verdict of a jury, then the common council may enter an order directing the city attorney to proceed to procure to be assessed and appraised the damages to the owner or owners of the premises so found necessary :o be taken by reason of the taking of the same for the purpose specified. The city attorney shall thereupon make application to the judge of the circuit court or judge of the county court for Eau Claire county, briefly setting forth the fact that the necessity for taking such premises bas been so established by the verdict of a jury, and praying the appointment of three coinmissioners to appraise the damages of each and all of the several owners of such lands, and showing the amount of land, giving the metes and bounds thereof, the purpose for which the same is to be taken, and the names of the several owners so far as the same are known to the city attorney. Five days' notice of the time and place wben such application will be presented to such judge, accompanied with a copy of such application, shall then be served on each owner in the cases when required and in the manner provided in section one of this chapter five. At the time and place designated, such judge shall bear all parties interested who appear, and shall appoint three disinterested and reputable freeholders of said county as such commissioners, by his order in writing, to ascertain and appraise the compensation to be made to the owners of or persons interested in the land so
found necessary to be taken, and fix the time and place for the first meeting of such commissioners.
SECTION 13. Sections eight, nine and ten of said chapter five are amended by striking out the word "jurors ” in each and every place where the same occurs therein, and inserting instead the word “ commissioners."
SECTION 14. Section eleven of said chapter five is sioners to pro- amended so as to read as follows: Section 11. The
commissioners shall take and subscribe the oath prescribed by the twenty-eighth section of the fourth article of the constitution, before entering on the discharge of their duties. A majority of them may adjourn the proceedings before them from time to time, in their discretion. They shall cause notice to be given to each perty interested, of the time when and the place where they will meet to consider the amount of compensation to which he is entitled, which notice shall be personally served on such party, or bis authorize:1 agent or attorney, or by leaving the same at bis residence or place of business, with a person of suitable age and discretion, at least six days before the time of such meeting. If such party is a non-resident of this state, or his residence is unknown, and he has no authorized agent or attorney in this state, such notice shall be published in a newspaper as aforesaid, for such length of time as the court or judge appointing said commissioners shall direct. The commissioners shall file proof of such no. tices, or of the appearance of such parties before them, either personally or by attorney, with their report. But it shall not be necessary to serve or publish notice of any subsequent meeting held pursuant to adjourn
ment. To view prem
SECTION 15. Section twelve of said chapter five is amended so as to read as follows: Section 12. The commissioners shall view the premises described in the petition, and hear the allegations of the parties, and shall appraise, ascertain and detesmine the value of each tract or parcel of land proposed to be taken, with the improvements thereon, and of each separate estate therein, and the damages sustained by the owner by reason of the taking thereof, and fix the amount of compensation to be made to each of such owners therefor; and in tising the amount of such compensation, said commissioners shall not make any allowance or deduction from the value of the real estate taken on account of any real or supposed benefits which the parties in interest may derive from the construction of
ises and determine value.
the proposed improvement, for which such real estate may be taken; but special benefits to the real estate adjoining the lands so taken, shall be allowed in deduction of any damages sustained by the owner to such adjoining real estate. In case of any building on the land, and proceedings shall have been taken as provided in sections eight, nine and ten, the said commissioners shall include the value of such building as estimated by them, less the proceeds of the sale thereof, or if taken by the owner at the value to remove,
in such case, they shall only include the difference between such value and the whole estimated value of such building. A majority of the cominissioners, all being present, shall be competent to determine all matters before them. The commissioners shall, within twenty days after viewing any of the lands so taken, make and file in the office of the clerk of the circuit court of such county, a report of their proceedings concerning such lands, setting forth the award made for each tract or parcel thereof, or separate estate therein, to the owner or owners thereof. The commissioners shall be entitled to such compensation as the court may direct, which shall be paid by the city.
SECTION 16. Section thirteen of said chapter five is Amended. amended by striking out the word "jurors” therein, and inserting instead "commissioners."
SECTION 17. Section fourteen of said chapter five is common counamended so as to read as follows: Section 14. W ben- improvement ever the commissioners shall have completed their du- to be taken. ties and filed the report of their proceedings and determivation as before provided, the common council may, if they shall deem it expedient, by resolution or ordinance, order such improvement to be made, and the land which has been so found necessary to be taken there for to be taken and used; and in such case the city shall be absolutely liable to the owner or owners, or parties entitled thereto, for all compensation that may be established against said city therefor; and the council may also in that case make an assessment of the compensation to be paid therefor with the costs of proceedings, or such part thereof as they shall determine to be just, upon the lands found by them to be directly benefited by such improvement in such proportion to the benefits enjoyed as they shall determine. If the council shall not deem it expedient to make such improvement, they may, by resolution, order all fur. ther proceedings to be discontinued.
SECTION 18. Section fifteen of said chapter five is Appeal may
made to circult amended so as to read as follows: Section 15. With
in ten days after the filing of the report of the commissioners in the office of the clerk of the circuit court, any party may appeal to the circuit court of Eau Claire county from any award made by the commissioners, by filing in the office of said clerk' a written notice of appeal. Upon receiving such notice, the appeal shall be considered an action pending in court, for trial there as other actions, and shall be entered by the clerk upon the records of the court by setting down the owner or owners of the land for which such award was made, and who are parties to the appeal as plaintiffs, and the city as defendant. Such appeal shall be tried by jory, unless a trial by jury is waived by both parties ; costs shall be allowed to the successful party on such appeal, and if in favor of the plaintiff, be added to the amount of the verdict; if in favor of the defendant, be deducted therelrom; and judgment shall be rendered thereon
according to the rights of the parties. Report of com SECTION 19. Section sixteen of said chapter five is mission to be amended so as to read as follows : Section 16. The rerecorded.
port of the commissioners shall be recorded by the clerk of the court, in whose office the same is filed, in the judgment book of such court, and at any time after the making of such award the city may set apart in its treasury, to the order of the owner or owners of the lands so taken, or pay the same to such owner or own. ers, or to the clerk of said court for the use of such owner or owners, the amounts awarded by the commissioners, and thereupon, may enter upon, take and use the land for the purposes for which it was condemned, and may obtain from either of said judges, upon twenty-four hours' notice, a writ of assistance to put its offcers or agents into possession of the same. If such city be in possession or put in possession of such land, pending an appeal, the owners or parties entitled there. to shall be entitled to receive the money paid into court or set apart in the city treasury on account of the award appealed from, without prejudice to the appeal taken, but if the city shall have appealed, such money shall only be so withdrawn by leave of court, upon filing a bond in such sum and with such surety as shall be approved by the court or judge, to repay the amount by which such award shall be abated on such appeal, with costs. If any defect of title to or incumbrance upon any parcel of the premises shall be suggested in said petition, or if any party to said proceeding or any person not a party shall petition to the said court, set