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Sec. 5. County commissioners shall not fix rates.—No board of county commissioners shall hereafter have power to fix the rates or tolls at which water is to be furnished by the owners of any ditch or flume constructed for the purpose of conveying water.
SEO. 6. All acts or parts of acts inconsistent with this act are hereby repealed.
AN ACT to create a lien for miners and laborers in certain cases. (Approved February 1, 1879, p. 114.) SECTION 1. Miner to have lien upon mine for work done or material furnished.-That every miner or other person who, at the request of the owner or owners, or his or their agents, of any lode, lead, ledge, mine, or deposit bearing gold, cinnabar, or copper, or of any coal bank or mine, or at the request of any contractor or subcontractor, shall perform any labor whatever on said mine, or furnish any timber, rope, nails, or any other materials for timbering shafts or levels for the mine owned by such owner or owners, or who shall furnish any kind of materials for erecting any windlass, whims, or any other hoisting apparatus or machinery, or for any car-track, cars, tunnels, drifts, or openings thereon, or shall perform any labor on any tunnel, shall have a lien upon such lode, lead, mine, deposit, bank, or tunnel to secure the payment of the same.
SEC. 2. When labor is performed for contractor, owner to pay, when.—Every miner or other person doing and performing any work or furnishing any materials, as specified in section one of this act, under a contract, either express or implied, between the owner or owners of any mine, or his or their agent, and any contractor working on such mine, whether such work shall be performed or materials furnished as miner, laborer, or otherwise, whose demand for work so performed or material so furnished has not been paid, may deliver to the owner or owners of such mine or tunnel, or to his or their agent or superintendent, an attested account of the amount and value of the work and labor thus performed, or of the materials thus furnished and remaining unpaid, and thereupon such owner or owners, or his or their agent, shall retain ont of the first subsequent payments to such contractor, the amount so due for such work and labor, or materials furnished, for the benefit of the person so performing or purchasing the same.
SEC. 3. Duty of owner when account for labor is presented.—Whenever any account for labor performed or materials furnished, as specified in the last preceding section, shall be placed in the hands of the owner or owners of any mine or tunnel, or his or their agent, it shall be the duty of such owner or owners or agent to furnish such contractor with a copy of such papers, so that if there be any disagreement between such contractor or his subcontractor and the creditor of either, as the case may be, they may, by amicable adjustment or by arbitration, ascertain the sum due, if any; and if such contractor or subcontractor shall not, within ten days after the receipt of such papers, give such owner or owners or agent written notice that he intends to dispute the claim, or if ten days after giving such notice he shall refuse or neglect to have the matter adjusted as aforesaid, he shall be considered as assenting thereto; and such owner or owners or agent may pay the same when it becomes due, and for that purpose may deduct the amount out of any moneys due such contractor, who may in like manner deduct such amount from any moneys due by him to his subcontractor, in case such account or demand is against such subcontractor for work and labor performed or materials furnished as aforesaid.
SEC. 4. Amount due from contractor may be recovered, hou.—The amount which may be due from any contractor to his creditor may be recovered from said owner or owners by the creditor of said contractor in any action at law to the extent in value of any balance due by the owner or owners to his or their contractor under the contract with him, at the time of the notice first given as aforesaid, or subsequently, according to such contract or under the same.
SEC. 5. Person entitled to lien to make itemized statement and file same. Any person entitled to a lien under this act shall make an account in writing of the items of labor, skill, machinery, and material furnished, as the case may be, and after making oath thereto shall, within sixty days from the time of completing such labor and skill, or furnishing the last item of machinery or materials, file the same in the office of the clerk of the district court of the county or subdivision in which the lode, lead, ledge, mine, deposit, bank, or tunnel may be situated, for or upon wbich such labor, skill, machinery, or materials shall have been furnished; and also file at the same time a correct description of the property to be charged with said lien, which account and description so made and filed shall be recorded in a separate book, to be provided for that purpose by such clerk of court, and thereupon the same shall, from the time of the completion of the work or furnishing the last item of machinery or materials, and for one year thereafter, operate as a lien on the property charged in such description; when any work and labor has been performed or materials furnished as aforesaid under a written contract, the same or a copy thereof shall be filed with said account and description: Provided, That all lien claims for labor performed or materials furnished shall be concurrent liens upon the property charged, and shall be paid pro rata out of proceeds arising from the sale thereof, if the same shall be sold, or upon settlement without sale.
SEC. 6. Holder of lien may obtain judgment.-Any person holding such lien may proceed to obtain a judgment for the amount of his account thereon by civil action, and when any suit or suits shall be commenced thereon such lien shall continue until said suit or suits be finally determined and satisfied; and in all actions instituted under this act all persons claiming liens upon the property charged shall be made parties to such action or proceeding, and the rights of all parties therein shall be determined by the court, and such order made in regard thereto as shall preserve and protect the rights of all such parties under the provisions of this act.
SEC. 7. When lien is paid satisfaction thereof shall be entered.-Any person who shall have filed his account and perfected his lien under the provisions of this act, shall have received satisfaction of his claim or demand and the legal cost of his proceedings thereunder, he shall, upon the request of any person interested, and within six days after such request, enter satisfaction of his lien in the office where such account and lien is of record, which shall forever thereafter discharge, defeat, and release the same; and if any person holding a lien as aforesaid shall receive satisfaction as hereinbefore specified, or having been tendered the amount due on his claim or demand, with legal costs, shall not, within six days after receiving such satisfaction or tender of payment, enter satisfaction as aforesaid, he shall forfeit and pay to the person or persons aggrieved donble the amount of damages which may have been sustained in consequence of such failure or neglect: Provided, Ile shall have been requested in such case to enter satisfaction as aforesaid.
SEC. 8. This act to apply to oil wells, etc. The provisions of this act shall apply to oil wells or springs, iron and lead mines, as well as all other mines not herein specified, so far as the same may be applicable.
SEC. 9. This act shall take effect and be in force from and after its passage and approval.
CHAP. XCVII.—RIGHT OF WAY.
AN ACT concerning the right of way, easements, and other necessary means for the dovelopment of mines. (Approved March 3, 1881;
Sess. Laws, 1881, p. 124.) SECTION 1. Owners of mines to have right of way.—That the proprietor, owner, or owners of mining-claims, whether patented under the laws of the United States or held under the local laws and customs of this territory, shall have a right of way for ingress for the necessary purpose over and across the land or mining-claim, patented or otherwise, of others, as hereinafter provided.
SEC. 2. Same.-Whenever any such mine or mining-claim shall be so situated that it cannot be conveniently worked without a road thereto, or a ditch or a cut to convey the water therefrom, or without a flume to carry water and tailings therefrom, or without a shaft or tunnel thereto, which road, ditch, cut, or tunnel shall necessarily pass over, under, through, or across any lands or mining-claims owned or occupied by others, either under a patent from the United States or otherwise, then shall such first-mentioned owner or owners be entitled to a right of way for said road, ditch, flume, shaft, or tunnel over, under, through, and across such other lands or mining-claims upon compliance with the provisions of this act.
SEC. 3. Proceedings to obtain right of way.-Whenever the owner or owners of any mining-claim shall desire to work the same, and it is necessary, to enable him or them to do so successfully and conveniently, that he or they shall have a right of way for any of the purposes in the foregoing section, and such right of way shall not have been acquired by agreement between him or them, and the claim over, under, across, anıl upon which he or they seek to establish such right of way, it shall be lawful for him or them to present to the judge of the district court of the several counties and subdivisions of the territory of Dakota, in which such right of way or some part thereof sought to be enforced is situated, a petition praying that such right of way be awarded to him or them. Such petition shall be verified and contain a particular description of the character and extent of the right sought, a description of the mide or claim of the petitioner, and the claim or claims or lands to be affected by such right or privilege, with the names of the occupants or owners thereof; it may also set forth any tender or offer hereinafter mentioned, and shall demand the relief sought.
SEC. 4. Proceedings in court.-Upon the receipt of such petition and filling thereof with the clerk of such court, the judge shall direct a citation to issue, under the seal of such court, to the owners named in the petition of mining-elaims and lands to be affected by the proceedings, directing them and each of them to appear before the judge on a day therein named, which shall not be less than ten days from the service thereof, and show cause why such right of way should not be allowed as prayed for. Such citation shall be served on each of the parties in the manner prescribed by law for serving summons in ordinary proceedings at law.
SEC. 5. Judge shall appoint commissioners.-Upon the return day of the citation, or upon any day to which the hearing shall be adjourned, the judge shall proceed to hear the allegations and proofs of the respective parties; and if upon such hearing he is satisfied that the claims of the petitioner should be worked by means of the privilege prayed for, he shall make an order adjudging and awarding to the petitioner such right of way, and shall appoint three commissioners, who shall be disinterested parties and residents of the county, to assess the damages resulting to the lands or claims affected by such order.
SEC. 6. Assessinent of damage by commissioners.-The commissioners so appointed shall be sworn or affirmed to faithfully and impartially discharge their duties, and shall proceed without anreasonable delay to examine the premises, and shall assess the damage resulting from such right or privilege prayed for, and report the amount to the judge appointing them; and if such right of way shall affect the property of more than one person or company, such report shall contain an assessment of damages to each company or person.
SEC. 7. Judge may set aside report, etc.--For good cause shown, the judge may set aside the report of such commissioners and appoint three other commissioners, whose duties shall be the same as above mentioned.
SEC. 8. Petitioner entitled to right of way upon tender of payment.-Upon the payment of the sum assessed as damages, as aforesaid, to the persons to whom it shall be awarded, or a tender thereof to them, then the person petitioning as aforesaid shall be entitled to the right of way prayed for in their or his petition, and may immediately proceed to occupy the same, and to erect thereon such work and structures and make therein such excavations as may be necessary to the use and enjoyment of the right of way so awarded.
SEC. 9. Appeals.-Appeals from the assessment of the commissioners may be made and prosecnted in the proper district court by any party interested at any time within ten days after filing the report of the commissioners, and a written notice of such appeal shall be served upon the appellee in the same manner as summons are served in civil actions. The appellant shall file with the clerk of the conrt to which the appeal is made a bond, with sureties, to be approved by the clerk, in the amount of the assessment appealed from in favor of the appellee, conditioned that the appellant shall pay any costs that may be awarded to the appellee and abide any judgment that may be rendered in the cause.
SEC. 10. Time of appeal.- Appeals shall bring before the appellate court only the propriety of the amount of damages, and may be tried by the conrt or by a jury, as other cases in court.
SEC. 11. Prosecution of appeal not to hinder work.–The prosecution of any appeal shall not hinder, delay, or prevent the appellee from exercising all the rights and privileges mentioned in section eight of this act: Prorided, That the appellee shall file with the clerk of the court in which the appeal is pending a bond, with sufficient sureties, to be approved by the clerk, in double the annount of the assessment appealed from, conditioned that the appellee shall pay to the appellant whatever amount he may recover in the action, not exceeding the amount of such bond.
SEC. 12. When appellee to pay costs.-If the appellant recover fifty dollars more damages than the commissioners shall have awarded, or the appellee shall offer to allow judgment against him to be taken, the appellee shall pay the costs of the appeal, otherwise the appellant sliall pay such costs.
SEC. 13. Costs and erpenses, by whom paid.—The costs and expenses under the provisions of this act, except as herein otherwise provided, shall be paid by the party making the application: Prorided, however, that if the applicant shall, before the commencement of such proceeding, have tendered to the parties owning or occupying such lands or mining-claims a sum equal to or more than the amount of damages assessed by the commissioners, then all the costs and expenses shall be paid by the party or parties owning the lands or claims affected by such right of way, and who appeared and resisted the claims of the applicants..
SEC. 14. This act shall take effect and be in force from and after its passage and approval.
CHAP. XCVI.-LOCATION OF LODES.
AN ACT to amend chapter XXXI of the Political Code. (Sess. Laws, 1881, p. 123.) [This act was received at executive office February 28, 1881, at 5.30 p. m., and, not having been returned by govervor within the time prescribed by law, became a law without his approval.]
SECTION 1. Discoverer entitled to sixty days before recording. That section three of chapter XXXI of the Political Code be, and the same is hereby, amended by striking out the word "twenty”, where it occurs in the second line thereof, and inserting in lieu thereof the word "sixty".
SEC. 2. Name of locators.—That subdivision two of section three of said chapter be amended by adding, after the word “locator”, the words “or locators".
SEC. 3. Name of locators.—That section five of said chapter be amended by adding after the word "locator", where it appears in the fifth line thereof, the words or locators”,
SEC. 4. Marking boundaries.—That section six of said chapter be amended by adding, after the word "claim", the following: "and plainly marked with the name of the lode and the corner, end, or side of the claim that they respectively represent."
SEC. 5. Locators entitled to sixty days to perform labor.—That section eight of said chapter be amended by striking out the word “thirty" and inserting in lien thereof the word “sixty".
SEC. 6. Time of doing annual work.—That section fourteen of said chapter be amended by adding at the end of said section, the following: “Provided, That the period within which the work required to be done annually on all unpatented claims so located shall commence on the first day of Jannary succeeding the date of location of such claim.
SEO. 7. That section fifteen of said chapter be, and the same is hereby, repealed.
AN. ACT relating to water-rights. (Sess. Laws, 1881, p. 226.) [This act was received at executive office February 28, 1881, at 5.30 o'clock p. m., and, not having been returned to the council where it originated, became a law without the governor's approval.]
SECTION 1. Party holding land shall have right to water.-That any person or persons, corporation, or company who may have or hold a title or possessory right or title to any mineral or agricultural lands within the limits of this territory shall be entitled to the usual enjoyment of the waters of the streams or creeks in said territory for unining, milling, agricultural, or domestic purposes: Procided, That the right to such use shall not interfere with any prior right or claim to such waters when the law has been complied with in doing the necessary work.
SEC. 2. May conduct water from remote stream.-That when any person or persons, corporation, or company owning or holding land as provided in section one of this act shall have no available water facilities upon the same, or whenever such lands are too far removed from any stream or creek to so use the waters thereof, as aforesaid, such person or persons, corporation, or company shall have the right of way through and over any tract or piece of land for the purpose of conducting and conveying said water by means of ditches, dykes, flumes, or canals for the purpose aforesaid.
SEC. 3. Right of way limited.—That such right to dig and construct such ditchés, dykes, flumes, and canals over and across the lands of another shall only extend to so much digging, cutting, or excavation as may be necessary for the purposes required.
SEC. 4. Controversies, how determined. - That in all controversies respecting rights to water, under the provisions of this act, the same shall be determined by the date of appropriation as respectively made by the parties, whether for mining, milling, agricultural, or domestic purposes.
SEC. 5. Deterioration or diminution not to be considered. That the waters of the streams or creeks of the territory may be made available to the full extent of the capacity thereof for mining, milling, agricultural, or domestic purposes, without regard to deterioration in quality or diminution in quantity, so that the same do not materially affect or impair the rights of the prior appropriator.
SEC. 6. Penalty for damaging lands.—That any person or persons, corporation, or company damaging or injuring the lands or possessions of another by reason of cutting or digging ditches or canals or erecting flumes, as provided by section two of this act, the party so committing such injury or damage shall be liable to the party so injured for the actual damage occasioned thereby.
Sec. 7. Abandoned water-right, bridging ditches, etc.—That this act shall not be so construed as to impair or in any way or manner interfere with the rights of parties to the use of the waters of such streams or creeks acquired before the passage of this act: Prorided, That all water-rights or ditches that have not been used or worked upon for one year next prior to the passage of this act shall be deemed abandoned and forfeited, and subject to appropriation anew. That any person or persons, corporation or company, who may dig any ditch or canal, dyke or flume, over or across any public road, trail, or highway, or who use the waters of such ditch, dyke, flume, or canal, shall be required to bridge the same and keep the same in good repair at such crossing or other places where the water from any such ditch, dykes, flumes, or canals may flow over or in anywise injure any road, trail, or highway, either by bridges or otherwise.
SEC. 8. Penalty for failure to comply with provisions of section 7.—That any person or persons, corporation, or company offending against section seven of this act, on conviction thereof, shall forfeit and pay for every such offense a penalty of not less than twenty-five dollars nor more than one hundred dollars, to be recovered, with costs of suit, in civil action, in the name of the territory of Dakota, before any court having jurisdiction. One-half of the fine so collected shall be paid into the county treasury for the benefit of the common schools of the county in which the offense was committed, and the other half shall be paid to the person or persons informing the nearest magistrate that such offense has been committed. All such fines and costs shall be collected without stay of execution, and sach defendant or defendants may, by order of the court, be confined in the county jail until such fine and costs have been paid.
SEC. 9. Manner of locating water-rights. That any person or persons, corporation, or company appropriating the waters of any streams or creeks in this territory sball turn the water from the channel of such creek or stream, and construct at least twenty feet of ditch or flume, within thirty days from the date of appropriation, and turn the water therein, and construct at least twenty rods of said ditch or flume, if needed, within six months from the date of such appropriation, and turn the water therein ; and within twenty days from the date of location the locator or locators of such water-right shall file a location certificate thereof with the register of deeds in the proper county within which such water-right is sitnated; a copy of such certificate shall be posted at or near the head of such ditch, flume, or canal, and shall contain the name or names of the locators, the date of location, number
of inches of water claimed or appropriated, and the purpose of the appropriation, and in no case shall the number of inches of water claimed exceed the conveying capacity of the first twenty feet of the flume or ditch, nor shall said ditch or flume be enlarged to the prejudice or injury of a subsequent appropriator before such enlargement.
SEC. 10. When abandoned.-A failure to commence the construction of such ditch or flame for sixty days after location, and prosecute such ditch, canal, or flume to a final completion, without unnecessary delay, such appropriation shall be deemed abandoned.
SEC. 11. This act shall take effect and be in force from and after its passage and approval.
AN ACT in relation to the execution of the judgment in civil actions. (Rev. Codes, p. 534.)
SECTION 322. Exempt from all process.—Except as hereinafter provided, the property mentioned under this heading is exempt from attachment or mesne process, and froin levy and sale on execution, and from any other final process issued from any court.
SEC. 323. Absolute exemptions.—The property mentioned in this section is absolutely exempt from all such process, levy, or sale:
1. All family pictures.
4. The family bible, and all school-books used by the family, and all other books used as a part of the family library, not exceeding in value one hundred dollars.
5. All wearing apparel and clothing of the debtor and his family.
6. The provisions for the debtor and his family necessary for one year's supply, either provided or growing, or both, and fuel necessary for one year.
7. The homestead, as created, defined, and limited by law.
SEC. 324. Additional exemptions.-In addition to the property mentioned in the preceding section, the debtor may, by himself or his agent, select, from all other of his personal property not absolutely exempt, goods, chattels, merchandise, money, or other personal property, not to exceed in the aggregate fifteen hundred dollars in value, which is also exempt, and must be chosen and appraised as hereinafter provided. SEC. 325.
4. The tools and implements of any mechanic, whether a minor or of age, used and kept for the purpose of carrying on his trade or business, and, in addition thereto, stock in trade not exceeding two hundred dollars in value. The library and instruments of any professional person, not exceeding six hundred dollars in value.
SEC. 326. Those by number chosen ; by value appraised.-All the articles enumerated in the preceding section which are exempt by limitation of number must be chosen by the debtor, his agent, or attorney; so, also, all property exempt by limitation of value must be determined by an appraisment made under the direction of the sheriff or other officer.
REVISED LAWS OF 1874-'75. . AN ACT for perfeoting titles to quartz-claims in the county of Idaho. (Sess. Laws, 1865–66, p. 201.) SECTION 1. That all transfers of quartz-claims in the county of Idado, made by bill of sale, without acknowledg. ment by a proper officer, prior to the passage of this act, shall be full and valid in law in all cases when the person purchasing has taken possession of the same, either in person or constructively.
SEC. 2. This act to take effect and be in force from and after its approval by the governor.
AN ACT providing for the taking effect of certain acts; for continuing in force certain acts; for repealing certain acts; for the
appointment of a revisory commission, and defining their authority and duties; and making an appropriation for the payment of the printing and publishing of the Code provided for by law; and for the distribution of the statutes of Idaho. (Approved January 15, 1875; Rev. Laws, 1. 870.)
SECTION 3. That said commission are hereby further empowered and authorized to carefully examine each and every act of the legislative assembly of the territory of Idaho of a public character, passed at the first second,