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and the rails thereof, shall be constructed in such manner, and of such gauge, size and pattern, as to impair or obstruct as little as practicable the ordinary travel on said streets; and provided further, that the said railroad shall not be constructed upon the bedded or faced parts of the aforesaid turnpike road without the consent of two-thirds in value of the stockholders of the Camden and Moorestown and the Moorestown and Mount Holly turnpike companies; and that, if constructed on or along any other part of said turnpike roads, it shall be so made as not to obstruct the proper drainage of said turnpike roads, or unnecessarily interfere with the ordinary travel thereon; and said railroad shall be constructed of the same width that vehicles and carriages are now required by law to be built, and the rails shall be laid in such a manner that ordinary vehicles and carriages can be driven upon said road; and that before the said railroad shall be constructed upon said turnpike roads, or any part thereof, the said corporation," hereby created, shall pay to said turnpike companies all damages which they will sustain by reason of the construction of any portion of said railroad upon the land occupied by or appertaining to said companies; and also provided further, that in crossing the railroad of "The Camden and Amboy Railroad and Transportation Company,” or of “ The Camden and Atlantic Railroad Company," the said railroad, hereby authorized to be constructed, shall be made at such intersection on the level of those railroads, and the cuts in the rails thereof, and the crossings and connections shall be made in the best and most approved manner, and so as not materially to interfere with or obstruct the travel thereon.
7. And be it enacted, That when said company or its agents cannot agree with the owner or owners of such required land, for the use or purchase thereof, or when by the legal incapacity or absence of such owner or owners, no such agreement can be made, a particular description of the land so required for the use of said company in the construction of said road, shall be given in writing, under
Proceedings in case company and owners cannot agree.
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, commis
sioners 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
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 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 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 of the duties prescribed 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 themselves 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 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 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
Proceedings on appeal.
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, Proviso. 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 mak. ing 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 cir. cuit 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.
Company to construct
What real estate may be held.
9. And be it enacted, That it shall be the duty of the said and keep in 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.
10. And be it enacted, That the said company may purchase, have and bold 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 enjoy. 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.
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.
12. And be it enacted, That the president and directors of to purchase said company shall have power to have constructed, or to
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