Application to

vacation.

or other state institution or improvement, the petition shall be signed by the governor or such other person as he shall direct, or as shall be provided by law.

1060. SEC. 3. If such petition be presented to a judge judge made in in vacation, the judge shall note thereon the day of presentation, and shall also note thereon the day when he will hear the same, and shall order the issuance of summons to each resident defendant, and the publication of notice to each non-resident defendant, and the clerk of the court shall at once issue the summons and give notice accordingly.

Summons and publication of notice.

1061. SEC. 4. Such summons shall be made returnable on such day and hour as the court or judge may fix and determine, not less than ten (10) days after the issuance of such summons, and the same shall be served in the same manner, as in other cases, at least ten (10) days before the return day thereof. When it appears that the owners or any of them, of the property sought to be condemned are nonresident, the court or judge shall order a notice to be published in some newspaper published in said county, addressed to such non-resident owner or owners, in which notice shall be stated the name of the petitioner or petitioners, a full and accurate description of the property sought to be taken or condemned, the purpose for which such condemnation is asked, and the time and place when such nonresident owner is required to appear, and the title of the court, or name of the judge before whom said application is to be heard. The court or judge shall also fix and determine when said notice shall be made returnable, but in no case shall it be made returnable in less than thirty (30) days, and the same shall be published at least four times in some weekly newspaper before the return' day thereof. If there shall be no weekly newspaper published in the county, in which such proceedings are had, the court or judge shall direct that said notice be published in some newspaper named by him, published at the nearest convenient place to such county."

1062. SEC. 5. Causes may be heard by such judges in vacation as well as in term time, but no cause shall be heard earlier than ten (10) days after service upon defendant, or upon due publication against non-residents. Any

shall be heard.

included in one

Amendments to

new parties.

number of separate parcels of property situate in the same when cases county, may be included in one petition, and the compen- Separate parcels sation for each shall be assessed separately, by the same or petition. different commissions or juries, as the court or judge may petition and direct. Amendment to the petition, or to any paper or record in the cause may be permitted whenever necessary to a fair trial and final determination of the questions involved. Should it become necessary at any stage of the proceeding to bring a new party before the court or judge, the court or judge shall have the power to make such rule or order in relation thereto as may be deemed reasonable and proper; and shall also have power to make all necessary rules and orders for notice to parties of the pendency of the proceeding, and to issue all process necessary to the execution of orders and judgments as they may be entered.

Proceedings

1063. SEC. 6. The court or judge may adjourn the proceedings from time to time, shall direct any future no- in court. tice thereof to be given that may seem proper, shall hear proofs and allegations of all parties interested touching the regularity of the proceedings, and shall, by an entry in its minutes, appoint a board of commissioners of not less than three freeholders, to ascertain and determine the necessity for taking such lands, franchises or other property, and to appraise and determine damages, and compensation to be allowed to the owner and person interested in the real estate or property proposed to be taken or damaged in such county, for the purposes alleged in the petition, and said court or judge shall fix the time and place for the first meeting of such commissioners. The said commissioners, Duties and before entering upon the duties of their office, shall take missioners. an oath to faithfully and impartially discharge their duties as said commissioners, and any one of them may administer oaths to witnesses produced before them; they may issue subpoenas and compel witnesses to attend and testify, and may adjourn and hold meetings for that purpose. They shall hear the proofs and allegations of the parties, and after viewing the premises, shall, without fear, favor or partiality, ascertain and certify the compensation proper to be made to said owner or parties interested, for the

powers of com

Certificate of

or assessment of compensation.

lands, real estate or claims to be taken or affected, as well as all damages accruing to the owners or parties interested in consequence of the condemnation of the same, taken or injuriously affected, as aforesaid. They shall make, subscribe, and file with the clerk of the court in which such proceedings are had, a certificate of their said ascertainment and assessment, in which such lands, real estate or claims shall be described, with convenient certainty and accuracy. The court or judge, upon such certificate or verdictof a jury as hereinafter provided, and due proof that such ascertainment compensation and separate sums, if any be certified or found to have been paid to the parties entitled to the same, or have been deposited to the credit of such parties in court, or with the clerk of the court, for that purpose, shall make and cause to be entered in its minutes, a rule, describing such lands, real estate or claims in manner aforesaid, such ascertainment of compensation, with the mode of making it, and each payment or deposit of the compensation as aforesaid, a certified copy of which shall be recorded and indexed in the recorder's office of the proper county, in like manner and with like effect as if it were a deed of conveyance from the said owners and parties interested, to the Upon entry of proper parties. Upon the entry of such rule the said petito become seized tioner shall become seized in fee except as hereinafter provided, of all such lands, real estate or claims described in said rule, as required to be taken as aforesaid, and may take possession of, and hold and use the same for the purposes specified in said petition, and shall thereupon be discharged from all claims for any damages by reason of any matter specified in such petition, certificate or rule of said Petitioner not to court or judge: Provided, any such right of way shall

rule petitioner

in fee.

have title to

mineral veins or deposits.

never give the petitioner any right, title or interest to any vein, ledge, lode or deposit found or existing in the premises condemned. And if at any time after an attempted or actual ascertainment of compensation under this act, or any purchase or by donation to said petitioner, of any lands, real estate or claims, for purposes specified in the petition, it shall appear that the title acquired thereby, to all or any part of such lands for the use of such petitioner, or if said assessment shall fail or be deemed defec

and how peti

ceed to perfect

tive, the said petitioner may proceed and perfect such title In what cases by procuring an ascertainment of the compensation proper tioner may proto be made to any person who has title, claim or interest title. in, or lien upon such lands, real estate or claims, and by making payment thereof in the manner hereinafter provided, as near as may be, and at any stage of such new proceedings, or of any proceedings under this act, the court or judge may by rule in that behalf made, authorize the said petitioner, if already in possession, and if not in possession to take possession of and use said premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such petitioner on account thereof. Provided, such petitioner shall pay a sufficient sum into court, or to the clerk thereof, to pay the compensation in that behalf when ascertained. Provided, further, that the judge of the court before or wherein any such proceedings are had, shall determine the amount such petitioner shall be required to pay or deposit pending any such ascertainment; and in every case where possession shall be so authorized, it shall be lawful for the owner to conduct the proceedings to a conclusion, if the same shall be delayed by the petitioner. The said commissioners shall each receive four (4) dollars per Compensation of day as compensation for each day actually employed, such compensation to be taxed by the court or judge. If any commissioner so appointed shall die, be unable or fail to serve, the court or judge may appoint another in his place, on reasonable notice of the application.

1064. SEC. 7. Any person, persons or company whose estate or interest is to be affected by the proceeding, may demand at the time of any hearing of such petition, and before the appointment of the commissioners herein provided, a jury of six freeholders residing in the county where such petition is filed, to ascertain, determine and appraise the damages or compensation to be allowed therefor, and thereupon said court or judge shall make an order for the drawing of such jury as herein provided.

1065. SEC. 8. In cases fixed for hearing of petition. in vacation, it shall be the duty of the clerk of the court. in whose office the petition is filed, at the time of issu

commissioners.

Judge to order jury on demand.

Selection of jury.

Challenges and manner of proceeding when panel exhausted.

Inspection of premises by

tion and verdict.

ing summons or making publication, to write the name of twenty-four disinterested freeholders of the county, on twenty-four separate slips of paper, each slip to contain but one name, and shall cause to be selected from said twenty-four names, six of said persons to serve as jurors; such selection to be made by lot and without choice or discrimination; and the said clerk shall thereupon issue venire directed to the sheriff of his county, commanding him to summon the six persons so selected as jurors to appear at the court-house in said county, at a time to be named in the venire.

1066. SEC. 9. The petitioner and every party interested in the ascertaining of compensation, shall have the same right of challenge of jurors as in other civil cases in the district and county court. If the panel be not full by reason of non-attendance, or be exhausted by challenges, the judge hearing such petition shall designate by name the necessary number of persons of proper qualification, and the clerk or judge shall issue another venire returnable instanter, and until the jury be full.

1067. SEC. 10.

When the jury shall have been so seJury: delibera- lected and taken an oath to faithfully and impartially discharge their duties, said jury shall at the request of either party go upon the land sought to be taken or damaged, in person, and examine the same, and shall then return into court, if the proceedings be in term time, and if in vacation, then before the judge, and the said court or judge shall preside in the same manner and with like power as in other cases; evidence shall be admitted or rejected by the court or judge, according to the rules of law, and at the conclusion of the evidence, the matters in controversy may be argued by counsel to the jury, and at the conclusion of the arguments, the court or judge shall instruct the jury in writing in the same manner as in cases at law. The jury shall retire for deliberation in charge of a sworn officer, the same as in other cases. When such jury shall have agreed upon a verdict, the same shall then be returned into court. If any such jury shall be unable to agree, it may be discharged by such court or judge, and thereupon another jury shall be summoned as soon as