for lease which has been issued as a renewal of any lease in full force and effect prior to May 26, 1879, may apply in writing to the chairman of the board of county commissioners, or supervisors, as the case may be to have the land embraced in his said lease appraised for the purpose of sale. All educational lands in Nebraska which were settled upon occupied and improved prior to the first day of July 1897 may be sold to the persons who settled upon, occupies and improved said lands and each person who made such settlement and improvements prior to the first day of July 1897 may purchase the land so settled upon occupied and improved by him and not exceeding one-quarter section of land and the purchase of lands by said settlers may be inade by applying in writing to the chairman of the county board of supervisors or commissioners to have the land so settled upon occupied and improved by him appraised for the purpose of sale.

And it shall be the duty of said county commissioners, or a majority of them, or if the county is under township organization, three of the supervisors to be designated by said board from among their number, or a majority of such designated supervisors to view the land so desired to be purchased by such lessee or by such settler, occupant or applicant, and return a true and correct value of said lands under oath. The material facts of such return shall be reported to the said board of county commissioners or supervisors and entered upon the record books of their proceedings, which appraisement, record and proceeding shall be subject to review and approval by the board of educational lands and funds before the same shall become effective. After the foregoing proceedings have been had, the applicant to purchase may pay to the county treasurer, the appraised value of said land, and shall then be entitled to receive a deed for the same, upon forwarding the proper evidence of such appraisal and payment of the purchase price to the Commissioner of Public Lands and Buildings; Provided; that such applicant to purchase may, at his option, pay any sum not less than one-tenth of said purchase price if the land be prairie land, nor less than one-half of said purchase price if the land be timber land, and upon the forwarding of such application to purchase, abstract of sale showing description of land, amount of sale, amount paid, amount unpaid, and name of purchaser with the duplicate of all receipts issued by the county treasurer to such applicant to purchase, to the Commissioner of Public Lands and Buildings, the applicant shall be entitled to a contract of sale as provided in section 9870B. Provided; further, that no such lands shall be sold for less than seven dollars per acre and the applicant to purchase shall pay the sum of $3.00 per day and five cents per mile for each mile necessarily travelled to each appraiser in the making of such appraisal; Provided, further that the pro rata proportion of the rental for the unexpired time for which said rental has been paid in advance shall be credited on the contract of purchase, such purchaser also to pay all necessary costs of review.

History. This section inserted here, 1905, H. R. 198, sec. 1; in force July 1.

9870b. Certificate of purchase.

Upon any public or private sale of land under contracts for lease of land which were in full force and effect prior to May 26, 1879, had under this act upon which full payment has not been made as herein provided, the Commissioner of Public Lands and Buildings shall issue a certificate of purchase with the seal of his office thereto attached showing the land purchased, the amount paid, the amount due, and the time when the interest and principal are due and upon payment of such amount according to law the purchaser or his assigns shall be entitled to a deed of said land as provided by section 1966 [9866] of this act; Provided, that the Commissioner of Public Lands and Buildings shall cause to be

furnished the necessary blanks and reasonable rules and regulations to carry this act into effect.

History. This section inserted here, 1905, H. R. 198, sec. 1; in force July 1.

9870c. Limitations on application of act.

It is the intention of sections 9870A, and 9870B, that the same shall only apply to and be in force and effect to give validity to bona fide owners of contracts for lease of educational lands which were in full force and effect prior to May 26, 1879, so that said owners may perfect their title according to the terms and provisions of the laws of the State of Nebraska, which were in force and effect prior to May 26, 1879 under and by virtue of the laws of the State of Nebraska and under which said law then in force they obtained said contracts for leases aforesaid And also to the settlers and occupants mentioned in section 9870A hereof and to the lands occupied by such settlers.

History. This section inserted here, 1905, H. R. 198, sec. 1; in force July 1.

Sec. 9896a. An act providing that where patents have been or may be issued by the state of Nebraska to a person who has died previous to the issuance of such patent it shall operate to vest the title in the heirs, devisees, or assignees of such deceased patentee. Roberts's title bill. 1905, H. R. 21; in force July 1.

9896a. Title to lands on death of patentee.

Where patents for public lands have been or may be issued, in pursuance of any law of the State of Nebraska, to a person who had died, or who hereafter dies, before the date of such patent, the title to the land designated therein shall inure to and become vested in the heirs, devisees, or assignees of such deceased patentee as if the patent had issued to the deceased person during life. History.-Laws 1905, H. R. 21, sec. 1; in force July 1.

9902. Trustees of state cemetery-Powers.

The general control and management of the affairs of said cemetery shall be vested in a board of three trustees, who shall be a body corporate with power to sue and be sued; to contract and be contracted with; acquire; hold and convey, both real and personal property for all purposes consistent with the provisions of this act. Said trustees shall be elected at the general city elections

of the city of Lincoln, Nebraska, in manner following: At the general election of said city to be held in the year 1905, and every six years thereafter one of said trustees shall be elected for a term of six years; at the general city election of said city to be held in the year 1907, and every six years thereafter, one of said trustees shall be elected for the term of six years; at the general city election of said city to be held in the year 1909, and every six years thereafter, one of said trustees shall be elected for the term of six years. Provided, that incumbents in office whose terms expire subsequent to the general city election of said city for the year 1905, shall be privileged to continue in office until their successors are elected and qualified as herein provided; those whose terms shall first expire shall be superseded by those first elected under provisions of this act. Said trustees shall enter upon the duties of their office on the first Tuesday succeeding their election. In the event of a vacancy occurring among the members of said board of trustees, said vacancy shall be filled by nomination by the mayor and confirmation by the city council of the City of Lincoln, Nebraska, and such appointment shall continue for the unexpired term.

History.—Amended 1905, H. R. 422; in force April 3.

9904. Division into lots-Sale of lots.

Said trustees shall cause said lands to be laid off and platted into lots of suitable size by a competent surveyor to be by them selected, and said lots shall be sold upon such terms, and at such prices as said trustees may prescribe, for burial purposes; the proceeds of such lots shall be devoted, under the direction of said trustees, to the improvement and ornamentation of said grounds, and for such other purposes consistent with the provisions of this act as they may determine; Provided. That the said trustees shall reserve such an amount of ground in said cemetery as shall be necessary for the burial of all deceased inmates of the various state institutions which now are, or hereafter may be, located at said city of Lincoln.

History.-Amended 1905, H. R. 122; in force July 1.

Sec. 9910. An act to authorize the state board of public lands and buildings to lease state property under certain circumstances. Dimery's bill to lease state property. 1905, S. F. 206; in force July 1.

9940. Lease of state buildings or land.

Whenever any building or buildings or lands owned by this state shall become vacant and not used for State purposes, They may be used by the Board of Public Lands and Buildings to relieve over-crowded conditions of other institutions of similar character or the State Board of Public lands and Buildings may, in its discretion, lease in writing said building or buildings or lands to any person or persons for any lawful purpose. Said State Board of Public Lands and Buildings shall coilect all rents accruing from the leasing of such building or buildings or lands and pay the same into the State Treasury. Provided, however, that the State Board of Public Lands and Buildings shall in no case rent or lease any building, or buildings or lands of this State for any purpose that will be injurious to said building or buildings or lands. History.-Laws 1905, S. F. 206, sec. 1; in force July 1.

9953. May lay out and construct a railroad.

Such corporation shall be authorized and empowered to lay out, locate, construct, furnish, maintain, operate and enjoy a railroad with single or double tracks, with such side tracks, turnouts, offices, and depots as shall be necessary, between the places of the termini of the said road, commencing at or within, and extending to or into any town, city or village, named as the termini of said road, and construct branches from the main line to other towns or places within

the limits of this state. * Provided further that any railroad company heretofore organized or hereafter to be organized for the construction and operation of a railroad whether by steam or other motive power, shall have the right and power to transmit over its right of way currents of electricity for the purpose of operating telegraph and telephone lines and for the purpose of supplying power for the use of said railroad and the use of others.

History. All after * added 1905, H. R. 166, sec. 1; in force March 25.

9967. Condemnation-Compensation for property appropriated.

Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may take, hold, and appropriate so much real estate as may be necessary for the location, construction, and convenient use of its road, including all necessary grounds for stations, buildings, work shops, depots, machineshops, switches, side-tracks, turn-tables, and waterstations; all materials for the construction and repair of said road and its appurtenances; and a right of way over adjacent lands, sufficient to enable such company to construct and repair its road, and a right to conduct water by aqueducts, and the right of making proper drains; Provided, That the lands so held, taken, and appropriated, otherwise than by the consent of the owner, shall not exceed two hundred feet in width, except for wood and water stations, and depot grounds, unless where greater width is necessary for excavations, embankments, or depositing waste earth; and Provided further, That no appropriation of private property, for the use of any corporation provided for in this subdivision, shall be made until full compensation therefor be first made or secured to the owners thereof; * and Provided further, That any railroad company heretofore organized or that may. hereafter be organized under said chapter 16 [4116 et seq., 9950 et seq.] shall have the power and right to construct and operate inter-urban railroads, using motive power other than steam, and in the construction and operation of said interurban railroads shall have all the powers of eminent domain contained in said chapter [9972 et seq.].

History. All after added 1905, H. R. 166, sec. 2; in force March 25.

9967

14. Eminent domain-Neise as consti tuting peculiar damage. 57 C. L. J. 8.

15. After the lapse of thirty years every presumption is in favor of the correctness of condemnation proceedings. Roberts v. Sioux City & P. R. Co., Neb.; 102 N. W. R. 60.

16. Ordinarily the land owner can not have the improvements made by the railroad company awarded to him as part of the value of the land taken. Where, however, such improvements consisting of roadbed and tracks are made on the land of another under a contract arrangement or agreement with third parties, to be used for private purposes, the law relative to the seizure of property for public use does not apply. The rights of parties in such a case are to be measured by legal principles generally applicable to improvements in the nature of trade fixtures by a tenant or licensee in the possession and use of real estate. Omaha Bridge Co. v. Whitney, Neb.; 99 N. W. R. 525.

17. Title by adverse possession can not be acquired on the right of way of a government grant railroad. McLucas v. St.

19. The use for agricultural purposes, such as grazing and cultivation, by adjoining land owners of otherwise unused and unfenced parts of the right of way of a railroad company is not inconsistent with or adverse to the enjoyment of the easement. Roberts v. Sioux City & P. R. Co., Neb.; 102 N. W. R. 60.

20. Where a railroad company purchases land by warranty deed and uses it for right of way and depot purposes it has the exclusive right to the possession and use of all of such lands as against the owner of adjacent lands. It is for the company to determine how much is necessary for depot and right of way purposes. Hull v. Kansas City & O. Ry. Co., Neb.; 98 N. W. R. 47.

9973. Right of way-Appraisement of damages.

If the owner of any real estate, over which said railroad corporation may desire to locate its road, shall refuse to grant the right of way through his or her premises, the county judge of the county in which said real estate may be situated, as provided in this subdivision, shall upon the application of either party direct the sheriff of said county to summon six disinterested freeholders of said county, to be selected by said county judge, and not interested in a like question, unless a smaller number shall be agreed upon by said parties, whose duty it shall be to carefully inspect and view said real estate, and shall hear either party interested therein in reference to the amount of damages when they are so inspecting and viewing said real estate and thereafter they shall assess the damages which said owner shall sustain by the appropriation of his or her land to the use of said railroad corporation, and make report in writing to the county judge of said county, who, after certifying the same under his seal of office, shall transmit the same to the county clerk of said county for record, and said county clerk shall file, record, and index the same in the same manner as is provided for the record of deeds in this state. And such record shall have the like force and effect as the record of deeds in pursuance of the statute in such case made and provided. And if said corporation shall, at any time before it enters upon said real estate, for the purpose of constructing said road, pay to said county judge for the use of said owner the sum so assessed and returned to him as aforesaid, it shall thereby be authorized to construct and maintain its said road over and across said premises. Provided, That either party may have the right to appeal from such assessment of damages to the district court of the county in which such lands are situated within sixty days after such assessment. And in case of such appeal, the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified to the county clerk, to be filed and recorded as hereinbefore provided in his office. But such appeal shall not delay the prosecution of the work on said railroad if such corporation shall first pay, or deposit with such county judge, the amount so assessed by said freeholders. Such railroad company shall in all cases pay the costs of the first assessment. Provided, That if on appeal, the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal; Provided further, That either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited, shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court. And provided further, * That any railroad company desiring to acquire by condemnation proceedings the right to construct and operate its railroad with certain restrictions as to manner of operation or as to motive power, may in its petition to have property condemned set forth the manner in which and the motive power with which it proposes to operate its railroad and in such case in estimating the damages to property not taken the appraisers shall take into consideration the limitation set forth in said petition as to manner of operation and motive power and upon appeal a jury shall in estimating damages to property not taken take such limitations of manner of operation and motive power into consideration.

History. Amended and all after * added, 1305, H. R. 166, sec. 4; in force March 25.

72. Money awarded by freeholders or by the court on appeal stands in place of the land and belongs to lienholders to the extent of the value of their liens. On appeal by the mortgagee the question to be tried is the value of his lien on the property.

An appeal by the mortgagee does not af fect the land owner against whom summons has not been issued. If the land owner is not a party, the corporation may have him brought in. A land owner failing to appeal is conclusively bound by the