such sums, prices, rents, tolls, and rates, as shall be agreed upon between the parties; and to lay down, maintain, and operate, such water mains, conduits, leads, and service pipes as shall be necessary to supply any building, village, town, or city, with water; and the grantee of any such corporations, or purchaser of the said property, franchise, rights and privileges, under and by virtue of any judicial sale, shall take and hold the same as fully and effectually, to all intents and purposes, as the same were held and enjoyed by such corporations. [The word "prices " in the fourteenth line is omitted in the printed code.] and complete legislative con Same, 25. SEC. 1240. Such corporation shall take, hold, and enjoy the Must comprivilege of utilizing and improving the water power, and the mece in two rights, powers and privileges aforesaid, which shall be specifically in five years: mentioned and described in its articles of incorporation; pro- trol of corporavided, it shall proceed in good faith to make the improvements tion retained. and employ the powers in its said articles of incorporation mentioned, and shall, within two years from the date of its organization, provide the necessary capital, complete the preliminary and actually commence the work of improving and utilizing the water power, and furnishing the supply of water so mentioned in its articles of incorporation; and said water works and canals shall be completed within five years from the time when said corporation has been organized; and, provided further, that the rights, powers, and privileges conferred by this chapter shall be at all times subject to legislative control. surveys, CHAPTER 4. TAKING PRIVATE PROPERTY FOR WORKS OF INTERNAL IMPROVE MENT. R. 1314. SECTION 1241. Any railway corporation organized in this state, By railway: or chartered by or organized under the laws of the United States limit of or any state or territory, may take and hold, under the provisions of this chapter, so much real estate as may be necessary for the location, construction, and convenient use of its railway, and may also take, remove, and use for the construction and repair of said railway and its appurtenances, any earth, gravel, stone, timber, or other materials, on or from the land so taken; the land so taken otherwise than by the consent of the owners, shall not exceed one hundred feet in width, except for wood and water stations, unless where greater width is necessary for excavation, embankment, or depositing waste earth. [As amended by inserting the words in the second and third lines commencing "or chartered by " and ending "or territory;" 17th G. A., ch. 126.] The provisions of this chapter ap- The benefit of these provisions is ply as well to railways operated by not extended to foreign corporations: animal power as to those operated by ¦ Holbert v. S. L., K. C. & N. R. Co., steam: City of Clinton v. C. & L. 45-23. [Decided before the amendH. R. Co., 37-61. ment of the section.] Dams constructed to ob 12 G. A. ch. 117, 21. The use for which the property is authorized to be taken, although for private profit, is a public one, and the taking of private property therefore is not unconstitutional. (Arguendo): Stewart v. Board of Supervisors, 30-9. The company is not limited to fifty feet on each side of its track, but the track may be located anywhere on the one hundred feet: Stark v. S. C. & P. R. Co., 43-501. Timber standing upon the property taken for right of way, other than that necessary for the construction of the railway, remains the property of the owner of the land: Preston v. D. & P. R. Co., 11-15. It would seem that the company may sink wells on its right of way, for the purpose of supplying its engines with water, and would not be liable in damages for thus diverting percolating water from a spring upon the adjoining land of the person granting the right of way: Hougan v. M. & St. P. R. Co., 35-558. The right of way over land for a railway, is an incumbrance for which a grantee of the land may recover on a covenant against incumbrances, although he knew of the existence of such right of way at the time of purchasing: Barlow v. McKinley, 24-69. SEC. 1242. It may, also, take and hold additional real estate at its water-stations, for the purpose of constructing dams and formtain water: lim- ing reservoirs of water to supply its engines. Such real estate itation on right. shall, if the owner requests it, be set apart in a square or rectangular shape, including all the overflowed land, by the commissioners as hereafter provided; but the owner of the land shall not be deprived of access to the water or the use thereof in common with the company on his own land. And the dwelling-house, outhouse, orchards, and gardens of any person shall not be overflowed or otherwise injuriously affected by any proceeding under this section. Pipes laid down and kept in re pair: damages caused recovered by suit. Same, ? 2. Sheriff to sum mon jury on de SEC. 1243. Any such railway corporation may lay down pipes through any land adjoining the track of the railway, not to a greater distance than three-fourths of a mile therefrom, unless by consent of the owners of the land through which the pipes may pass beyond that distance, and maintain and repair such pipes, and thereby conduct water for the supply of its engines from any running stream; and shall, without unnecessary delay, after laying down or repairing such pipes, cover the same so as to restore the surface of the land through which they may pass to its natural grade; and shall, as soon as practicable, replace any fence that it may be necessary to open in laying down or repairing such pipes; and the owner of the land through which the same may be laid, shall have a right to use the land through which such pipes pass in any manner so as not to interfere therewith; said pipes shall not be laid to any spring, nor be used so as to injuriously withdraw the water from any farm; provided, that such corporation shall be liable to the owner of any such land for any damages occasioned by laying down, regulating, keeping open, or repairing such pipes, such damages to be recoverable from time to time as they may accrue in any ordinary action in any court of competent jurisdiction. MANNER OF CONDEMNATION. SEC. 1244. If the owner of any real estate, necessary to be mand of either taken for either of the purposes mentioned in the three preceding sections, refuse to grant the right of way, or other necessary interest 12 G. A. ch. 117. in said real estate required for such purposes, or, if the owner and party: proceed- the corporation cannot agree upon the compensation to be paid for the same, the sheriff of the county in which said real estate may be situated, shall, upon the application of either party, appoint six disinterested freeholders of said county, not interested in a like question, who shall inspect said real estate and assess the damages which said owner will sustain by the appropriation of his land for the use of said corporation, and make report in writing to the sheriff of said county, and if said corporation shall, at any time before it enters upon said real estate for the purpose of constructing said railway, pay to said sheriff for the use of said owner, the sum so assessed and returned to him as aforesaid, it may construct and maintain its railway over and across such premises. [The word "three" in the second line is not in the original. It is left as having probably been inserted by the editor.] The damages here contemplated are should be estimated, although such the just compensation provided premises are divided by a street or for by Const., art. 1, § 18. The own-highway: Renwick v.D. & N.W.R.Co., er is to have a fair equivalent in 49-664; and where the right of way money for the injury done him by passes through a farm the owner may the taking of his property. It is the show as damages the depreciation in right of way which is appropriated, value of the whole farm, and is not not the fee in the land, but the right limited to the damage to the governof way is such as is peculiar to a rail- mental subdivision through which the road, and is the right to all freedom road runs: Hartshorn v. B. C. R. & in locating, constructing, using and N. R. Co., 52-613 repairing such road and its appurte nances, and taking and using for that purpose only, any earth, gravel, stone, timber, &c., on or from the land taken, and the right to make cuts, embankments, &c.; and inc.udes the rights incident to rapid locomotion, as against the owner of the fee. seems that the right of way is intended to be in perpetuity: Henry v. D. & P. R. Co., 2-288. It The question as to the proper measure of damages in such cases discussed and the true measure declared to be the difference between the market value of the land entire, and its n arket value after the right of way is carved out; (following Sater Burlington, &c., Plank Roud Co.. 1386.): Ibid. The amount of damage to be allowed is what will compensate plaintiff for the appropriation of the right of way. It may be more or less than the value of the property taken: Gear v. C. C. & D. R. Co., 39-23. The damages are not limited to the value of the land taken but include such as result proximately from the use for which it is taken: Kucheman v. C. C. & D. R. Co., 46-366, 376. Damage to other property of the same owner, not crossed by the right of way, is not to be taken into account: Fleming v. C. D. & M. R. R. Co., 34-353. But damages to the entire premises necessarily and properly used by the owner in his business Where the damages to a lease-hold estate are to be assess d, the proper measure of damages is the difference in value of the annual use of the property, before taking and after. Renwick v. D. & N. W. R. Co., 49-664. Increased danger of loss by fire is an element of damage for which compensation should be male: Small v. C. R. I. & P. R. Co., 50-338, 344. The cost of building additional fence, and keeping the same in repair, should not be allowed as part of the damages: Henry v. D. & P. R. Co., 2-258; Kennedy v. D. & P. R. Co., 2-521; Hanrahan v. Fox, 47102. Negligent construction of the road and damages consequent thereupon, are not to be considered in assessing camages: King v. Iowa Midland R. Co. 34-458. The obstruction of a public highway is not a proper element of compensation to the owner of the property in this proceeding: Gear v. C. C. & D. R. Co., 43-83; Fleming v. C. D. & M. R. Co., 34-353. The method provided for ascertaining and compelling the payment of the damages is exclusive, and none other can be pursued. But the owner is not deprived of his right to bring action for the possession of his property, when taken wi hout compensation: Daniels v. C. & N. W. R. Co., 35-129. Jury to assess owner. R. 1316. If the company enter upon the land | priation, with interest thereon to date before the damages are paid, they of judgment: Daniels v. C. I. & N. may be treated as trespassers. The R. Co., 41-52. owner is not compelled to resort to an injunction, or an action for the amount: Henry v. D. & P. R. Co., 10-540. The proceedings may be instituted by the land owner after the railway is completed: Hibbs v. C. & S. W. R. Co., 39-340, also by the railway company; and in such case the proper measure of damages is the value of the land at the time of its appro- | The phrase "owner of any real estate," includes a mortgagee, and if not made a party to the proceedings, he is not bound thereby: Severin v. Cole, 38-463. These proceedings are not applicable as against foreign corporations: Holbert v. St. L. K. C. & N. R. Co, 45-23. (But see the amendment made in § 1241 by 17th G. A., ch. 126.) SEC. 1245. The application to the sheriff shall be in writing, and the free holders appointed shall be the commissioners to assess all damages to the owners of real estate in said county, and said corporation, or the owner of any land therein, may, at any time after their appointment, have the damages assessed in the manner herein prescribed by giving the other party five days' notice thereof in writing, specifying therein the day and hour when such commissioners will view the premises, which shall be served in the same manner as original notices. Where a mortgage upon the prop-| Sererin v. Cole, 38-463; and see erty appears of record, notice must Cochran v. Ind. Sch. Dist., dc., 50be given to the mortgagee, or he will 663. not be bound by the proceedings: SEC. 1246. If the owner of any lands is a minor, insane, or Minor or insane other person under guardianship, the guardian of such minor, insane or other person, may, under the direction of the circuit judge, agree and settle with said corporation for all damages by reason of the taking of such lands for any of the purposes aforesaid, and may give valid conveyances of such land. resident owner. SEC. 1247. If the owner of such lands is a non-resident of the Notice to non- county in which the same are situate, no demand of the right of 13 G. A. ch., 62, way or other purpose for which such lands are desired, shall be necessary, except the publication of a notice which may be in the following form: 2 2 1, 2, 3. NOTICE. For the appropriation of lands for railway purposes. To (here name each person whose land is to be taken or affected,) and all other persons having any interest in, or owning any of the following real estate, (here describe the land by its congressional numbers in tracts not exceeding one-sixteenth of a section, or, if the land consists of lots in a town or city, by the numbers of the lot and block.) You are hereby notified that the.. has located its railway over the above described real estate, and desires the right of way over the same, to consist of a strip or belt of land. . feet in width, through the centre of which the centre line of said railway will run, together with such other land as may be necessary for bermes, waste banks, and borrowing pits, and for wood and water stations, (or desires the same for the purposes mentioned in sections twelve hundred and forty-two, and twelve hundred and forty-three of this chapter, as the case may be) and unless you proceed to have the damages to the same appraised on or before... day of.... A. D. 18...., (which time must be at least four weeks after the first publication of the notice,) . . said company will proceed to have the same appraised on the.... day of...., (which must be at least eight weeks after the first publication of the notice,) at which time you can appear before the appraisers that may be selected. By........ attorney, or Where proceedings were based up- | on the assumption that the owner was a non-resident and unknown on certiorari, held, that the contrary not ... Railway Company. being made to appear, the proceed- lished. SEC. 1248. Said notice shall be published in some newspaper Notice pubin the county, if there be one, if there is none, then in a news- Same, ? 3. paper published in the nearest county through which the proposed railway is to run, for at least eight successive weeks prior to the day fixed for the appraisement at the instance of the corporation. returned. SEC. 1249. At the time fixed in either aforesaid notices, the Appraisement: appraisement may be made and returned in tracts larger than how made and forty acres, and all the lands appearing of record to belong to one Same, ¿ 4. person and lying in one tract may be included in one appraisement and return, unless the agent or attorney of the corporation, or the commissioners, has actual knowledge that the tract does not belong wholly to the person in whose name it appears of record; and in case of such knowledge, the appraisement shall be made of the different parcels, as they are known to be owned. ing house, gar is affected. SEC. 1250. If it appears from the finding of the commissioners Where dwellthat the dwelling-house, out-house, orchard, or garden, of the den, or orchard owner of any land taken will be overflowed or otherwise injuri- 12 G. 4. ch. 117, ously affected by any dam or reservoir to be constructed under 3. section twelve hundred and forty-two of this chapter, such dam shall not be erected until the question of such overflowing or other injury has been determined upon appeal in favor of the corporation. R. 2 1319. SEC. 1251. In case of the death, absence, neglect, or refusal, Talesmen. of any of said freeholders to act as commissioners as aforesaid, the sheriff shall summon other freeholders to complete the panel. paid. SEC. 1252. The corporation shall pay all the costs of the Costs: how assessment made by the commissioners, and those occasioned by R. 1317. the appeal, unless on the trial thereof a less amount of damages is 14 G. A. ch. 119. awarded than was allowed by the commissioners. If on the trial of an appeal by the | to him, but may distribute them acland-owner, a less amount of dam-cording to the general rules of law, ages is given than was awarded by without reference to this section: the commissioners, the court is not Jones v. Mahaska, &c., Coal Co., bound to tax all the costs of appeal 47-35. recorded. 2 1. SEC. 1253. The report of the commissioners, where the same Commissioners has not been appealed from, and the amount of damages assessed report may be and costs have been deposited with the sheriff, or, if an appeal is 18 G. A. ch. 125, taken and the amount of damages assessed on the trial thereof has been paid to the sheriff, may be recorded in the record of deeds in the county where the land is situate, and such record shall be presumptive evidence of title in the corporation to the property so taken, and shall constitute constructive notice of the rights of such corporation therein. |