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tenth day of August and the twentieth day of September by regiment or brigade annually or bi-annually as ordered by the commander-in-chief, but such regiment shall perform such encampment duty at least once in two years.
SEC. 44. [Same.]-The place of such encampment shall be designated by the proper commanding officer, subject to approval by the commander-in-chief. Orders for encampment shall be given at least twenty days prior thereto, and for said parades at least five days prior thereto, by depositing the same in the mail, properly addressed to the person to be notified, or by leaving the same at his usual place of abode, or by reading the same to his respective commands. Each section of artillery shall parade one day in September for drill in its own town, and the commander-in-chief may, at his discretion, order any section of artillery to attend regimental encampment. No member of the Nebraska National Guards shall be exempt or relieved from military duty by membership or service in any fire company.
SEC. 45. [Same-Absences.]-Every company when encamped shall have roll call on the first day at noon, and at tattoo; on the remaining days at reveille, at noon and at tattoo; absence without leave from either of said roll calls, shall be deemed as absence for the entire day, and so reported on the pay roll. The commander of the regiment shall detail officers from his staff, who shall attend the roll calls of the companies, and report to him the names of absentees of such companies, and such report shall be forwarded to the adjutant general.
SEC. 46. [Power of commandant.]-The commanding officer of any encampment or parade may cause those under his command to perform any field or camp duty he shall require, and may put under arrest, during such encampment or parade any member of his command who may disobey a superior officer, or be guilty of disorderly or unmilitary conduct, and any other person who may trespass upon the parade or encampment ground, or molest the orderly discharge of duty by the members of his command; and he shall prohibit the sale of all spirituous and malt liquors within one mile of such parade or encampment.
SEC. 47. [Target practice-Conduct of commandant.]-The brigadier general shall direct such target practice at the annual parade or encampment, as he may deem expedient, and shall attend such encampment and report the conduct and discipline thereof to the commander-in-chief, who, if he shall judge that such encampment has been prejudicial to good morals or military discipline in any regiment shall not permit another encampment of such regiment until its commanding officer has resigned or been removed.
SEC. 48. [Requisition for encampments.]—The commanding officer of each encampment shall make a requisition on the quartermaster general at least ten days prior thereto for the necessary transportation, tents, blankets, camp equipage and supplies therefor, and if approved by the adjutant general, shall furnish the same.
SEC. 49. [Company drills-Inspections.]--The commandant of each regiment may order semi-monthly, evening drills by any company of his command from October to April inclusive, of not less than one hour each, and shall inspect at least one evening drill of each company during said period, or detail a field officer for such inspection. The officer making such inspection shall receive his necessary traveling expenses, to be paid upon certified vouchers of the proper officer, approved by the adjutant general.
SEC. 50. [General discipline Court martial.]-The commander-inchief shall have power to enforce discipline, and may prescribe all needful rules and regulations to maintain order and discipline among the officers and men of the State National Guards by general orders issued by him to the several commands, and to enforce the same may order courts of inquiry and courts martial under a regulation as to the formation of and power of said courts and mode of procedure in the trial of offenses against the military law of the state, and detail as to the carrying into effect the finding and judgments of said courts; Provided, That the courts organized by virtue of this act shall not have power to fine or im
prison any officer or soldier for any crime committed by him punishable by criminal procedure under the laws of this state.
SEC. 51. [Officers may arrest offenders.]-Any commissioned officer of the several commands shall have the ordinary powers of a sheriff to arrest any officer or enlisted man for the commission of any crime punishable under the laws of the state, while on any duty authorized by this act, and may proceed against any such offender by information or complaint before any court of law having cognizance of such offense, and may call to his aid as many of his men as may be necessary to make such arrest.
SEC. 52. [Appropriations.]-In no case shall the appropriations for carrying out the provisions of this act exceed five thousand dollars ($5,000) for each year, unless otherwise provided by law. [Amended 1885, chap. 63.]
BURIAL OF HONORABLY DISCHARGED SOLDIERS.
SEC. 53. [Duty of county board.]-It shall be the duty of the board of county commissioners, or board of supervisors in counties under township organization, of this state, to designate some suitable person in each precinct, or township, whose duty it shall be to cause to be decently interred, the body of any honorably discharged soldier, sailor or marine who served in the army or navy of the United States during the late war, who may hereafter die without leaving sufficient means to defray funeral expenses. Such burial shall not be made in any cemetery or burial ground used exclusively for the burial of the pauper dead; Provided, The expenses of such burial shall not exceed the sum of thirty-five dollars; and Provided further, That in case that surviving relatives of the deceased shall desire to conduct the funeral, and are unable to pay the charges therefor, they shall be permitted so to do, and the expenses shall be paid as herein provided. [1885 $1, chap. 39.]
SEC. 54. [Tombstones.]-The grave of any such deceased soldier, sailor or marine shall be marked by a head-stone, containing the name of the deceased, and the organization to which he belonged or in which he served; Provided, It shall be the duty of the county commissioners, or supervisors in counties under township organization, upon the death and burial of any such soldier, sailor or marine residing within such county at the time of his death, to make application to the proper authorities under the general government for a suitable head-stone as provided by act of congress, and cause the same to be placed at the head of such deceased soldier's grave. [Id. §2.]
SEC. 55. [Expenses paid by county.]-The expenses of such burial shall be paid by the county in which such soldier, sailor or marine shall have died. And the board of county commissioners, or supervisors, of such county are hereby authorized and directed to audit the account and pay the said expenses in similar manner as other accounts against such county are audited and paid. [Id. §3.]
SEC. 56. [Quota of arms and equipments.]-WHEREAS, by act of congress, the state of Nebraska is entitled to receive from the government arms and equipments for the use of the state militia, and that there is now the sum of six thousand six hundred dollars to the credit of this state on account of said act. Therefore, Be it resolved by the House of Representatives, the Senate concurring: That it is the sense of this legislature, that in the drawing of Nebraska's quota of
SECS. 53-55. "An act to provide for the burial of honorably discharged soldiers, sailors and marines who may hereafter die without leaving means sufficient to defray funeral expenses, and to provide head-stones to mark their graves."
SEC. 56. Joint Resolution relative to drawing Nebraska's quota of arms and equipments from the government of the United States.
said arms and equipments, that as a portion thereof two hundred hospital tents for the use of the militia of this state be drawn by the governor, and that the governor may allow the use of such tents at encampments of such militia, and at reunions of old soldiers in this state. [1885, chap. 126.]
CHAPTER 57.-MILLS AND MILL-DAMS.
SECTION 1. [Ad quod damnum-Application for writ.] If any person, desiring to erect a dam across any water-course for the purpose of building a water grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, be the owner of the lands on which he desires to build such mill or erect such machinery, on one side of such water-course and not of the lands on the opposite side against or upon which he would abut his dam; or, if any person be the owner of the lands, on which he desires to erect any such mill or machinery on both sides of such water-course; or, if any person shall have erected such mill and mill-dam on his own lands, he may file a petition for leave to build or continue such mill-dam and for a writ of ad quod damnum in the district court of the county where such lands lie, against the owners or proprietors of the lands above and below such dam, which are, or probably will be, overflowed or injured thereby, or against or upon which he may desire to abut his dam.
SEC. 2. [Petition.]--The plaintiff shall set forth in his petition, as near as may be, the place where such dam is built, or proposed to be built, the height or proposed height of such dam, the kind of mill built or proposed to be built, his title to the lands whereon he has erected or proposes to erect such mill or machinery, whether legal or equitable, and shall describe with certainty the lands above and below such dam, the property of others which are, or will probably be overflowed or injured as aforesaid, and shall give the name of the owner of each tract, or, if the name of any such owner be unknown, the plaintiff shall so state in his petition.
SEC. 3. [Writ-Notice to defendants.]-The court may thereupon order the clerk to issue the writ, directed to the sheriff, commanding him to make out a list of twenty-four disinterested freeholders of the county and return the same to the clerk of said court forthwith; and to notify each of the defendants, if found within the county, that the plaintiff, naming him, has filed his petition against the defendants, naming them, in said court, for leave to build or continue his milldam at the place stated in the petition, to be set forth in said writ and notice, and that a writ of ad quod damnum has been granted by such court, and of the day and term when the same was granted, and that they are required to appear at the office of said clerk, on a day and hour to be fixed by the sheriff, and named in said notice, and then and there, in the presence of the said clerk, to strike, alternately with the plaintiff, a jury of inquest; and further commanding said sheriff to summon and impanel the jury so struck to meet on the lands where such dam is built or proposed to be built, on a day and hour to be named by the court, and inserted in the order granting the writ, then and there to inquire and report of the matters to be given them in charge.
SEC. 4. [Same-Service.]-The notice to be served upon the defendants as aforesaid shall be in writing, and shall be served at least ten days before the time.
NOTE.-"An act relating to mills and mill-dams." G. S. 472 Took effect Feb. 26, 1873. In proceedings under this act, where A in good faith commenced the erection ofa mill, of which B had notice, and to which he made no objection, he cannot, after A has expended a considerable sum on his mill, enjoin him from erecting a dam, the effect of which would be to flow the water back on an unoccupid mill site owned by B. 10 Neb. 465. Statute is exclusive. 10 Neb. 467. Rights of conflicting claimants; overflow of mill site higher up river by owner of dam below. 13 Neb. 547. Damages for want of use of mill, and the building of which was claimed to be delayed, Held, too remote and uncertain. 14 Neb. 374. Water grist mill is a work of internal improvement. 14 Neb. 333.
fixed for striking the jury, by delivering a copy to each defendant personally or by leaving such copy at his usual place of residence.
SEC. 5. [Same-By publication.]-If any defendant's name be unknown, or if he be not a resident of the county, the plaintiff may, at the time he brings his petition or at any time thereafter, file with the clerk an affidavit to that effect, and thereupon may obtain service upon such non-resident or unknown defendant by publication. The publication must be made four consecutive weeks in some newspaper printed in the county where the petition is brought, or if no newspaper be printed in such county, then in some newspaper printed in the state and of general circulation in the county. It must notify the defendant of the time when the petition was filed, of the object and purpose thereof, of the place where the dam has been or is proposed to be built, as near as may be, of the term when said petition will stand for hearing, and must contain an accurate description of the lands, owned by such defendant that are likely to be overflowed or injuriously affected, or against or upon which it is proposed to abut such dam, as the case may be. Such publication must be completed at least one term before the final adjudication in the matter.
SEC. 6. [State lands affected.]-Should any of the lands, likely to be overflowed or injured, or upon or against which it is proposed to abut such dam as aforesaid, be public lands of the state, the court may direct the prosecuting attorney to see that the interests of the state are protected, or may appoint some suitable person to act in his stead, who shall be sworn faithfully and impartially to discharge his duties as attorney for the state in the matter, and who shall be paid a fee, not to exceed twenty-five dollars, to be taxed as costs of the plaintiff.
SEC. 7. [Jury of inquest.]-On the day fixed for striking the jury as aforesaid, the plaintiff and defendants or their agent or attorney, shall alternately in the presence of the clerk, strike out one name from said list of twenty-four, until but twelve remain, and such twelve shall be the jury, and the clerk shall certify their names to the sheriff. Should the defendants fail to appear, or should they refuse or fail to strike, or if they are unable to agree on any name or names to be struck from said list, in their turn, the clerk shall strike in their stead.
SEC. 8. [Same-Duties.]—The jury so struck shall be summoned and impaneled by the sheriff, and, being sworn faithfully and impartially to inquire and report of the matters to be given them in charge, shall be charged by the sheriff, as the circumstanees of the case may require, substantially as follows: First. To view the land proposed for an abutment and to locate and circumscribe by metes and bounds one acre thereof, having due regard therein to the interests of both parties, and to appraise the same according to its true value. Second. To examine the lands above and below the property of others, which are, or may probably be overflowed or injured, and say what damage it has been, and will be to the several defendants, naming them, and whether the mansion house of any such defendant or defendants, or the offices, curtilages, or gardens thereunto immediately belonging, will be overflowed or injured. Third. To inquire whether, and in what degree fish of passage, or ordinary navigation will be obstructed, and whether, in their opinion the health of the neighborhood will be annoyed by the stagnation of the water. Fourth. Whether and by what means, any such obstruction, annoyance, or injury can be prevented. Fifth. Whether such mill is, or will be, of public utility.
SEC. 9. [Return of inquest-Answer.]-The inquest so made, being signed by the jurors, shall, together with the writ, be forthwith returned by the sheriff to the office of the clerk of such court. Should such return be made in vacation, the 'defendants, or any of them, shall have until the first day of the next term, to show cause why the plaintiff should not have leave to build or continue his said mill-dam. Said time may be extended by the court on good cause shown. If the return be made in term, the court shall, by order, fix a reasonable time within which such cause may be shown.
SEC. 10. [Interested parties Amendments.]-Any person interested in or affected by any inquest or proceeding provided for in this act, may, on motion,
and proper showing, be made a defendant therein; and the court may permit amendments of the proceedings, and allow new parties to be brought in, on motion of the plaintiff, as in other cases.
SEC. 11. [Trial-Proceedings.]—Any defendant may, after the return of the sheriff, aforesaid, traverse, by way of answer, any material fact stated in the petition or inquest, or he may plead any valid matter in bar of the plaintiff's right to have the benefit of the writ; or he may file exceptions for substantial defects to the writ, the inquest, or any of the proceedings herein provided for; and issues of law, and of fact, may be made up and tried as in other cases; and the court may quash the writ, or set aside the inquest, and may award a new writ on payment of all costs by the party who has built, or proposes to build, such mill-dam, or the court may dismiss the proceedings, or may ratify and confirm such inquest.
SEC. 12. [Same-Judgment.]-If on such inquest or trial it shall appear to the court that the mill or appurtenances thereunto belonging, or the mansion house of any defendant or curtilage or garden thereunto immediately belonging, will be or has been overflowed or injured, or the health of the neighborhood annoyed, they shall not give leave to build or continue such mill-dam; but, if none such injuries have accrued, nor will be likely to accrue, they shall proceed to adjudge whether under all the circumstances it be just and reasonable that such leave be given or not given.
SEC. 18. [Same-Dam erected.]-In case such petition be filed by the plaintiff, after having erected his mill-dam, no damages shall be allowed and the application shall be dismissed, unless the case be such that leave would have been given to build such mill-dam if such petition had been brought before the erection thereof.
SEC. 14. [Persons damaged-Proceedings.]-Where any person may have built a mill or other dam whereby the water of any river, creek, run, or spring may be rendered stagnant, or any lands may be overflowed or injured thereby, any person, or any number of persons interested therein, or who may be damaged by the stagnation or overflowing of said water, or otherwise, may file a petition against the owner of such mill-dam for such writ, and like proceedings shall be had mutatis mutandis, as where the owner of a mill-dam so built brings the petition. But such owner shall have ten days previous notice of the filing of the petition.
SEC. 15. [Fee of mill site.]-If the petition is brought to obtain leave to build a mill-dam, and such leave is granted, the plaintiff shall, upon paying respectively to the persons entitled the value of the acre so located and the damages assessed on the inquest aforesaid, become seized in fee-simple of the said acre of land; but, if he shall not within one year after the final adjudication, begin to build said mill, and finish the same within three years, and afterwards continue it in good repair for public use, or, in case said mill and dam, or either of them, be destroyed, if he shall not begin to rebuild the same within one year after such destruction, and finish the erection thereof within three years thereafter, the said acre of land shall revert to the former proprietor and his heirs, unless at the time of such destruction the owner of such mill be an infant, or imprisoned, or of unsound mind, in which case the length of time above specified shall be allowed after such disability is removed.
SEC. 16. [Damages Assessment.]-Where the petition is brought against the owner of a mill-dam already built, as provided in section fourteen of this act, and the mill is found to be of public utility, or where the petition is brought to obtain leave to build or continue a mill-dam, the jury shall assess such damages as the party or parties injured may have sustained, and will sustain, by the erection and continuance of such mill-dam. But, where the petition is brought against the owner of a mill-dam as aforesaid, and such mill is not found to be of public utility, no damages shall be assessed for injuries which may accrue by the continuance of such mill-dam.