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SEC. 43. [Costs.]-If the appeal has been taken by the claimant, the petititioner of the road or the county must pay the costs occasioned by the appeal; but the county shall pay only when the damages have been ordered to be paid out of the county treasury. If the petitioner for the road appeals, he must pay the costs, unless the claimant recovers a less amount than was allowed him by the board, in which case the costs shall be paid by the claimant. Judgment shall be rendered in accordance with the foregoing provisions.
SEC. 44. [Re-survey.]-When by the reason of the loss or destruction of the field notes of the original survey, or in cases of defective surveys or record, or in cases of such numerous alterations of any road since the original survey, that its location cannot be accurately defined by the papers on file in the proper office, the county board of the proper county may, if they deem it necessary, cause such road to be re-surveyed, platted and recorded as herein before provided.
SEC. 45. [Road plat-book.-If the same has not been heretofore done in any other manner, the county clerk shall, within six months after this act shall take effect, cause every road in his county, the legal existence of which is shown. by the records and files in his office, to be platted in a book to be obtained and kept for that purpose, and known as the "road plat-book." Each township or precinct shall be platted separately, on a scale of not less than four inches to the mile; and such clerk shall have all changes in or additions to the roads legally established immediately entered upon said plat-book, with appropriate references to the files in which the papers relating to the same may be found.
SEC. 46. [Section lines declared public roads.]-The section lines are hereby declared to be public roads in each county in this state, and the county board of such county may, whenever the public good requires it, open such roads without any preliminary survey, and cause them to be worked in the same manner as other public roads; Provided, That any damages claimed by reason of the opening of any such road shall be appraised and allowed, as nearly as practicable, in manner herein before provided. And provided further, That the county board before opening such section line road, shall direct the county surveyor to perpetuate the existing government corners along such line, by planting monuments of some durable material with suitable witnesses whenever practicable, and make a record of the same. [Amended 1885, chap. 76.]
SEC. 47. [Right of way, how opened.]-When the lands of any person shall be surrounded or enclosed, or be shut out and cut off from a public highway by the lands of any other person or persons, who refuse to allow such person a private road to pass to or from his or her said land, it shall be the duty of the county board on petition of any person whose land is so surrounded or shut out, to appoint three disinterested freeholders of the precinct, or township, in counties under township organization, in which the land lies, as commissioners to view and mark out a road from land of the petitioner to the nearest public highway, and assess the damages the person will sustain through whose land the road will pass.
SEC. 48. [Notice to land owners.]-The person desiring to secure the right of way shall give the person or persons through whose lands the road will run, at least two days notice of such intended application, by leaving or causing to be left, a written notice, at his usual place of abode; and satisfactory evidence that such notice has been given shall be presented to the board before commissioners shall be appointed."
SEC. 49. [Commissioners-Oath.]- The commissioners shall, before entering upon the discharge of their duties, take and subscribe an oath before some judge or justice of the peace, that they are not interested nor of kin to either of the parties interested in the proposed road, and that they will faithfully and impartially view and mark out said road to the greatest ease and convenience of the parties, and as little as may be to the injury of either, and assess the damages which will be sustained by the party through whose lands it will run.
SEC. 50. [Report of proceedings.]-Said commissioners shall make out
a report of their proceedings, stating particularly the course and distance of said road, and the amount of damages assessed, which report, together with a certificate of the oath, shall be returned to the county commissioners, and filed by the county clerk.
SEC. 51. [Same-When opened—Appeal.]—If the report be approved by the county board, and the petitioner shall produce satisfactory evidence that he has paid the damages assessed (or tendered payment, if the party refuse to receive it), and all costs attending the proceedings, the county board shall grant an order to said petitioner to open a road not exceeding fifteen feet in width; and if any person or persons obstruct said road, such person or persons shall be liable to all the penalties for obstructing a public road; Provided, however, If such road shall pass through any inclosure, and it shall be required by the owner thereof, the person applying for such road shall put up and keep at each entrance into such inclosure a good and substantial swinging gate; Provided, further, That either party may appeal from the decision of the county board in like manner as prescribed in case of public roads.
SEC. 52. [Right of way, an easement.]-Upon the establishment of the right of way, as in this chapter provided, the same shall vest and descend as an easement in the party and his or her heirs or assigns forever.
SEC. 53. [Road districts.]-The county board shall divide the county, except that portion occupied by cities and incorporated villages, into as many road districts as may be necessary, and may alter the boundaries thereof as may seem proper; Provided, however, That in no case shall any road district be so constituted as to be within the limits of two distinct voting precincts, or townships in counties under township organization; and it shall be the duty of the county clerk, upon application, to furnish each supervisor with a particular description of the boundaries of his district..
SEC. 54. [Overseers to procure tools.]-The overseers of the respective districts are hereby authorized to procure, if they deem it necessary, a plow and one or more scrapers, for the use of the road district, the cost thereof to be paid out of the road fund of the district, and allowed in the settlement with the overseer.
SEC. 55. [Neglect of overseers-Penalty.]-If any overseer shall neglect or refuse to keep the roads of his district in good repair as the number of hands and the amount of road tax under his control would reasonably enable him to do, or otherwise neglect to perform any of the duties imposed upon him by this chapter, he shall be liable, on his official bond, to pay a fine of not less than five nor more than fifty dollars, to be recovered by civil action before any justice of the peace in the county at the suit of any citizen for the benefit of the school fund. SEC. 56. [Sudden damages.]—In case of any sudden damage or injury to any bridge, culvert, or road, the overseer may, on one days notice, call out any and all able-bodied men under fifty years of age in his district (but not more than two days at any one time without their consent), to effect all repairs immediately necessary thereon; and persons so called out shall be entitled to receive $1.50 per day from the fund in the hands of such overseer.
SEC. 57. [Failure to labor-Penalty.]—If any able-bodied man, when duly summoned as provided in the preceding section, fail to appear and labor diligently, by himself or his substitute, or send satisfactory excuse thereof, he shall be liable to a penalty of five dollars, to be recovered by civil action before any justice of the peace, at the suit of any citizen for the benefit of the school fund. SEC. 58. [Roads and bridges in cities.]-The county board may, in their discretion, whenever there is sufficient money on hand in the county road fund, build or repair any bridge or bridges within the limits of any incorporated city or village in their county.
SEC. 55. No right of action against the overseer exists for injuries occasioned to a person or his property by reason of a defect in a public road or bridge. 5 Neb. 392. Nor is county liable. 10 Neb. 554.
SEC. 59. [Roads on county and town lines.]-Any public road that is or shall hereafter be laid out on a county or town line, shall be held to be a road on a county or township line, although, owing to the topography of the ground along said county or township line, or at the crossing of any stream of water, the proper authorities, in establishing or locating such road, may have located a portion of the same to one side of such county or township line.
SEC. 60. [Persons meeting on road.]-Whenever any persons, traveling with any carriages, shall meet on any road in this state, the persons so meeting shall seasonably turn their carriages to the right of the center of the road, so as to permit each carriage to pass without interfering or interrupting, under the penalty of five dollars for every neglect or offense; Provided, This section shall not be construed to apply to any case, unless some injury to person or property shall occur by the driver of the carriage or wagon refusing to turn to the right of the beaten track; nor shall it be construed to extend to a case where it is impracticable, from the nature of the ground, for the driver of the carriage or wagon to turn to the right of the beaten track.
SEC. 61. [Drunken drivers.]-No person owning any carriage, running or traveling upon any road in this state, for the conveyance of passengers, shall employ, or continue in employment, any person to drive such carriage who is addicted to drunkenness or the excessive use of spirituous liquors, and if any such owner shall violate the provisions of this section, after he shall have had notice and reasonable proof that such driver is addicted to drunkenness, he shall forfeit at the rate of five dollars per day for all the time during which he shall thereafter have kept any such driver in his employment.
SEC. 62. [Same-Discharge.]-If any driver, whilst actually employed in driving any such carriage, shall be guilty of intoxication to such a degree as to endanger the safety of the passengers in the carriage, it shall be the duty of the owner of such carriage, on receiving written notice of the fact, signed by any one of said passengers, and certified by him on oath, forthwith to discharge such driver from his employment; and every such owner who shall retain or have in his employ, within three months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day for the time during which he shall keep any such driver in his employment after receiving such notice.
SEC. 63. [Running horses-Penalty.]-No person driving any carriage upon any road within this state, with or without passengers therein, shall run his horses or carriage (or permit the same to run) upon any occasion, or for any purpose whatever; and no person riding any horse or mule shall run the same on any public road, except in cases of necessity; and every person who shall offend against the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not exceeding ten dollars, or imprisoned not exceeding sixty days, at the discretion of the court.
SEC. 64. [Horses to be hitched.]-It shall not be lawful for any person. to leave a horse, mule, or team standing upon any public road, unless the same shall be securely hitched or guarded. Any person offending against the provisions of this section shall be liable to a penalty of $5.00 for each and every such offense.
SEC. 65. [Same.]-It shall not be lawful for the driver of any carriage used for the purpose of conveying passengers for hire to leave the horses attached thereto while passengers remain therein, without first making such horses fast with a sufficient halter, rope or chain, or by placing the lines in the hands of some other person, so as to prevent their running. And if any such driver shall offend against the provisions of this section, he shall forfeit the sum of $20, to be recovered by civil action at the suit of any citizen for the benefit of the school fund. SEC. 66. [Owners liable for damages-Violation of act-Penalty.]-The owners of every carriage running upon any road, for the conveyance of passengers, shall be liable, jointly and severally, to the party injured, in all
cases, for all injuries and damages done by any person in the employment of such owners as a driver, while driving such carriage, to any person or to the property of any person; and that, whenever the act occasioning such injury or damage be wilful, negligent, or otherwise, in the same manner that such driver would be liable. Any driver of any mail stage coach, or any other vehicle for the conveyance of passengers, wilfully offending against the provisions of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be imprisoned not exceeding thirty days, or fined not exceeding $100.
SEC. 67. [Carriage defined.]-The term "carriage," as used in this act, shall be construed to include stage coaches, wagons, carts, sleighs, sleds and every other carriage or vehicle used for the transportation of passengers and goods, or either of them.
SEC. 68. [Additional regulations in cities and villages.]-Nothing herein contained shall be construed to prevent additional regulations, or the licensing of hacks and carriages by the corporate authorities of cities and villages, under the ordinances of such corporation.
SEC. 69. [Injuring or obstructing roads.]-If any person shall injure or obstruct a public road by falling a tree or trees in, upon or across the same, or by placing or leaving any other obstruction thereon, or by encroaching upon the same with any fence, or by plowing or digging any ditch or other opening thereon, or by turning a current of water so as to saturate or wash the same, or shall leave the cutting of any hedge thereupon, for more than five days, he shall forfeit for every such offense a sum not less than $3 nor more than $10, and in case of placing any obstruction on the road, an additional sum of not exceeding $3 per day for every day he shall suffer such obstruction to remain after has been ordered to remove the same, by any of the road overseers, complaint to be made by any person feeling himself aggrieved; Provided, This section shall not apply to any person who shall lawfully fell any tree for use, and will immediately remove the same out of the road, nor to any person through whose land a public road may pass, who shall desire to drain his land, and shall give due notice to the overseer of such intention; And, provided, further, That any overseer of roads, after having given reasonable notice (to the owners) of the obstruction, or person so obstructing or plowing or digging ditches upon such road, may remove any such fence or other obstruction, fill up any such ditch or excavation, and recover the necessary cost of such removal from such owner or other person obstructing such road aforesaid, to be collected by said overseer before any justice of the peace having jurisdiction.
SEC. 70. [Injuries to sidewalks, bridges, etc.-Penalty.]—If any person shall purposely destroy or injure any sidewalk, public bridge, culvert or causeway, or remove any of the timber or plank thereof, or obstruct the same, he shall forfeit a sum not less than $3 nor more than $100, and shall be liable for all damages occasioned thereby, and all necessary costs of rebuilding or repairing the same.
SEC. 71. [Sidewalks, trees, hedge, etc.]—It shall be lawful for the owner or occupants of land bordering upon any public road to build sidewalks not to exceed six feet in width, and to plant shade and ornamental trees along and in such road at a distance not exceeding one-tenth of the legal width of the road from its margin, and also to erect and maintain a fence so long as it shall be actually necessary for the purpose of raising a hedge on said margin a distance of six feet from the within said marginal lines.
SEC. 72. [Fast driving over bridge.]-Whoever shall ride or drive faster than a walk over any bridge, shall forfeit for every such offense the sum of $5.
SEC. 73. [Ditches, etc.]-The overseers of the several road districts are hereby authorized to enter upon any land adjacent to any public road in their respective districts, for the purpose of opening any ditch, drain, necessary sluice or water course, whenever it shall be necessary to open a water course from any road to the natural water courses, and to dig, open and clean ditches upon said land, for the
purpose of carrying off the water from said road, or to drain any slough or pond on said road; Provided, That unless the owner of such land, or his agent, shall first consent to the cutting of such ditches, the overseer shall call to his assistance three electors of his district, who shall appraise the damages sustained by such person. Such appraisers shall make their award in writing, and the same shall be paid out of any money in the hands of the overseer, out of or belonging to his district, and if there be none such, the same shall be paid by the county board, out of the county road fund. SEC. 74. [Jurisdiction of justices of the peace.]-Justices of the peace shall have jurisdiction in all cases arising under this act, where any fine, penalty, or forfeiture imposed does not exceed their jurisdiction.
SEC. 75. [Fire guards.]—It shall be the duty of each overseer of roads during the months of June or July in each year to make provision for the prevention and spread of prairie fires in his district by causing at least four furrows to be plowed on each side of such public or main traveled roads in his district, not less than two rods from the center of such roads, where practicable, and at a suitable time and as soon thereafter as the grass becomes sufficiently dry, he shall cause to be burned all grass between said plowing on either side of the roads. The labor to be performed under the provisions of this section shall be a part of the labor to be performed by persons assessed to pay labor or road tax, and they shall be allowed compensation at the rate hereinafter provided for other work on public roads. [Amended 1888, chap. LXX.]
SEC. 76. [Road tax-Disposition-District road fund:]-In counties not under township organization, one-half of all the moneys paid into the county treasury in discharge of road tax shall constitute a county road fund, which shall be at the disposal of the county commissioners for the general benefit of the county, for road purposes; the other half of all moneys paid into the county treasury in discharge of road tax, and all money paid in discharge of labor tax, shall constitute a district road fund, which shall be paid by the county treasurer to the overseer of the road district from which it was collected, and expended by him only for the following purposes: First. For the construction and repair of bridges and culverts, and making fire guards along the line of roads. Second. For the payment of damages of the right of any public road. Third. For the payment of wages of overseers, and for the expense of procuring the necessary guide-boards. Fourth. For the payment of the wages of commissioners of roads, surveyor, chainmen, and other persons engaged in locating or altering any county road, if the road be finally established or altered as herein before provided. Fifth. For work and repairs upon road.
SEC. 77. [Expenditure of road fund in another district.]-The county commissioners shall have power, upon receiving a petition signed by at least two-thirds of the qualified electors of any district, to order that any road moneys belonging to the district be expended in any other district, under the direction of the proper overseer thereof; and in such case such overseer shall pay over all money in his hands to the overseer of the district in which such money is ordered to be expended and take his receipt for the same.
SEC. 78. [Persons to work out tax-Notice.]-It shall be the duty of each overseer of roads to give at least three days notice to all persons residing in his district liable to pay labor and road tax therein, either personally or in writing left at their place of abode, of the time when between the first day of April and the first day of October in each year, and the place where they may appear and pay their labor tax and three-fourths of their road tax in labor, and with what implements. And it shall be the duty of the county clerk in each county in the state of Nebraska to furnish to each overseer of roads in his county, on or before the first day of March in each year a list of all property subject to road tax in his district, the name of the owner or owners of the same, together with the amount of road tax due thereon, said road tax to be computed upon the assessment of the previous year. [Amended and took effect Feb. 28, 1881.]
SEC. 79. [Allowance for work.]-The overseer shall allow all persons
SEC. 79. Prior to the passage of this section and under the old law. sec. 8, G. S. 952, it was held that the