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TITLE 1 such turnpike road company, such stock shall be held by such plank road company for the benefit of the stockholders of such plank road company in proportion to the amount of stock held by each stockholder in such plank road company at the time of such purchase or at any time afterwards. Upon and after the purchase of the whole of the stock of such turnpike road company by such plank road company, the directors of such plank road company for the time being, and their successors shall be the sole directors of such turnpike road company, and shall manage the affairs thereof pursuant to the charter of such turnpike road company, and shall render an account of the same annually to the stockstockhold holders of such plank road company. In case of a dissolution of road com such plank road company, the stockholders of such plank road stockhold company at the time of such dissolution, shall be the stockholders of such turnpike road company in proportion to the amount of stock held by each in said plank road company; and from thenceforward the stock of such turnpike road company shall be deemed divided into shares equal in number to the shares of stock of such late plank road company, and scrip therefor shall be issued accordingly to each of the last stockholders of such plank road company. Officer of Whereupon the officers of such turnpike road company shall be

In case of dissolution

ers of plank

pany to be

ers of

turnpike

road

company.

turnpike

road company.

Company may take possession. of land.

Provision

in cases

cannot be

the same in number and power as provided for in the charter of
such turnpike road company, and shall be chosen by such former
stockholders of such plank road company or their assigns, each
share of stock as above provided for entitling the holder thereof to
one vote. After such purchase of the stock of such turnpike road
company, and prior to the dissolution of such plank road company,
the assignment of stock in said plank road company shall carry
with it its proportional amount of the stock in such turnpike road
company, and entitle the holder thereof to his share of the divi-
dends derived from such turnpike road. Whenever a plank road
shall be made as provided in this act on or adjoining a route of any
turnpike road, the company owning such turnpike road is autho-
rized to abandon that portion of their road on or adjoining the
route of which a plank road is actually constructed and used;
but nothing herein contained shall be so construed as to prevent
any plank road from crossing any turnpike road, nor any turnpike
road from crossing any plank road. [As amended 1857, ch. 643.]
$76. [Sec. 11.] The route so laid out and surveyed by the
said commissioners shall be the route of such road, and such com-
pany may enter upon, take and hold subject to the provisions of
this act, all such lands as the said survey shall describe as being
necessary for the construction of such road and the necessary
buildings and gates. But before entering upon any of such lands,
the company shall purchase the same of the owners thereof, or
shall, pursuant to the provisions of this act acquire the right to
enter upon, take and hold the same.

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cannot

*S77. [Sec. 12.] If any owner of such land shall from any where land cause be incapable of selling the same, or if such company purchased. agree with him for the purchase thereof, or if after diligent inquiry the name or residence of any such owner cannot be ascertained, the company may present to the first judge or county judge of the

county in which the lands of such owner lie, a petition setting_ART. 5. forth the grounds of the application, a description of the lands in question and the name of the owner if known, and the means that have been taken to ascertain the name and residence of such owner, if his name and residence has not been ascestained, and. praying that the compensation and damages of the owner of the lands described in the petition may be ascertained by a jury. Such petition shall be verified by the oaths of at least two of the directors of the company, and if it shall allege that the name or residence of any owner is unknown, it shall be accompanied by affidavits proving to the satisfaction of the said judge that all reasonable efforts have been made by the company to ascertain the name and residence of any owner whose name or residence is unknown.

submitted.

*$78. [Sec. 13.] On receiving such petition, the said judge Case to be shall appoint a time for drawing such jury, which shall be drawn to a jury. from the grand jury box of the county by the clerk thereof, at his office. At least fourteen days' notice of the time and place of such drawing shall be served personally upon each owner of the lands. described in the petition, who shall be known and reside in the county where the lands lie, or by leaving the same at his residence; and such notice shall be served on all other owners in the manner aforesaid, or by putting the same into the post-office directed to them at their respective places of residence and paying the postage thereon, or by publishing the same once in each week for two successive weeks in a newspaper printed in such county, the first of which publications shall be at least fourteen days before such drawing.

in case of

judge.

*S 79. [Sec. 14.] In case any lands described in such petition Provision shall be owned, by a married woman, infant, idiot or insane person, married or by a non-resident of the state, the said judge shall appoint some women, &o. competent and suitable person having no interest adverse to such owner, to take care of the interest of such owner in respect to the proceedings to ascertain such compensation and damages. And all such notices as are required to be served on any owner residing in such county, shall be served upon the person so appointed in like manner as on such owner; but any person so appointed to take care of the interest of any such non-resident may be superseded by him. *S80. [Sec. 15.] The said judge shall attend such drawing and Duty of shall decide upon any challenge made to any juror drawn by any person interested. Twenty-four competent and disinterested jurors, and as many more as the said judge shall direct, shall be drawn; the clerk shall make, certify and deliver to the judge, and to any party requiring the same, a list of them, and the ballots drawn shall be returned to the box. The said judge, if he shall deem it necessary, may at any subsequent time direct the drawing of an additional number of jurors, and they shall be drawn, and all proceedings in relation to such drawing shall be had in the manner herein before provided. Before proceeding to draw any such jury, the company shall furnish to the said judge proof by affidavit satisfactory to him, of the time and manner of serving and publishing notice of such drawing, which affidavit shall be filed in such clerk's

jurors to be drawn.

TITLE 1 office; and no such jury shall be drawn unless it shall appear to the satisfaction of the said judge that the provisions of this act in respect to giving notice of such drawing have been complied with. Number of *S 81. [Sec. 16.] From the jurors so drawn the said judge shall draw as many as he shall deem necessary to secure the attendance of twelve, and he shall issue his precept directed to the sheriff of such county, either of his deputies or any constable of such county to summon the jurors so drawn by the said judge, to attend at the time and place therein specified, to ascertain such compensation and damages. And he may from time to time, in case of the absence or inability to serve of any juror directed to be summoned, draw and direct to be summoned as aforesaid, as many as may be necessary in his opinion te secure the attendance of twelve.

Jurors,

when and how summoned.

Penalty for neglect.

Witnesses

may be

*S 82. [Sec. 17.] Every juror named in any such precept, shall, at least four days before the day therein specified for his attendance, be summoned personally, or by leaving at his residence a notice containing the substance of such precept. The officer serving such precept shall return it to the said judge, with an affidavit of the manner of serving the same, and of the distance necessarily traveled by him for that purpose; and such officer shall receive for making such service, six cents a mile for the distance so traveled.

*S 83. [Sec. 18.] Every juror so summoned, who shall neglect or refuse to attend or serve, in pursuance of such summons, shall be liable to the same penalties as in case of such negleet or refusal of a person duly summoned as a juror in a court of record; and may be excused by the said judge from attending or serving, for reasons for which such juror might be so excused if summoned as a juror in such court. Every juror attending shall be entitled therefor to one dollar a day, and his reasonable and necessary expenses to be paid by the company.

* § 84. [Sec. 19.] On the application of any party interested, subpoenaed. any judge or justice of the peace, may issue a subpoena requiring witnesses to attend before such jury, and such subpoena shall have the same force and effect, and witnesses duly supoenaed by virtue thereof and refusing or neglecting to obey the same, shall be subject to the same penalties and liabilities as though such subpoena were issued from a court of record, in a suit pending therein.

Notice to be given to

land.

$85. [Sec. 20.] The time and place of meeting of the jury, owners of to ascertain such compensation and damages, may be fixed by the said judge, by an order to be made by him at any time after receiving such petition; and notice thereof shall be served on the owners whose lands are described in the petition, as follows: on any owner residing in the county, or within fifteen miles of the lands in question owned by hin, personally, or by leaving the same at his residence, at least fourteen days before the time so fixed; on any other owner residing within this state, and whose residence is known, in the manner aforesaid, or by putting the notice into the post-office directed to him at his place of residence, and paying the postage thereon; on any owner residing out of the state, and not within fifteen miles of the lands in question, owned by him, by putting the notice in the post-office directed and paid as

aforesaid, at least forty days before the time so fixed; and on owners whose residence is unknown, by publishing the notice once in each week for six successive weeks, in one of the public newspapers printed in the county.

ART. 5.

jury.

$86. [Sec. 21.] The jurors so summoned, shall meet at the Duty of time and plece fixed by the said judge for that purpose, and shall be sworn by him to diligently inquire and ascertain the compensation and damages which ought justly to be paid for the land described in the petition, or for those of them in respect to which they shall be called upon to inquire, to the owners thereof, and for taking the same for such road, and faithfully to perform their duty as such jurors, according to law.

judge.

$87. [Sec. 22.] The said judge shall attend such jurors, shall Duty of administer oaths to witnesses called before them, shall take minutes of the testimony given, and admissions of the parties made before them, shall advise such jury as to the law applicable to any case that may arise, shall receive, certify and return to the county clerk's office the verdicts agreed upon by them, and while so attending shall have all the powers possessed by a court of record, when trying issues of fact joined in civil cases.

to be

*S88. [Sec. 23.] The jury after hearing the parties and view- Damages ing the lands in question in each case, shall by a verdict ascer- awarded. tain and determine the compensation and damages that ought to be paid to the owner for the land to be taken by the company, and for taking the same for such road, and also the amount that ought to be paid to him for the time spent and necessary expenses incurred by him in respect to the proceedings; to ascertain and determine such compensation and damages, of which time and expenses a bill of items shall be presented to the jury, verified by the oath of the owner or his agent, and such compensation and damages shall be ascertained and determined without any deduction on account of any real or supposed benefit which the owners of such lands may derive from the construction of such road.

notice to be

*S 89. [Sec. 24.] Such jury shall not proceed to a hearing in Proof of any case until the company shall have produced to the said judge produced. satisfactory proof by affidavit that the notice of the meeting of the jury has been given in such case according to the provisions of this act; and such affidavit shall be attached to and filed with the certificate of the verdict in the case. And on any such hearing, no evidence or information shall be given nor any statement made to the jury of any proposition by or negotiation between the parties or their agents in respect to any such lands or such compensation or damages, nor shall any such petition contain any such state

ment or information.

make

*S90. [Sec. 25.] Such jury finding any such verdict, shall after Jury to agreeing upon the same make a certificate thereof, and sign and certificate. deliver the same to the said judge; and shall embrace therein a particular description of the land in respect to which it is found. Such certificate may include one or more verdicts in the discretion of the jury. Every such certificate shall be certified by the judge to have been made by such jury, and shall be recorded in the

VOL. II.

32

TITLE 1. records of deeds in the clerk's office of the county where the lands therein described shall lie, at the expense of the company.

Provision

in case

of using

3 Kern., 526.

91. [Sec. 26.] Whenever it shall become necessary for any such company to use any part of a public highway for the conhigh, struction of a plank or turnpike road, the supervisor and commis1 Kern., 376. sioners of highways of the town in which such highway is situated, or a majority if there be more than one such commissioner in such town, may agree with such company upon the compensation and damages to be paid by said company for taking and using such highway for the purposes aforesaid. Such agreement shall be in writing, and shall be filed and recorded in the town clerk's office of such town. In case such agreement cannot be made, the compensation and damages for taking such highway for such purpose, shall be ascertained in the same manner as the compensation and damages for taking the property of individuals. Such compensation and damages shall be paid to the said commissioners, to be expended by them in improving the highways of such town.

Highways may be taken.

New trial

may be

*S 92. No supervisor or commissioner of highways of any town, shall make any agreement with any plank road company or turnpike road company under the first section of "An act in relation to plank road and turnpike road companies," passed November 24, 1847, for the right to take and use any part of any public highway for a plank road or a turnpike road, without they first obtain the consent in writing of at least two-thirds of all the owners of land along such highway, who actually reside on that part of the highway on which such plank road or turnpike road is to be constructed. [1850, ch. 71, § 5.]

*S 93. [Sec. 27.] Any party interested in any such verdict applied for. may within twenty days after being notified of the rendition thereof, apply to the supreme court for a new trial, and it may be granted upon such terms as to the costs of the application and of the first trial as that court shall deem reasonable. If a new trial shall be granted a jury shall be drawn therefor, and the same proceedings shall be had as are hereinbefore provided.

Money,

when to

be paid.

Provision in cases of non-resi. dents.

*S 94. [Sec. 28.] Within forty days after the rendition of any such verdict, if a new trial shall not be applied for, the company shall pay to the person entitled to receive the same the amount thereof, or shall make a legal tender thereof to him if he shall refuse to receive the same; and the company may thereupon enter upon the lands in respect to which such verdict was rendered, and take and hold the same to it and its assigns so long as it shall be used for the purposes of such a road as such company was formed

to construct.

any

*S95. [Sec. 29.] If any person entitled to receive the amount of such verdict be not a resident of this state, or cannot be found therein after diligent search, the company may furnish to the said judge satisfactory proof by affidavit of such fact, and he shall thereupon make an order that the amount of such verdict be paid to the treasurer of the county in which the lands lie, in respect to which such verdict was found for the use of such owner, and that notice of such payment shall be given by publishing the

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