adjacent or near to the route of said road or branches, and search for and take sand, gravel and stone, if necessary, for the erection or repair thereof, subject to such compensation to the owners of such lands, waters or materials, as is hereinafter provided: provided always, that payment, or tender of the payment of all damages, for the occupation of lands through which the said said rail road or branches thereof may be laid out, be made before the said company, or any person in their employment, or under their direction, shall enter upon, or break ground in the premises, except for the purpose of surveying and laying out said road or branches, or searching for sand, gravel or stone, unless the consent of the owner or owners of such lands be first had and obtained.

Provica

Jands cannot

Sec. 8. And be it enacted, That when the company or its Proceedings agents, cannot agree with the owner or owners of such rein case comquired lands or materials, for the use or purchase thereof, or pany and when by reason of the legal incapacity or absence of such owners of owner or owners, no such agreement can be made, a particular descrption of the land or materials so required, for the use agro, &. of said company, in the construction or repairs of said road, shall be given in writing under oath or affirmation of some engineer or proper agent of the company, and also the name or names of the occupant or occupants, if any there be, and of the owner or owners if known, and their residence if the same can be ascertained, to one of the justices of the Supreme Court of this state, who shall cause the said company to give notice thereof to the persons interested, if known and resident in this state, or if unknown or out of this state, to make publication thereof, as he shall direct, for any term not less than twenty days, and to assign a particular time and place for the appointment of commissioners hereinafter named, at which time and place, upon satisfactory evidence to him of the service or publication of such notice as afore said, he shall appoint, under his hand and seal, three judi cious, impartial and disinterested freeholders, not resident in the county in which the lands or materials in controversy lie, or the owners reside, commissioners, to examine and ap praise the said land or materials, and to assess the damages; but if a resident of the state then the parties each to choose one Commissioner, and they two to choose a third who together shall assess the damages; the said commissioners are also directed and required to assess the damages which any individual may sustain by the said road, arising from the removing, making and maintaing the fencing on the line of the said route, through any improved lands through which the same may run, upon such notice to be given to the persons interested, as shall be directed by the justice making such

appointment, to be expressed therein, not less than twenty days; and it shall be the duty of the said commissioners, having first taken and subscribed an oath or affirmation before some person duly authorized to administer an oath, "faithfully and impartially to examine the matter in question, and to make a true report, according to the best of their skill and understanding," to meet at the time and place appointed, and proceed to view and examine the said lands or materials, and make a just and equitable estimate or appraisement of the value of the said lands or materials, and assessment of the damages sustained by the owner or owners thereof, by reason of the taking the same for the use of the company, which shall be paid by the company for such lands or materials, or damages aforesaid; and the said commissioners shall make a report in writing, under their hands or the hands of any two of them of the value of said lands, materials and damages, which report shall, within ten days thereafter, be filed, together with the aforesaid description of the land or materials, and the appointment and oaths or affirmation aforesaid in the clerk's office of the county in which the said lands or materials are situate, to remain of record therein; and the said report, or a copy thereof certified by the clerk of the said county, shall at all times upon depositing double the amount of damages in the hands of the county collector to be held as security for the payment of any amount which may be assessed, and upon compliance of which may be considered plenary evidence of the right of the said company to have, hold, use, occupy, possess and enjoy the said lands or materials, and of the right of the said owner or owners to recover the amonut of the said valuation and assessment, with interest and costs, in an action of debt, in any court of competent jurisdiction, in a suit to be instituted against the company, if they shall neglect or refuse to pay the same for twenty days after demand made of their treasurer, and until the same be paid, shall constitute a lien upon the property of the company, in the nature of a mortgage; and the said justice of the Supreme Court shall, on application of either party, and on reasonable notice to the others, tax and allow such costs, fees and expenses to the justices of the supreme court, commissioners, clerks, and other persons performing any of the duties prescribed in this section, as he or they shall think equitable and right, which costs shall be paid by the said company.

Sec. 9. And be it enacted. That in case the said company, Parties dis- or the owner or owners of the said lands or materials, shall satisfied may be dissatisfied with the report of the commissioners named in the preceding section, and shall apply to the justices of the

have trial by

Jury.

supreme court, at the next term after the filing of the said report, the said court shall have power, on good cause shown, to set the same aside, and thereupon to direct a proper issue for the trial of said matter in controversy, to be formed between the said parties, and to order a jury to be struck, and a view of the premises or materials in question to be had, and the said issue to be tried at the next circuit court, to be holden in the said county, in the same manner as other issues in fact are tried in said court, upon twenty days notice of trial, and six days notice of the view being given by either party to the other; and upon such trial, it shall be the duty

of the said jury to assess the value of the said lands or mate- Jary to assessrials, and damages sustained, by reason of the taking thereof damages. as aforesaid; and if they shall find a greater sum than the said commissioners have awarded in favor of the said owner or owners, then judgment thereon, with costs, shall be entered against the said company, and execution be awarded therefor; but if the said jury shall be applied for by the said owner or owners, and shall find the same, or a less sum than the said commissioners have awarded, then the costs shall be paid by the applicant or applicants, and deducted out of the sum so found by the jury, or execution awarded therefor, as the court shall direct; provided, that such application for an issue shall not prevent the said company from taking and using the said lands or materials, upon the filing of the said report and tender of the sum awarded by the commissioners, after depositing double the amount in the hands of the County collector as directed in the eighth section of this act.

Proviso.

Sec. 10. And be it enacted, That it shall be the duty of the said company to construct and keep in repair, good and Company to sufficient bridges or passages over or under the said rail road make and repair bridges, or roads, where any public or other road shall cross the same, &c. or so that the passage of carriages, horses and cattle on said road or roads shall not be impeded thereby; and also where the said road or roads shall intersect any farm or lands of any individual, to provide and keep in repair suitable wagon ways over or under said road, so that they may pass and re-pass the same.

transporta

Sec. 11. And be it enacted, That the president and directors of said company shall have power to have constructed, Rates for or to purchase with funds of the company, and to place and passages and use on any rail road constructed by them, all such machines, tion. engines, carriages, wagons, or vehicles, for the transportation of persons or property thereon, as they shall think proper and expedient, and to charge, take, and receive compensation for the transportation of persons or property on said road or roads; provided, they shall not charge more than at the rate of six

Dividends to

be made semi anually.

Penalty for injuring or obstructing road.

What real

estate may be held.

Provise.

cents per mile per ton for the transportation of property on the said road or roads, or six cents per mile for carrying each passenger on said road or roads in the carriages of the company, or three cents per mile for each ton of property transported, or three cents per mile for each passenger carried on said road or roads, in the carriages of others, and three cents per mile for each empty carriage; and the said rail road or roads and their appendages, and the lands over which the same shall pass, and all the works and improvements, steam engines, carriages, and all other property whatsoever belonging to the said company, at any time or times, are hereby invested in the said company, incorporated by this act, and their successors and assigus, during the continuance of this act.

Sec. 12. And be it enacted, That the president and directors of the said company shall, within one year after the said rail road shall have been completed, declare and make such dividend of the nett profits thereof among the stockholders as they may deem prudent, and shall, in like manner, semiannually thereafter, declare such dividends, and pay the same to the stockholders of the said company, or their legal representatives, in proportion to the amount of stock held by them respectively as they may deem proper.

Sec. 13. And be it enacted, That if any person or persons shall wilfully injure, destroy, or obstruct the use of any rail road constructed under the provisions of this act by the said company, or of any of their necessary works, wharves, bridges. carriages, or machines, such person or persons so offending, shall forfeit and pay the said company the sum of fifty dollars, to be by them recovered in any court of competent jurisdiction; and further, shall be liable for all damages sustained.

Sec. 14. And be it enacted, That the said company may have and hold real estate at the commencement and termination of said road or roads, and other places along the same, not exceeding two acres at each place, and may erect and build thereon, ware houses, machine shops, and such other buildings and improvements as they may deem expedient for the safety of property, and the construction of carriages and other necessary uses, and take and receive the rents, profits, and emoluments thereof; Provided, that if it should be necessary to use stationary power on any part of the line of said rail road, and water power can be advantageously used therefor, then it may be lawful for said company to have and hold so much additional land and real estate as may be necessary and useful in constructing the same; and also to make the necessary embankments, reservoirs, aqueducts, and other works necessary to create such power thereon.

Sec. 15. And be it enacted, That the said road or roads,

authorized by this act, be, and the same are hereby declared Rail road & to be public highways, and shall be constructed with a track, public highfor one or more horses, and free for the passage of any rail way. road carriage thereon, with passengers or property, upon the payment of the tolls prescribed by this act; provided always, that the said carriages so used thereon, shall be of the same description in the formation of the wheels and length of the axle, as those used by the company, and shall be so regulated as to the times of starting, and speed of travelling, as not to interfere with the carriages of the company.

Rail road

Statement of

Sec. 16. And be it enacted, That in case the said road or roads shall not be commenced within five years, and comple- when to be ted within fifteen years from the passage of this act, then and completed. in that case, this act shall be null and void; and that the president or treasurer of said company shall, within one year after the completion of the said road or roads, file in the office of the Secretary of this State, under oath or affirmation, a statement of the whole cost and expenses of the said road or costs to be roads and appendages; and annually thereafter a statement filed. of the nett proceeds thereof; and whenever the annual nett proceeds of the said road shall amount to seven per centum per annum upon the cost of the said road or roads with their appendages, the said company shall pay to the treasurer of this State, the one-half of one per cent. per annum on the said cost, to be paid on the first Monday in January in each year; provided, that no other tax or impost for the use of this State, but this exemption shall not extend to or include taxes for township and county purposes, shall be levied or assessed upon said company.

Sec. 17. And be it enac'ed, That the said company shall Company to be required to make, put up and keep in repair, good and make fences. lawful fences on both sides of said rail road, wherever the same shall pass over, and be laid out on any farm or lands, from the commencement of said route to its termination.

Sec. 18. And be it enacted, That this act shall be deem- Act to be ed and taken as a public act, and recognized as such at all deemed a times and in all courts and places whatever.

public act.

Sec. 19. And be it enacted, That this act shall take effect from and after the passage thereof, and shall continue in force Act when to for the space of thirty years; Provided that the Legislature take effect. may at any time alter, modify or repeal the same whenever

the public good shall require it.

Passed March 13, 1844.