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property defined.

SEC. 1240. The private property which may be taken Private under this title, includes:

1. All real property belonging to any person;

2. Lands belonging to this State, or to any county, incorporated city, or city and county, village, or town, not appropriated to some public use;

3. Property appropriated to public use; but such property shall not be taken unless for a more necessary public use than that to which it has already been appropriated;

4. Franchises for toll roads, toll-bridges, and ferries, and all other franchises; but such franchises shall not be taken unless for free highways, railroads, or other more necessary public use;

5. All rights of way for any and all the purposes mentioned in section one thousand two hundred and thirty-eight, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed or intersected by any other right of way or improvements or structures thereon. They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury;

6. All classes of private property not enumerated may be taken for public use, when such taking is authorized by law.

Sec. 1241. Before property can be taken, it must appear : Facts

1. That the use to which it is to be applied is a use author- to be found ized by law;

2. That the taking is necessary to such use;

3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

SEC. 1242. In all cases where land is required for public Parties use, the State, or its agents in charge of such use, may sur- location. vey and locate the same; but it must be located in the manner which will be most compatible with the greatest public good and the least private injury, and subject to the provisions of section one thousand two hundred and forty-seven. The State, or its agents in charge of such public use, may enter upon the land and make examinations, surveys, and maps thereof, and such entry shall constitute no cause of

necessary

by Court before condemnation.

may make

Jurisdiction in District Court.

The complaint and its contents.

action in favor of the owners of the land, except for injuries resulting from negligence, wantonness, or malice.

SEC. 1243. All proceedings under this title must be brought in the District Court for the county in which the property is situated. They must be commenced by filing a complaint and issuing a summons thereon.

SEC. 1244. The complaint must contain:

1. The name of the corporation, association, commission, or person in charge of the public use for which the property is sought, who must be styled plaintiffs;

2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants;

3. A statement of the right of the plaintiff;

4. If a right of way be sought, the complaint must show the location, general route, and termini, and must be accompanied with surveys and maps thereof;

5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract.

All parcels lying in the county, and required for the same public use, may be included in the same or separate proceedings, at the option of the plaintiff, but the Court may consolidate or separate them, to suit the convenience of parties.

When application for the condemnation of a right of way for the purposes of sewerage is made on behalf of a settlement, or of an unincorporated village or town, the County Judge alone must be named as plaintiff. (Amendment, approved March 24, 1874; Amendments 1873-4, 3:55; took

effect July 1, 1874.) Summons,

SEC. 1245. The Clerk must issue a summons, which must contain.

contain the names of the parties, a general description of the whole property, a statement of the public use for which it is sought, and a reference to the complaint for descriptions of the respective parcels, and a notice to the defendants to appear and show cause why the property described should not be condemned as prayed for in the complaint. In all other particulars it must be in the form of a summons in civil actions, and must be served in like manner.

SEC. 1246. All persons in occupation of or having or the answer claiming an interest in any of the property described in the may show.

complaint, or in the damages for the taking thereof, though

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not named, may appear, plead, and defend, each in respect to his own property or interest, or that claimed by him, in like manner as if named in the complaint.

Sec. 1247. The Court shall have power:

1. To regulate and determine the place and manner of diction to making connections and crossings, or of enjoying the com- mode mon use mentioned in the fifth subdivision of section one

of eujoying thousand two hundred and forty;

2. To hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the damages therefor;

3. To determine the respective rights of different parties seeking condemnation of the same property.

SEC. 1248. The Court, jury, or referee must hear such legal Court or jury testimony as may be offered by any of the parties to the pro- damages. . ceedings, and thereupon must ascertain and assess:

1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed;

2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff;

3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed, under subdivision two, the owner of the parcel shall be allowed no compensation except the value of the portion taken; but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value;

4. If the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle-guards where fences may cross the line of such railroad;

shall be assessed, and measure thereof.

New pro

ceedings to

tive title.

Payment of

5. As far as practicable compensation must be assessed for

each source of damage separately. Date with SEC. 1249. For the purpose of assessing compensation and which com- damages, the right thereto shall be deemed to have accrued pensation

at the date of the summons, and its actual value, at that date, shall be the measure of compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed, as provided in section one thousand two hundred and forty-eight. If an order be made letting the plaintiff into possession, as provided in section one thousand two hundred and fifty-four, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subsequent to the date of the service of summons, shall be included in the assessment of compensation or damages.

Sec. 1250. If the title attempted to be acquired is found to cure defec- be defective from any cause, the plaintiff may again institute

proceedings to acquire the same, as in this title prescribed.

SEC. 1251. The plaintiff must, within thirty days after damages, or deposit of final judgment, pay the sum of money assessed; but may, at

the time of or before payment, elect to build the fences and cattle-guards; and if he so elect, shall execute to the defendant a bond, with sureties, to be approved by the Court, in double the assessed cost of the same, to build such fences and cattle-guards within eighteen months from the time the railroad is built on the land taken, and if such bond be given, need not pay the cost of such fences and cattle-guard. In an action on such bond, the plaintiff may recover reasonable attorney's fees.

SEC. 1252. Payment may be made to the defendants entiwhom paid. tled thereto, or the money may be deposited in Court for the

defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money cannot be made on execution, the Court, upon a showing to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if possession has been taken by the plaintiff.

Sec. 1253. When payments have been made and the bond nation, what given, if the plaintiff elects to give one, as required by the

bond therefor.

Damages, to

last two sections, the Court must make a final order of con

Final orrler of condem.

to contain.

demnation, which must describe the property. condemned and the purposes of such condemnation. A copy of the order must be filed in the office of the Recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified.

SEC. 1254. At any time after trial by jury and judgment Putting entered upon their verdict, or pending an appeal from the possession. judgment to the Supreme Court, whenever the plaintiff shall have paid into Court, for the defendant, the full amount of the judgment, and such further sum as may be required by the Court, or Judge thereof at Chambers, as a fund to pay any further damages and costs that may be recovered in said action, as well as all damages that may be sustained by the defendant, if, for any cause, the property shall not be finally taken for public use. The District Court in which the action was tried, or the Judge thereof at Chambers, may, upon notice of not less than ten days, authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant, who is entitled to the money paid into Court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter, upon obtaining an order therefor of the Court, or Judge thereof at Chambers. It shall be the duty of the Court or Judge, upon application being made by such defendant, to order and direct that the money, so paid into Court, for him, be delivered to him upon his filing a satisfaction for the judgment, or upon filing a receipt therefor, and an abandonment of all defenses to the action, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment, by such defendant, of all defenses interposed by him, excepting his claim for further compensation. In ascertaining the amount to be paid into Court, the Court, or Judge thereof at Chambers, shall take care that the same be sufficient and adequate. The payment of the money into Court, as hereinbefore provided for, shall not discharge the plaintiff from liability to keep the said fund full and without diminution; but such money shall be and remain, as to all

plaintiff in

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