in case compa owning rights, cannot agree. company to the owner or owners of the land, bridges, or parts thereof, property or materials, in controversy, or tendered, and if refused, deposited in the supreme court; pro- Proviso. vided, that such appeal or application shall not prevent the said company from taking the said land, bridges, viaducts, or part thereof, property and materials, upon the filing of the aforesaid report, and payment, or tender of payment, and deposit in the supreme court of the sum assessed as aforesaid. 5. And be it enacted, That if the said company shall fail Proceedings to agree with the person or persons, corporation or corpora- ny and persons tions, claiming to own or owning any right, privilege, fran- franchises, &c. chise or property, for the exercise, use, appropriation or purchase thereof, or so much thereof as shall be necessary to carry out the objects of this act, and to construct, maintain and operate said railroad, its spurs and branches; or if, by reason of any legal incapacity, or absence of the owner or owners, or want of knowledge as to the ownership thereof, or from any other cause, no such agreement shall be made, application shall be made in writing by the said company, by its president or other officer, for the appointment of commismissioners, who, or a majority of whom, shall examine the matter and report what (if any exist,) and how much and what part of any rights, privileges, franchises and property are necessary to be taken and appropriated, exercised or used for the purposes of this act, and to construct, maintain and operate said railroad, its spurs and branches; and said commissioners, or a majority of them, shall do and perform the other duties hereinafter mentioned; that such application shall be made to the chief justice of the supreme court, setting forth what person or persons, corporation or corporations, they are informed claim some rights, privileges, franchises or property for which compensation may be asked; and said judge shall cause the said company to give such notice of said application as he shall direct, not less than ten days, to any such person or persons, corporation or corporations so named, or who may be interested, if known and in the state, or if unknown or out of the state, to make publica- tion thereof as he shall direct, for any term not less than ten days, and to assign a particular time and place for the appointment of said commissioners; such notice, if to a corporation or corporations, may be given to the president or other agent thereof, at which time and place, upon satisfactory evidence to him of the service or publication of such notice aforesaid, he shall appoint, under his hand and seal, three disinterested, impartial and judicious freeholders, residents of the state, not residents of the counties of Hudson or Essex, such commissioners; and they, or a majority of them, having first taken 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, shall meet at a time and place to be appointed by said judge in his said order of appointment upon such notice to said person or persons, corporation or corporations so named, or their president or other agent thereof, and to those interested, or to the president or agent thereof, as said judge shall direct, not less than ten days, and proceed to view and examine the matter and the route of said railroad, so far as the same shall be located, and examine the matter, and report in writing what, (if any exist,) and how much and what part of any rights, privileges, franchises and property are necessary to be taken and appropriated, exercised or used for the purposes of this act, and to construct, maintain and operate the said railroad, its spurs and branches, and the nature thereof, and shall make a just and equitable assessment or appraisement of the value of (if any such exist,) the said rights, privileges, franchises and property, or so much thereof as may be necessary as last aforesaid, and assessment of damages as shall be paid by the said company for the same, and damages aforesaid, which report shall be made in writing, under the hands and seals of the same commissioners, or any two of them, and filed within ten days thereafter, together with the said application and the appraisement and oaths or affirmations aforesaid, in the clerk's office of either the coun ties of Essex or of Hudson, to remain of record therein, which report, or a copy thereof, certified by the clerk of the said county; or in case of appeal, the verdict of the jury and the judgment of the supreme court thereon, or a copy thereof duly certified by the clerk shall, (the appraisement, assessment, valuation and damages being first paid to, or if they refuse the same, or are unknown, or labor under any disability, then deposited for the owner or owners in the supreme court,) at all times be considered as plenary evidence of the right of the said company to take, have, hold, use, occupy, possess, exercise, appropriate and enjoy so much and such parts of said rights, privileges, franchises and property so necessary to be taken, appropriated, exercised or used, and so compensated for; and any judge of the court last mentioned shall, on application of either party, on reasonable notice to the others, tax and allow such costs, fees and expenses to the judges of the said court, commissioners, clerks, and other persons performing any of the duties prescribed in this section, as he shall think equitable and just, and to order and direct by whom the same shall be paid. grieved may 6. And be it enacted, That in case the said company, or Parties agthe owner or owners or claimants of the said rights, privi- uppeal. leges, franchises and property, shall be dissatisfied with the report of the commissioners named in the preceding section, either shall appeal to the supreme court at its next term, after the filing of the said report, by proceeding in form of petition to the said court, which proceedings shall vest in said court full right and power, after the filing of the said petition, to direct a proper issue for the trial of the said controversy, to be formed between the said parties, and to order a jury to be struck, and a view of the said road or so much thereof as shall be located, to be had, if either party shall desire it, that the said issue shall be tried at the next, or subsequent term to which the said issue may be continued, of the circuit court, to be holden in the county in which the supreme court shall direct the trial to be had, upon the like notice, and in the same manner as other issues in said court are tried by jury, Proviso. Company to keep road in repair. and it shall be the duty of said jury to assess the value of the said rights, privileges, franchises, and property, if any such exist, or so much thereof as may be necessary to be taken, appropriated, used or exercised, to carry out the purposes of this act, and to construct, maintain, and operate the said railroad, its spurs and branches, and assessment of damages; and if they shall find a greater sum than the said commissioners have awarded or the company have offered to the said owner or owners, then judgment thereon, with costs, shall be entered in the supreme court against said company, and execution awarded thereon; and if the said appeal shall be applied for by the owner or owners, and the jury shall find the same or less sum than the commissioners awarded, or the company offered, then the said costs shall be paid by the said appellant or appellants, and either deducted out of the said sum found by the said jury, or execution awarded therefor, as the said supreme court shall direct, and the sum awarded by the commissioners, or in case of appeal from the award of the commissioners, then the sum assessed by the jury, and such costs as the supreme court shall direct, shall be paid by the company to the owner or owners, or for them, into the supreme court; provided, that such appeal shall not prevent the company from taking and appropriating, exercising, using and enjoying the said rights, privileges, franchises, and property, or so much thereof as said commissioners shall assess and appraise, upon the filing of the aforesaid report, and paying the assessment and appraisement aforesaid, or making tender thereof, and depositing the same in the said supreme court for the owner or owners thereof. 7. And be it enacted, That the said company shall cause the said railroad, its spurs and branches, to be kept in repair, and shall construct necessary draws, which draws shall be placed parallel with the current of the said river, with not less. than sixty-five feet openings on their viaducts over said rivers, and shall keep the same duly attended, and furnished with proper lights and signals, so as to do as little as possible damage to the navigation of said river. use other ment of legal rates. 8. And be it enacted, That it shall be lawful for the said company may company to run, or cause to be run, their engines and cars, roads on payand transport their freight and passengers therein to, upon, i and over any portion or portions of any railroad or railroads which are public highways, and to, upon, and over any bridge, bridges, viaduct or viaducts of any other corporation or corporations, and for that purpose to make and construct, or cause to be constructed, such means of access to and departure from the same as may be convenient, proper and necessary, paying therefor according to the distance used, at the rate per mile per passenger and ton authorized by law to be charged; and so much of the railroad and tunnel of the Long Dock Company as this company have contracted for the use of with the said Long Dock Company shall be deemed and held as part of the railroad authorized to be constructed by this act, and said contract is hereby authorized, affirmed, made valid and effectual in law; but nothing in this act shall authorize the taking of the road or track of the Long Dock Company or the Erie Railroad Company, except as set forth and contained'in said contract with said Long Dock Company or Erie Railroad Company; provided however, that the last Proviso. proviso in the first section of this act shall limit and qualify this section in the same manner as if it were here again repeated. make con tions for trans 9. And be it enacted, That it shall be lawful for the said Company may company, at any time during the continuance of its charter, tracts with to make contracts and engagements with any other corpora-portation. tion, or with individuals for transporting or conveying any kind of goods, produce, merchandise, freight or passengers, and to enforce the fulfillment of such contracts, and that the said company may, on such terms, conditions, stipulation, and for such considerations as they shall deem expedient, demise for such term of years as they shall deem expedient, or transfer, sell and dispose of absolutely all or any part of the franchises, powers and privileges by this act granted, and all or any part of said railroad, its spurs and branches, and all or any part of its land, franchises and property, to be acquired |