the said company shall not lay any rails along such highway without first obtaining the consent, in writing, of the township committee, surveyors of the highways and chosen freeholders of said township, or a majority of them, to lay the same, which consent shall be filed in the office of the clerk of the county of Essex, and the said railroad and the rails thereof shall be constructed in such manner, and of such size and pattern, as to impair as little as practicable the ordinary `travel in any street or highway in which the said road may be located. by when com owners can not agree. 8. And be it enacted, That if the said company or its Proceedings agent or agents cannot agree with the owner or owners of pany and such required land for the use or purchase thereof, or if reason of the legal incapacity or absence of such owner or owners, no such agreement can be made, a particular description of the land so required for the use of said company in the construction of the said road shall be given in writing, under the oath or affirmation of some engineer or proper agent of said 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 judges of the inferior court of common pleas of the county of Essex, who shall cause the said company to give notice thereof to the persons interested, if known and in this state, or if unknown or out of this state, to make publication thereof as he shall direct, for any time not less than ten days, and to assign a particular time and place for the appointment of the commissioners hereinafter named, at which time and place, upon satisfactory evidence to him of the service or publication of such notice as aforesaid, he shall appoint under his hand and seal, three disinterested, impartial and judicious freeholders, residents of this state, commissioners to examine and appraise the said lands. and assess the damages, upon such notice, not less than ten days, to be given to the persons interested, or otherwise, as shall be directed by the judge making the appointment of commissioners; and it shall be the duty of said commissioners Parties ag grieved may appeal. (having first taken and subscribed an oath or affirmation before some person duly authorized to administer the same) faithfully and impartially to examine the matter in question, and make a true report according to the best of their skill and understanding, to meet at the time and place appointed and to proceed to view and examine the said lands, the said commissioners at the same time taking into consideration all the benefits to be derived from or in consequence of said railroad, as the case may be, to the said owner or owners, and to make a just and equitable appraisement of the value of the same, and an assessment of damages to be paid by the said company, which report shall be made in writing, under the hands and seal of said commissioners, or any two of them, and filed within twenty days thereafter, together with the aforesaid description of the lands, and the appointments and oaths or affirmations aforesaid, in the clerk's office of said county, to remain of record therein, which report, or in case of an appeal, the verdict of a jury and the judgment of the court, and a copy thereof, certified by the clerk of said county, (the damages and costs assessed and adjudged being first paid as hereinafter mentioned) shall at all times be considered as plenary evidence of the right of said company to have, hold, use, occupy, possess and enjoy the said lands, and either of the judges of the said court shall, on application of either party, on reasonable notice to the other, 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. 9. And be it enacted, That in case the said company or owner or owners of the said lands shall be dissatisfied with the report made by the said commissioners named in the preceding section of this act, the party so aggrieved may appeal to the circuit court of the said county of Essex, at the first term after filing of the said report, by proceeding in the form of petition to said court, which proceedings shall vest in said circuit court full right and power to direct a proper issue for the trial of the said controversy between the said parties, and order a jury to be empannelled and sworn as in other cases, and a yiew of the premises to be had, if either of the parties desire it, and the issue to be tried at the next term of said court to be holden in said county, upon like notice and in the same manner as other issues in the said court are tried; and it shall be the duty of the jury to assess the value of the said land and the damages sustained, and if they shall find a greater sum than the commissioners have awarded or the company have offered to the said owner or owners, then judgment thereon, with costs, shall be entered against the 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 a less sum than the commissioners awarded or the company offered, then the said costs shall be paid by the said applicant or applicants, and either deducted out of the said sum found by the said jury, or execution awarded therefor as the court shall direct, but such application shall not prevent the company from taking the said land upon filing the said report;, provided, that in no case whatever shall said company enter upon Proviso. or take possession of the lands of any person or persons for the purpose of actually constructing said railroad or of making any erections or improvements whatever, or otherwise appropriating said lands to the use of the company until they have paid the party or parties entitled to receive the same the amount found by the said commissioners as the value of the said lands or damages, in case the report of the commissioners is not appealed from, or if the same is appealed from, then the amount which shall be found by the jury by whom the issue shall be tried; but in case the party or parties entitled to receive the amount assessed by the commissioners in case there shall be no appeal, or the amount found by the jury in case of appeal, shall refuse, upon tender thereof being made, to receive the same, or shall be out of this state or under any legal disability, then payment of the amount assessed Proviso. Highway to be repaired. Rates for transportation Proviso. or found as aforesaid, into the circuit court of the county of Essex, shall be deemed a valid and legal payment; and further, that the party or parties entitled to receive the amount assessed by the commissioners may, upon tender thereof being made, receive the same without being debarred thereby from an appeal from the report of the commissioners; and it shall be lawful for said company, and they are hereby authorized, with their road, to cross the line of any other railroad; provided, that the grade of the road hereby authorized, at the point or points of crossing such other railroad, shall correspond with the grade of the railroad so to be crossed, or otherwise at such point or points or shall be constructed a viaduct, at such a height as not to interfere with the passage of the trains upon such other railroad. 10. And be it enacted, That in case the said railroad is located on or across any road or highway the said company shall restore such road or highway to such state or condition as not to impair its usefulness. 11. And be it enacted, That the president and directors of said Belleville and Newark Horse Car Railroad Company shall have power to have constructed, or to purchase with the funds of the company, and place and use on said railroad, cars, wagons, carriages or vehicles for the transportation of persons or any species of property, with such motive power as they may think reasonable, expedient or right, but that no steam power shall be used in passing on or over any public road or highway without the permission of the public authorities of the city or township before mentioned; and they are hereby authorized to demand and receive such sum or sums of money for the transportation of persons, and every species of property whatsoever thereon, as they from time to time shall think reasonable and proper; provided, that they shall not charge more than five cents per mile for each passenger, and twenty-five cents per ton per mile for the transportation of every species of heavy merchandise and goods as usually weigh by the ton, in the carriages of the company, and for dry goods and packages such reasonable rates as shall be fixed by the board of directors, or six cents per ton per mile dividends may 12. And be it enacted, That the president and directors semi-annual may, within one year after the said railroad shall have been be made. completed, declare and make such dividends of the net profits |