lease, or arrangement perfected, until a meeting of the stockholders of each of said companies shall have been called by the directors t'ereof, at such time and place and in manner as they shall designate, and the holders of at least two-thirds of the stock of such company, represented at such meeting either in person or by proxy and voting thereat, shall have assented thereto. [Amended 1889, chap. 89.]

SEC. 95. [Right of way-Damages.]—Any railroad corporation may purchase and use real estate for a price to be agreed upon with the owners thereof; or the damages to be paid by such corporation for any real estate taken as aforesaid, when not agreed upon, shall be ascertained and determined by commissioners to be appointed by the probate judge of the county wherein such real estate is situated, in conformity with the provisions of this subdivision; Provided, That if the company shall need or require,

SECS. 95, 96, 97. Cited 16 Neb. 172.

SECS. 95, 97. DECISIONS UNDER THESE SECTIONS AND GENERALLY ON THE EXERCISE OF POWERS OF EMINENT DOMAIN. In taking appeal no bond required, nor is it necessary to file pleadings. 6 Neb. 160. But on appeal, company cannot disprove the title of person to whom damages are awarded, without pleading his want of title. 13 Neb. 491. 14 Id. 271, 356. And company cannot dispute ownership of plaintiffs in land taken. 17 Neb. 589. Owner of land is plaintiff in district court on appeal; must prove his damages if company fail to appear. 17 Neb. 460. Land owner on trial entitled to open and close argument. 17 Neb. 432. Appeal from assessment of damages for right of way perfected by filing transcript of county judge in district court within sixty days. 20 Neb. 543. Where both parties appeal, cases will not be dismissed for want of notice. 15 Neb. 236. If, on appeal, damages exceed that found by commissioners, owner is entitled to interest. 13 Neb. 320. And where company dismisses ap. peal land owner is entitled to interest. 23 Neb. 631. 24 Id. 130. Costs on appeal. 24 Neb. 126, 130. Decision of general manager sufficient to warrant exercise of right. 13 Neb. 364. One appropriation does not exhaust power; new appropriations may be made as necessity of road requires. Id. 365. Lease of road does not deprive lessor of right to. Id. 366. 14 Id. 390. Award; non-deposit of damages; owner may bring action for amount, injunction to restrain operation of road, or trespass. 4 Neb. 24. Injunction lies, if damages not deposited. Id. 439. Ejectment lies for real estate illegally occupied; defective proceedings no defense. 21 Neb. 375. Title to property in two persons; after acquired interest by one; award made accordingly. 25 Neb. 51. Award allowing party to "move back his house," Held, Valid. Id. 24. Before road can appropriate right of way, damages must have been appraised and the amount thereof paid to the land owner or deposited with county judge. If damages not awarded and deposited corporation is liable in trespass. 18 Neb. 86. Statutory mode of acquiring right of way is exclusive as to manner of assessing value of land taken with damages to residue of track, but does not include damages to possession caused by the wrongful entry upon the land before condemnation. Id. 87. Measure of damages in such cases does not, before the award of commissioners, include value of land taken. Id. 88. Condemnation of property for right of way upon which there is a mortgage; company failing to notify mortgagee, Held, Liable upon foreclosure of mortgage, although it had paid condemnation money to mortgagor. 20 Neb. 181. Condemnation money found due owner of land should be applied first, to the payment of the amount due upon the mortgage, and the remainder to the holder of the legal title. Id. Evidence on trial of questions appertaining to damages for right of way, etc., testimony of experts. 11 Neb. 591. Competent witness may testify as to value of land immediately before location and immediately after; in estimating value after location witness may take into consideration all elements caused by the construction of the road which would tend to diminish the value of the property. 25 Neb. 211. 13 Id. 487. Owner of land and persons residing in the vicinity competent to testify as to value. 14 Neb. 423. Witness not competent to give opinion as to damages caused by injury to crops. Id. [See B. & M. R. R. v. Beebee, 14 Id. 471.] And without a showing there is no presumption that a witness is competent to give a reliable estimate of the market value of land. 13 Neb. 487. 15 Id. 233. Owner may testify as to business he is engaged in on track of land taken. 13 Neb. 488. It seems that future benefits and profits should not be considered. Id. Nor injuries to property outside of right of way, such as growing crops, etc. 14 Neb. 424. Nor inadequacy of culverts, want_of track crossings, etc. 11 Neb. 596. Nor injuries caused by negligence in construction and operation of road. Id. 590. Land owner entitled to full compensation for land actually taken and such damages to the residue of the tract as are equivalent to the diminution of the value thereof-general benefits not to be considered. 25. Neb. 545. Evidence of what plaintiff paid for property inadmissible to prove its market value. 12 Neb. 229. Court should render judgment on verdict. Id. 231. And award execution; railroad cannot abandon lot after condemnation and avoid payment. 15 Neb. 370. Witness having no knowledge of construction and operation, not competent to give opinion as to needs of railroad in respect to depot, or other grounds. 13 Neb. 362. General rule in estimating damages; special benefits. 11 Neb. 588, 591, 597. 15 Id. 241, 526. Valuation should be made as of the time of the filing of the petition for assessment of damages. 15 Neb. 229. Damages to be estimated at time property is taken. 24 Neb. 129. Where petition was filed in June, evidence of value in August, Held, Admissible. 25 Id. 55. Objection as to the mode of proof of damages not made on trial, not available on error. 13 Neb. 491. Remote damages not estimated. 11 Neb. 590. Damages caused by taking right of way in a diagonal direction across land may be shown. 15 Neb. 234. And the inconvenient shape in which the remainder of land is left, etc. 15 Neb. 227. Statutory mode of assessing damages for right of way not applicable where property is damaged, but no portion thereof taken. 15 Neb. 282. Damages for right of way; special facts; instructions to jury upheld. Id. 524. Damages caused to lot abutting on alley or highway along which railroad runs. 14 Neb. 560. Damages by occupancy of lot next to plaintiff's lot. 16 Neb. 118. Sale of lots to does not estop owner from claiming damages to other remote and detached real estate injuriously affected by construction of railroad. 16 Neb. 172. Liable for damages to land adjoining crossing of public highway, if such land is isolated and inaccessible. 16 Neb. 272. Obstructing street in city. 15 Neb. 281. When built on public road owner of land is entitled to recover damages by reason of the additional burden placed thereon by appropriation of the road to use of railway company. A purchaser of real estate and holding same by contract may maintain action in such case for damages sustained. Holder of legal title should be joined, but if no objection is made for non-joiner, equitable owner may recover his actual damages. 15 Neb. 126. One in possession of U. S. timber-culture claim for less than ten years, whose possession is not injured or disturbed, cannot maintain action for damages to the land itself caused by construction of railroad on public road which passes along one side of such claim. Id. Where several tracts are used together as one farm or body of land injury to the whole thereof should be considered. 25 Neb. 52. Withdrawal of depos ited condemnation money from county clerk, Held, An abandonment of all rights of possession of real estate condemned. 21 Neb. 386. Land of non-resident; service by publication; no authority for assessment of damages nine months after date fixed in notice. 21 Neb. 384. Paper headed "transcript" consisting of certified copy of report of commissioners appointed to assess damages, etc., containing their assessment and award, Held, Sufficient to give appellant court jurisdiction. 22 Neb. 92. Petition prima facia sufficient to authorize company to condemn real estate without proof of its incorporation, there being no denial of the fact in the answer. 23 Neb. 615. Question of damages for right of way one of fact for jury. 24 Neb. 708. 25 Id. 52. Lot owner deprived of free use of adjacent street. 26 Id. 364. Evidence of damages. 28 Neb. 94.

for the purpose of constructing said railroad, to take and occupy any real estate, in any unorganized county, or other unorganized country in this state, where there is no probate judge, then the probate judge of the first organized county east of said lands upon the line of said road shall appoint commissioners to assess said damages, and to perform all other duties required by the probate judges and commissioners by the terms of this subdivision, and either shall have the right to appeal, as in other cases provided for by this subdivision.

SEC. 96. [Property of minors.]-Whenever any railroad corporation shall take any real estate as aforesaid, of any minor, insane person, or any married woman whose husband is under guardianship, the guardian of such minor or insane person or such married woman with the guardian of such husband may agree and settle with said corporation for all damages, or claims by reason of the taking of such real estate, and may give valid releases and discharges therefor.

SEC. 97. [Appraisement of damages-Appeal.]-If the owner of any real estate over which said railroad corporation may desire to locate their road shall refuse to grant the right of way through his or her premises, the county judge of the county in which said real estate may be situated, as provided in this subdivision, shall upon the application of either party direct the sheriff of said county to summon six disinterested freeholders of said county, to be selected by said county judge, and not interested in a like question, unless a smaller number shall be agreed upon by said parties, whose duty it shall be to carefully inspect and view said real estate, and assess the damages which said owner shall sustain by the appropriation of his or her land to the use of said railroad corporation, and make report in writing to the county judge of said county, who, after certifying the same under his seal of office, shall transmit the same to the county clerk of said county for record, and said county clerk shall file, record, and index the same in the same manner as is provided for the record of deeds in this state, and such record shall have the like force and effect as the record of deeds in pursuance of the statute in such case made and provided. And if said corporation shall at any time before they enter upon said real estate, for the purpose of constructing said road, pay to said county judge for the use of said owner the sum so assessed and returned to him as aforesaid, they shall thereby be authorized to construct and maintain their said road over and across said premises; Provided, That either party may have the right to appeal from such assessment of damages to the district court of the county in which such lands are situated, within sixty days after such assessment. And in case of such appeal the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified to the county clerk, to be filed and recorded as hereinbefore provided, in his office. But such appeal shall not delay the prosecution of the work on said railroad if such corporation shall first pay or deposit with such county judge the amount so assessed by said freeholders. Such railroad company shall in all cases pay the costs of the first assessment; Provided, That if, on appeal, the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal; Provided further, That either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court. [Amended Laws 1883, chap. XVII. Took effect June 1, 1883.]

SEC. 97. a. [Right of appeal.]—That either party shall have the right to appeal to the district court of the county where the lands are situated from the assessment of damages allowed and mentioned in section ninety-seven (97) of chapter sixteen (16) of the Compiled Statutes (1885) of Nebraska, at the time and in the manner hereinafter specified and set forth. [1887, chap. 16.]

SEC. 97. Deposit compelled by mandamus. 27 Neb. 694. 47 N. W. R. 857. 27 Neb. 73. New pleadings unnecessary when amount due the only question. verdict exceeds award. 28 Neb. 166. Requisites of application. 33 Neb., 171. tion exclusive. 35 Id., 48. SEC. 97 a.

Motion to dismiss appeal improper28 Neb. 94. Interest allowed when Remedy for determining compensa

An act to provide for the taking and prosecution of appeals allowed and mentioned in section ninety-seven (97) of chapter sixteen (16) of the compiled statutes (1885) of the state of Nebraska. Laws 1887. chap. 16. Took effect March 31, 1887.

SEC. 97. b. [Bond.]-That the party appealing shall within sixty days after such assessment enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by the county judge of such county; conditioned, first, that the appellant shall prosecute such appeal to effect without unnecessary delay; and second, that if judgment be adjudged against the appellant on the appeal, the appellant shall satisfy whatever judgment may be adjudged against such appellant [Id. § 2.]

SEC. 97. c. [Same-Summons.]-That the party appealing may file such undertaking in the office of the clerk of the appellate court within the time aforesaid, which undertaking filed shall be approved by such clerk; upon the filing and approv al of which undertaking the clerk shall issue a summons to the appellee to appear at the term of the court to which the appeal is returnable, which summons shall be served and returned in the time and manner as in cases commenced in the district court. [Id. § 3.1

SEC. 97. d. [Trial.]—That when the appeal is taken by filing the appeal undertaking with the clerk of the appellate court, and a summons and alias summons shall have been duly issued against the appellee and returned "not found," it shall be lawful for the appellate court to proceed and try the appeal the same as if the appellee had been duly served with the process. [Id. § 4.]

SEC. 97. e. [Transcript.]-That said county judge shall, on demand of the appellant, make out a certified transcript of all the proceedings of such assessment, including the undertaking, and such of all papers and files as relate to or are connected with the assessment or assessments appealed from, and shall, on demand, deliver the same to the appellant, or his, her, or its agent, who shall deliver the same to the clerk of the appellate court, to which such appeal may be taken, on or before the first day of the next term of such appellate court. [Id. § 5.]

SEC. 97. f. [Same-Filing.]-That if such appeal shall be taken within less than twenty days next preceding said first day of said next term of appellate court, this said transcript shall be filed with said clerk on or before the first day of the next succeeding term of said appellate court. [Id. § 6.]

SEC. 97. g. [Docketing cause-Proceedings.]—That said clerk, on receiving such transcript and other papers as aforesaid, shall file the same and docket the appeal; the owner of the land shall be the plaintiff in the appellate court, and the railroad company the defendant, and the parties shall proceed in all subjects in the same manner as though the action had been originally instituted in such appellate [Id. § 7.]

court.

SEC. 97. h. [Joinder of causes of action.]—That assessments made for the same right of way for the same railroad company, upon different tracts of lands belonging to the same owner or owners in the same right, may be joined in one appeal and proceeded with in the appellate court as separate counts joined in one action for damage to such tracts of land, for or on account of such right of way. [Id. § 8.]

SEC. 97. i. [Pending costs.]-That this act shall not apply to any such assessments heretofore made. [Id. § 9.]

SEC. 98. [Commissioners shall assess damages to all real property.]-Freeholders so appointed shall be the commissioners to assess all damages to the owners of real estate in said county; and said corporation may, at any time after their appointment, upon the refusal of any owner or guardian of any owner of lands in said county to grant the right of way as aforesaid, by giving the said owner or guardian ten days notice thereof in writing, either by personal service or by leaving a copy thereof at his usual place of residence, have the damages assessed in the manner herein before prescribed.

SEC. 99. [Completion of panel-Fees.]-In case of the death, absence, or refusal or neglect of any of said freeholders to act as commissioners as aforesaid, the sheriff shall, upon the selection of said probate judge, summon other freeholders to complete

SEC. 98. Cited, 33 Neb., 171.

the panel, and said commissioners shall proceed as directed in the preceding section. Said commissioners shall receive two dollars per day, each, for their services, and the same

shall be taxed in the bill of costs.

SEC. 100. [Non-residents' lands.]—If, upon the location of said railroad, it shall be found to run through the lands of any non-resident owner, the said corporation may give four weeks notice to such proprietor, if known, and if not known, by a description of such real estate, by publication four consecutive weeks in some newspaper published in the county where such lands may lie, if there be any, and if not, in one nearest thereto on the line of their said road, that said railroad has been located through his or her lands; and if such owner shall not within thirty days thereafter apply to said probate judge to have the damages assessed in the mode prescribed in the preceding sections, said company may proceed, as herein set forth, to have the damages assessed, subject to the same right of appeal as in case of resident owners; and upon the payment of the damages assessed to the probate judge of the proper county for such owner, the corporation shall acquire all rights and privileges mentioned in this subdivision.

SEC. 101. [Crossings.]-Any railroad corporation may raise or lower any turnpike, plank road, or other way, for the purpose of having their railroad pass over or under the same; and in such cases said corporation shall put such turnpike, plank road, or other way, as soon as may be, in good repair.

SEC. 102. [Same.]-Every railroad corporation, while employed in raising or lowering any turnpike or other way, or in making any other alterations, by means of which the said way may be obstructed, shall provide and keep in good order suitable temporary ways to enable travelers to avoid or pass such obstructions.

SEC. 103. [Bridges.]--Every railroad corporation shall maintain and keep in good repair all bridges, with their abutments, which such corporation shall construct for the purpose of enabling their road to pass over.or under any turnpike, road canal, water course, or other way.

SEC. 104. [Bell and whistle.]—A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect.

SEC. 104. a. [Crossing other railroads.]-All railroad trains and locomotives without trains shall come to a full stop at least two hundred feet and not more than eight hundred feet from the crossing of the other railroads, and the engineer shall sound two long blasts of the whistle before starting forward, except where said railroads maintain a semaphore and gate with torpedo attachment, and when the signals indicate the crossing to be clear no stop need be made. [1889, § 1, chap. 41.]

SEC. 104. b. [Rights at crossings.]-When trains or locomotives without trains approach a crossing simultaneously, the one on the older road shall have the right to cross first, and the last train to cross shall not start until the first train has cleared the crossing and signal indicates that track is clear. [Id. § 2.]

SEC. 104. c. [Penalty.]-Every engineer violating the provisions of the preceding section shall for each offense forfeit one hundred dollars, to be recovered in the name of the state of Nebraska for the benefit of the school fund; and the person, persons, or corporations on which road such offense is committed shall forfeit for each

SEC. 100. Cited 18 Neb. 85. Appraisement made nine months after date fixed in notice confers no jurisdiction. 21 Neb. 383.

SEC. 104. Cited 22 Neb. 479. 25 Id. 816.

SEC. 104. &.-C. An act to require all trains run upon railroads in this state to come to a full stop before crossing any other road, and to provide penalties for its violation. Took effect July 1, 1889. Laws 1889, chap. 41.

offense so committed the sum of two hundred dollars to be recovered in like manner. [Id. § 3.]

SEC 104 d. [Name of stations.]-All railroad companies operating lines of railway in this state shall, on a petition signed by a majority of the legal votes of such city or village to the railroad company, call any station located in any city or village the same as the corporate name of said city or village, and the name thereof shall be prominently exposed to public view. [Laws 1891, chap. 18, § 1.]

Sec. 104 e. [Same-Penalty:]—Any railroad company failing to comply with the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not less than one hundred ($100) dollars nor more than five hundred ($500) dollars. [Id. § 2.]

SEC. 104 f. [Safety couplers to new or repaired cars.]-That it shall be unlawful for any corporation, company or person operating any line of railroad in this state; any car manufacturers or transportation company using or leasing cars to put in use in this state any new cars or any cars that have been sent into the shop or shops for general repairs, or whose draft rigging has to be repaired with a new draw-bar or bars, that are not equipped with safety or automatic couplers or draw bars such as shall not necessitate the going between the ends of the cars to couple or uncouple them. [Laws 1891, chap, 19, § 1.]

SEC. 104 g. [Couplers to all cars.]-That after January 1, 1895, it shall be unlawful for any corporation, company or persons operating a railroad or any transportation company using or leasing cars of any description and used in the commerce of the country; or in the construction of railroads to have upon any railroad in Nebraska for use in transportation of freight or passengers any car that is not equipped with such safety automatic coupler as provided for in section one (1) of this act. [Id. § 2.]

SEC. 104 h. [Drive brakes on engines.]-That it shall be unlawful for any corporation, company, or person operating any line of railroad in this state to use any locomotive engine upon any railroad or in any railroad yard in this state after the first (1st) day of January, 1892, that is not equipped with a proper and efficient power brake commonly called a "drive brake." [Id. § 3.]

SEC. 104. [Brakes.]-That it shall be unlawful for any corporation, company or person operating a line of railroad in this state, to run any train of cars after the first (1st) day of January, 1895, that shall not have in that train a sufficient number of cars with some kind of efficient automatic or power brakes so that the engineer upon the locomotive car can control the train without requiring brakemen to go between the ends or on the tops of the cars to use, as now, the common hand brakes. [Id. § 4.]

SEC. 104j. [Report of brakes and couplers.]—Every railroad corporation, company or person operating a railroad in this state, and every person using or leasing cars in the transportation business, or in building railroads, shall, and are by this act required to include in their annual report to the state railroad commissioners the number of locomotive engines and cars used in this state, and what number is equipped with automatic power brakes and what number of cars equipped with automatic safety couplers and the kind of brakes and couplers used and the number of each kind when more than one is used. [Id. § 5.]

SEC. 104 k. [Violation of act-Penalty.]-Any corporation, company or person operating a railroad in this state, and using a locomotive engine or running a train of cars, or using any freight way, or car contrary to the provisions of this act, shall be deemed guilty of a misdemeanor, and shall be subject to a fine of not less than five hundred ($500.00) dollars, or not more than one thousand ($1,000.00) dollars, for each and every offense for the benefit of the school fund, provided the penalties on this section shall not apply to companies in hauling cars belonging to railroads other than those of this state which are engaged in interstate traffic, and any railroad employee who

SECS. 104 d-104 e. "An act to compel railroads to name their stations, the same as the city or village in which located, and to fix a penalty for a failure so to do." [Laws 1891, chap. 18. Took effect Aug. 1, 1891.]

SECS. 104 -104 k. "An act requiring all railroads, corporations, companies, and persons operating a railroad and doing business in Nebraska to equip all engines and cars with proper, efficient and safe automatic couplers and brakes, and for prescribing penalties or failure thereof." [Laws 1891, chap. 19. Took effect Aug. 1, 1891.]