Gerrard, 17, 592 (24 N. W., 279). Railroad company cannot, on appeal, disprove the title of the person to whom damages were awarded without pleading his want of title. Gerrard v. O., N. & B. H. R. R. Co., 14, 270 (15 N. W., 231). R. V. R. R. Co. v. Hayes, 13, 489 (14 N. W., 521). Dietrichs v. L. & N. W. R. R. Co., 14, 355 15 N. W., 728). The word "owner," as used in the statute, applies to all persons who have an interest in the estate. Gerrard v. O., N. & B. H. R. R. Co., 14 271 (15 N. W., 231). No appeal being taken, mandamus lies to compel company to deposit amount of award with county judge. State, ex rel. Farmer, v. G. I. & W. C. R. Co., 27, 693 (43 N. W., 419). St., ex rel. Farmer, v. G. I. & W. C. R. Co., 31, 215 (47 N. W., 857). Where, on appeal, the only question is the amount of damage, no pleadings are necessary, but if other issues are involved they must be pleaded to be available. R. V. R. R. Co. v. Hayes, 13, 491 (14 N. W., 521). Transcript must be filed within sixty days or good reason shown. Gifford v. R. V. & K. R. R. Co. 20, 541 (31 N. W., 11). Party cannot be prevented from taking appeal by neglect of officers to prepare a transcript. R. V. R. R. Co. v. McPherson, 12, 480 (11 N. W., 739). Company cannot abandon the taking of the land after trial of appeal and judgment in district court. Drath v. B. & M. R. R. Co., 15, 371 (18 N. W., 717). Railroad company which has appealed, but afterwards is satisfied with award, should move to affirm it (which will carry costs and interest), not to dismiss appeal. Robbins . O. & N. P. R. R. Co., 27, 75 (42 N. W., 905). If company appeal, and then dismiss its appeal, the award should be affirmed, which carries with it interest and costs. Perggren v. F., E. & M. V. K. R. Co., 23, 621 (37 N. W., 470). Cannot be dismissed because railroad company does not answer. O., N. & B. H. R. R. Co. v. Umstead, 17, 460 (23 N. W., 350). Where, on appeal, verdict is less than award, costs should be divided equally. B. & M. R. R. Co. v. Spere, 24, 125 (38 N. W., 35). When, on appeal, the owner recovers more damages than was allowed by commissioners, he may have interest thereon from the time he was entitled to compensation. Sioux City R. R. v. Brown, 13, 320 (14 N. W., 407). District court should render judgment on verdict of jury in case of appeal. Dietrichs v. L. & N. R. R. Co., 12, 231 (10 N. W., 718). See A. & N. R. R. Co. v. Plant, 24, 130 (38 N. W., 33); Neb. Ry. Co. v. Van Dusen, 6, 160; Cady v. Smith, 12, 629 (12 N. W., 95). The judgment of the district court on appeal from an award is conclusive as to all matters necessarily within the issues joined. A. & N. R. R. Co. v. Forney, 35, 607 (53 N. W., 585). Condemnation proceedings may be had upon the ex parte application of either the railroad or the land-owner State, ex rel. Farmer, v. G. I. & W. C. R. R. Co., 31, 215 (47 N. W., 857). The application for appraisers must be in writing; and should state the name of the corporation, the land-owner, if known, a description of the real estate over which the road is located, the width required for right of way, and that the owner refuses to grant the same, and must be signed by some person empowered to do so by the corporation; it need not be dated, or verified, or set up incorporation of the company. Trester v. Mo. Pac. R. Co., 33, 184 (49 N. W., 1110). When a part of the land is taken, this remedy is exclusive. A petition setting forth the desire to take the strip through land named, referr ng to a plat attached for description, is sufficient. F., E. & M. V. R. Co. v. Mattheis, 35, 48 (52 N. W., 698).

Secs. 513 to 521. "An act to provide for the taking and prosecution of appeals," etc. 1887, p. 333. In force March 31.

513. 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 [512], at the time and in the manner hereinafter specified and set forth.

514. 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.

515. 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 approval 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.

516. 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.

517. 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..

518. 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 preceding term of said appellate court.

519. 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 court.

No new pleadings are necessary. F., E. M. V. R. Co. v. Meeker, 28, 97 (44 N. W., 79). Judgment should be entered on the verdict and execution awarded without regard to the money deposited. Drath v. B. & M. R. R. Co., 15, 367 (18 N. W., 717).

520. 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.

521. That this act shall not apply to any such assessments heretofore made.

Secs. 522 to 526 formed secs. 98, 99, 96, 100, 105 respectively, R. S. 1866, pp. 223 to 226. 522. 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.

The giving of notice is an essential prerequisite to be complied with before the property of an individual can be appropriated by the corporation. Trester v. Mo. Pac. R. Co., 33, 185 (49 N. W., 1110).

523. 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 the panel, and said commissioners shall proceed as directed in the preceding section. Said commissioners shall receiye two dollars per day, each, for their services, and the same shall be taxed in the bill of costs.

See R. V. R. Co. v. Fink, 18, 88 (24 N. W., 439).

524. 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.

525. 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.

Appraisement nine months after the time set confers no jurisdiction. Publication of notice must be four consecutive weeks. Hull v. C., B. & Q. R. R. Co., 21, 383 (32 N. W., 162). See R. V. R. R. Co. v. Fink, 18, 88 (24 N. W., 439). By taking an appeal from the damages allowed by the appraisers, the land-owner enters an appearance and waives objections as to notice and other irregularities. If other issues than the question of damages are involved they must be presented by proper pleadings. Trester v. Mo. Pacific R. Co., 33, 186 (49 N. W., 1110). "Non-resident" here means a non-resident of the state, and not of the land affected. Pacific R. R. Co. v. Perkins, 36, (54 N. W., 845).

526. Any railroad corporation shall be authorized to pass over, occupy, and enjoy any of the school, university, saline, or other lands of this state; Provided, That no more than one hundred feet in width from the center of the road way survey of such corporation, on either side, shall be taken for roadway, and not to exceed twenty acres, to conform to the subdivisions of the government survey, in any one tract for each section of twelve consecutive miles of such railroad, shall be taken for station, depot grounds, machine shops, turnouts, side-tracks, warehouses, and other appurtenances to a railroad; and that any railroad corporation that has surveyed or shall hereafter survey or locate a line of its road, immediately upon platting such survey of its line, and of the selection for depot grounds under this act, and filing such plat duly certified by the chief engineer or president of such corporation, of the fact of such survey and selection for depot grounds, duly acknowledged, with the secretary of state, and with the county clerk of the county in which said land is situated, to operate as a vested right in such corporation for two years from the date of filing the same, shall be authorized to enter upon said lands so surveyed and selected, and construct thereon all necessary railroad depot buildings, machine shops, turnouts, side-tracks, turntables, roundhouses, and other appurtenances deemed necessary for railroad purposes by such corporation, and so soon as such railroad shall be constructed over such lands so selected, and a station erected thereon, on proof of such fact to the satisfaction of the governor, and upon paying the full value for said lands for depot station and workshop grounds, and all grounds herein contemplated, except the one hundred feet of trackway, the governor shall convey in fee simple by letters patent under the great seal of the state, attested by the secretary of state, to the corporation constructing such railroad, the lands and right of way included in the plat and certificate so filed with the secretary of state as aforesaid, and no subsequent grant from the state to any other person or corporation of any tract of land including such right of way and selection for depot grounds so platted, and the plat thereof filed as aforesaid, though not excepted in such grant, shall divest said railroad corporations of their rights in the same under this act; Provided further, That the damages accruing to any occupant or owner, or other person who may reside or have improvements on said land previous to the filing of such plat, shall be determined and paid by said railroad company as heretofore provided in this subdivision.

Rewritten 1869, p. 84.

Secs. 527 to 529. "An act to provide for the valuation and sale of state lands on which any railway company may have located its road, stations, or works." 1887, p. 534. In force July 1. 527. Any railway company incorporated under the laws of this state, which shall have constructed its railway, or located, or hereafter may construct or locate its grounds for stations, machine shops, depot grounds, turnouts, side tracks, warehouses, and other appurtenances to a railroad, incident to its organization, across or on any state lands, as provided by section 105, of chapter 16 of the Compiled

Statutes of Nebraska of 1885 [526], may apply in writing to the board of public lands and buildings, for valuation and conveyance thereof, filing with such application a plat and description of such lands.

Right to condemn real estate for right of way is restricted to corporations organized under the laws of this state. State v. Scott, 22, 642 (36 N. W., 121).

528. [Appraisement.]-On such application being made, the commissioner of public lands and buildings shall cause a copy of such application and plat to be forwarded to the chairman of the board of county commissioners, or supervisors of the county where such lands lie, and it shall be the duty of such county commissioners, or a majority of them, or if the county is under township organization, three of the supervisors to be designated by the said board of supervisors or a majority of such designated supervisors, to view the lands so desired to be purchased by such company, and return a true and correct value of such land, under oath, the material facts in which return shall be communicated to such board of county commissioners or supervisors, and entered of record in their proceedings.

529. After the foregoing proceedings have been had, the applicant to purchase shall, within ninety (90) days after such appraisement, pay to the state treasurer the appraised value of such land, and shall then be entitled to receive the deed for the same upon forwarding the proper evidence of such appraisal and receipt of the state treasurer to the commissioner of public lands and buildings; Provided further, That the damage accruing to any occupant or owner, or other person, who may reside or have improvements on said land previous to the filing of such plat, or the appraisement of such damages, shall be paid by said railroad company, such damages to be determined either by mutual agreement between the party so owning or occupying said lands, and such railway company, or by appraisement as in other

cases.

Secs. 530 to 535. "An act to provide the manner in which the title may be acquired by railroad companies incorporated under the laws of this state for right of way and other necessary purposes across the educational and other lands of this state." 1887, p. 525. In force

March 31.

530. That all railroad companies organized under the laws of this state which may have heretofore taken or may hereafter take any of the educational, saline, university, agricultural college, or other lands belonging to the state for right of way, stations, turnout, side tracks, or other necessary appurtenances to a railroad shall be entitled to a deed in fee simple for the land so taken, upon paying into the county treasury of the county where the land is situated the full value of the lands so taken, together with the amount for damages that the state shall sustain, together with the damages to lessee.

531. For the purpose of ascertaining the value of the lands so taken, or to be taken, the county commissioners of the county, or in case the county is acting under township organization, then three supervisors, to be appointed by their chairman, shall constitute a board of appraisers, and shall each be entitled to receive the sum of three (3) dollars per day for each day actually employed and ten cents per mile for each mile necessarily traveled, to be paid by the railroad company.

532. On application in writing to said board of appraisers by any railroad company desiring the appraisal of any of the lands mentioned in section one, it shall be the duty of said board to carefully inspect and view said land and appraise the value per acre of the lands at the time the same were taken, together with any damages the state may sustain by reason thereof.

533. The board shall make a report in writing to the county treasurer, of the value of the lands so taken, together with the amount of damages, if any, the state may sustain, and on payment of said amounts by the railway company into the county treasury, the county treasurer shall give the same receipt as he is required to give when payment is made of part principal on a contract of purchase,

and the county clerk shall transmit a duplicate to the commissioner of public lands and buildings, to be by him entered of record as in other cases of payment on educational lands.

534. The railway company shall file a plat of the land so taken with the commissioner of public lands and buildings, who shall prepare a deed to be executed by the governor, conveying said lands to said company, and the amount of lands so taken shall be marked sold, by the said commissioner, from the section or part of section from which it has been sold.

535. Where any of the lands desired to be so taken are held under contract of sale or lease, the amount of lands so taken shall be deducted from the total amount mentioned in said contract, and the amount of cash so paid in on contracts of purchase shall be credited on the contract, first to the payment of the number of acres according to the contract price, and the residue as a payment on the balance of the land; Provided, however, That all damages that may be assessed by reason of injury done to any improvements on said land, or possession thereof, shall be paid to the person holding the contract of purchase or lease; Provided further, That not more than one hundred (100) feet will be taken for right of way, and not more than twenty (20) acres for all other purposes, on any one tract of six hundred and forty (640) acres; Provided further, That the lands so taken shall not be sold for less than seven (7) dollars per acre, nor less than the price per acre specified in the contract of purchase.

III. CONSOLIDATION-LEASING-PURCHASE, ETC.

Secs. 536 to 541 formed secs. 89 to 94, ch. 25, R. S. 1866, p. 220.

536. Whenever the lines of railroad of any railroad companies in this state, or any portion of such lines, have been or may be constructed, so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break of gauge or interruption, such companies are hereby authorized to consolidate themselves into a single corporation, in the manner following: The directors of the said two or more corporations may enter into an agreement, under the corporate seal of each, for the consolidation of the said two or more corporations, prescribing the terms and conditions thereof; the mode of carrying the same into effect; the name of the new corporation; the number of directors thereof, which shall not be less than seven; the time and place of holding the first election of directors; the number of shares of capital stock in the new corporation; the amount of each share; the manner of converting the shares of capital stock in each of said two or more corporations into shares in such new corporation; the manner of compensating stockholders in each of said two or more corporations who refuse to convert their stock into the stock of such new corporation, with such other details as they shall deem necessary to perfect such consolidation of said corporations; and such new corporations shall possess all the powers, rights, and franchises conferred upon such said two or more corporations, and shall be subject to all the restrictions, and perform all the duties imposed by the provisions of this subdivision; Provided, That all stockholders in either of such corporations who shall refuse to convert their stock into the stock of such new corporation shall be paid the market value of said stock at the date of such consolidation.

Consolidation authorized only when, by it, two roads will form a continuous line. State v. A. & N. R. R. Co., 24, 158-9 (38 N. W., 43).

537. Such agreement of the directors shall not be deemed to be the agreement of the said two or more corporations until after it has been submitted to the stockholders of each of the said corporations separately, at a meeting thereof, to be called upon a notice of at least ninety days, specifying the time and place of such meeting, and the object thereof, to be addressed to each of such stockholders, when the place of residence is known, and deposit in the postoffice, and published at least