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highways.

use lands, etc

may, from time to time, alter or change the line in any manner they may think proper, and cause a new map to be filed in the office where the map showing the first location is filed, and may thereupon take possession of the land embraced in such new location, that may be required for the construction and maintenance of such road on such new line, either by agreement with the owner or owners of such lands, or by such proceedings as are authorized under the provisions of this Act, and use and enjoy the same in place of the line for which the new is substituted ; but nothing in this Act shall be so construed as to confer any powers on such companies to so change their road as to avoid any point named in their articles of association, except as provided in section seventeen, subdivision seven, of this Act. 853. Sec. 19. Whenever the track of such railroad shall

Crossing cross a railroad or highway, such railroad or highway may be railroads or carried under, over, or on a level with the track, as may be most expedient, and in cases where an embankment or cutting shall make a change in the line of such railroad or highway desirable, with a view to a more easy ascent or descent, the said company may take such additional lands and materials, if May take and needed for the construction of such road or highway, on such new line, as may be deemed requisite by said Directors; unless the lands and materials so taken shall be purchased, or voluntarily given for the purpose aforesaid, compensation therefor shall be ascertained in the manner in this Act provided, as nearly as may be, and duly made by such corporation to the owners and persons interested in such lands; and the same, when so taken and compensation made, to become part of such intersecting road or highway, in such manner and by such terms as the adjacent parts of such highways may be held for highway purposes.

834. Sec. 20. The right of way is hereby given and Right of way granted to all railroad conipanies that are now organized, granted. may be organized under the provisions of this Act, to locate, construct, and maintain their roads, or any part or parcel thereof, over and through any of the swamp or overflowed lands belonging to this state, or any other public lands which are now or may be the property of this state, at the time of constructing said railroad ; and the said railroad companies are hereby Width of authorized to survey and mark through the said lands of the right of way. state, to be held by them for the track of their respective railroads, one hundred feet in width, for the whole length the said roads may be located over the lands of the state ; and in cases where deep excavations, or heavy embankments, or other cuttings or structures whatever, or ditches, drains, canals, culverts, or other structures to protect the road bed, and to facilitate the use and enjoyment of the same, is or may be required for the grade or other uses of said roads, then at such places a greater width may be taken by such company, and which is hereby given, not exceeding two hundred feet wide ; and the right is hereby further given and granted to said companies, to locate, occupy, and hold all necessary sites and grounds for watering

or

Provisos.

Depois, etc. places, depots, or other buildings, for the convenient use of

the same, along the line of said road or roads, so far as the places convenient for the same may fall upon the lands belonging to the state, except within the limits of any incorporated city or town, or within three miles where the same shall be taken, on paying to the state the value of the same; and, provided, that no one depot, watering place, machine or workshop, or other buildings for the convenient use of such roads, shall cover over two square acres each, and that suid sites or places on the lands of this state shall not be nearer to each other than five miles along the lines of said roads. The right is hereby further given und granted to said companies, to tale from any of the lands belonging to this state all such materials of earth, wood, stone, or other materials whatever, as may be necessary or convenient, from time to time, for the first construction or equipment of said road or roads, or any part thereof; provided, that the grants herein made, as well of the use of the land of this state as for the materials for the construction and equipment of said road or roads, shall cease and determine as respects such particular road, which shall not have been begun and completed within the times limited in section thirty-nine of this Act; and, provided further, that if any road, at any time after its location, shall be discontinued or abandoned by said company or companies, or the location of any part thereof be so changed as not to cover the lands of the state thus previously occupied, then the lands so abandoned or left shall revert to this state ; and, provided further, that when the location of the route of either of said railroads, or sites or places for depots, watering places, machine or work shops, or other buildings for the convenient use of the same, shall be selected, the Secretary of the said company shall transmit to the Surveyor-General, and to the Controller of the state, and to the Recorder of the county in which the lands so selected are situated, to each of said officers, a correct plot of

the location of said railroad, or sites or places, before such Conveyance selection shall become operative. And when any such company of landes, etcar shall, for its purposes aforesaid, require any of the land belong

ing to any of the counties, cities, or towns in this state, the county, city, and town officers respectively, having charge of such lands, may grant and convey such land to such company, for a compensation which shall be agreed upon between then, or may

donate and convey the same without any compensation ; and if they shall not agree upon the sale and price, the same may be taken by the company as is provided in other cases of taking lands by the provisions of this Act.

835. Sec. 21. Any county, city, or town in this state, make grants. shall have, and are hereby fully empowered, by and through a

two-thirds vote of the Board of Commissioners, the Common Council, or any other officers having a supervisory or other control of such county, city, or town, respectively, to give, grant or donate, to any railroad company now organized, or that may be hereafter organized under the laws of this state, the use of any of the streets or highways which may be absolutely

Cities may

puwers.

necessary in order to enable any such company to reach an accessible point for a depot in any such county, city, and county, city, or town, or to pass through the same on as direct a route as possible, and accommodate the traveling and commercial interests thereof; provided, however, the provisions of this Proviso. section shall not apply to any street railroad now constructed, or hereafter to be constructed, in any of the incorporated cities of this state ; nor shall any railroad company, who may avail themselves of the provisions of this section, ever use their road for street railroad purposes, or for the purpose of carrying passengers for a consideration from one point to another in the same city ; nor shall any city or town donate any public square, or any land set apart, to the use of any one company:

836. Sec. 22. Any railroad company, organized under Surveys. the provisions of this Act, or any railroad company organized under any law of this state, which shall accept the provisions of this Act, as herein provided, is authorized to enter upon any land for the purpose of surveying the line of its proposed railroad, the company being responsible for any damage occasioned by such ; and such company is also authorized to acquire, pur- General chase, and hold any real estate, or any right, title, or interest rights and therein, which may be necessary or proper for the purpose of the construction or maintenance of the track or tracks, water stations, depots, machine or workshops, turntables, or any other building or structure necessary for such railroad; but such company shall not hold such real estate, or any right, title, or interest therein, required or used solely or mainly for the construction or maintenance of the track or tracks of said railroad, beyond the time of the legal existence of said company, nor after the location of said track or tracks has been changed therefrom, nor after said company shall have failed, or ceased, to the use of the same for the maintenance of such track for the space of five years continuously ; but in each of such cases, the said real estate, and all the right, title, and interest therein, shall revert to the person or persons, and his or their assigns, from whom the same was acquired by said company.

857. Sec. 23. If it shall become necessary, for any of the purposes aforesaid, for such company to acquire any real estate, etc., may or any right, title, or interest therein, which is the property of estute to any infunt, idiot, or insane person, the guardian, executor, or administrator (as the case may be), may sell and convey the same to said company, but neither such sale or conveyance shall be valid for any purpose, until the same shall have been approved by the Judge of the proper court; and said Judge is hereby authorized to examine such deeds and conveyances, and if he shall deem the same just and proper, he shall approve the same, and thereupon such conveyances shall have the same force and effect, for the purposes in this section mentioned, as if the same had been executed by persons competent to convey lands in their own names.-As amended, Slats. 1869, 90.

838. Sec. 24. Such company may acquire any real estate, or any right, title, interest, estate, or claim, therein or thereto,

Guardians,

company

defendants.

Special necessary for the purposes of said company, as hereinbefore proceelings to acquire

provided, by means of the special proceedings prescribed in this real estate. Act. The said special proceedings shall be substantially as fol

lows: The said company shall file in the Clerk's office of the district court, in the county in which said real estate is situated, a petition verified according to law, stating therein the name of the company, the time when it was incorporated, that it still continues in legal existence, the principal termini of the proposed road, the description by metes and bounds, or by some accurate designation of the tract or tracts of lands which said company desire to appropriate for the purposes in the foregoing section mentioned ; that said tract or tracts of land are necessary for said purposes; that the line of said railroad has been surveyed, and a map thereof made (a copy of which shall be filed with the said petition); that said line has been adopted as the route of said railroad, and the names of the persons in

possession of said tract or tracts of land, and of those claiming any right, title, or interest therein, as far as the same can be ascer

tained by reasonable diligence. As amended, Stats. 1869, 90. Rights of 859. Sec. 25. The persons in occupation of said tract or

tracts of land, and those having any right, title, or interest therein, whether named in the petition or not, shall be defendants thereto, and may appear and show cause against the same, and may appear and be heard before the Commissioners herein provided for, and in proceedings subsequent thereto, in the

same manner as if they had appeared and answered said petition. Hearing of 860. Sec. 26. The said court, or the Judge thereof, either petition.

in term or vacation, shall, by order, appoint the time for the hearing said petition, and such hearing may be had, and all orders in said proceedings may be made by the said court, or

the Judge thereof, either in term time or vacation. To notify

861. Sec. 27. The said company shall cause all the occupants and owners of said tract or tracts of land, so far as the same can be ascertained by reasonable diligence, who reside in suid county, to be personally notified of the pendency of the said petition at least ten days before the hearing thereof, and if any of said occupants or owners are unknown, or do not reside in said county, and have not been personally notified of the pendency of the said petition, said company shall cause a notice

stating the filing of said petition, the object thereof, the tracts Publication of land sought to be appropriated, and the time and the place of notice.

of the hearing of said petition, to be published for four successive weeks previous to the time of hearing said petition, in a newspaper published in said county, or, if none is published in suid county, then in a newspaper published nearest to said county.

862. Sec. 28. The defendants to said petition muy appear may appear. and show cause against said petition, on or before the time for

the hearing thereof, or such other time as the hearing may be continued to, and upon satisfactory proof being made that the defendants have been duly notified of the pendency of said peti

Owners.

Defendants

ers.

tion, as herein prescribed, and upon the hearing of the allegations and proofs of the said parties, if the said court, or Judge, shall be satisfied that the said lands, or any part thereof, are necessary or proper for any of the purposes mentioned in said petition, then such court, or Judge, shall appoint three competent and disinterested persons as Commissioners, one of whom To appoint shall be selected from among the persons, if any, named for Commission. that purpose by said company, and one shall be selected from among the persons, if any, named on the part of any of the defendants, to ascertain and assess the compensation to be paid to any person or persons having or holding any right, title, or interest in or to each of said tracts of land, for and in consideration of the appropriation of such land to the use of said company. If any vacancy occur among said Commissioners, by Vacancy. reason of any one or more of them refusing or neglecting to act, or by any other means, one or more Commissioners may be appointed by said court, or Judge, to fill such vacancy, upon notice being given of such vacancy, as said court, or Judge, may direct.

963. Sec. 29. The suid court, or Judge shall appoint the Meeting of time and place for the first meeting of said Commissioners, Commissionand the time for filing of their report, and may give such further time as may be necessary for that purpose, if they shall not then have completed their duties. The said Commissioners, or a majority of them, shall meet at the time and place as ordered, and, before entering on their duties, shall be duly sworn to honestly, faithfully, and impartially perform the duties imposed upon them; and any one of them may issue subpænas for witnesses for either of said parties, and may administer oaths; and said Commissioners may adjourn from place to place, and from time to time, as may be necessary for the proper discharge of their duties.

864. Sec. 30. The said Commissioners shall proceed to compensaview the several tracts of land as ordered by said court, or Judge, and shall hear the allegations and proofs of said parties, and shall ascertain and assess the compensation for the land sought to be appropriated, to be paid by said company to the person or persons having or holding any right, title, or interest in or to each of the several tracts of land ; and in ascertaining and assessing such compensation, they shall take in consideration and make allowance for any benefit or advantages that in their opinion will accrue to such person or persons by reason of the construction of the railroad as proposed by said company; and if the said railroad company shall, in their petition filed in said special proceedings, offer or agree to make good and sufficient fences on the line of their said railroad, or any portion thereof, or to make good and sufficient cattle guards where fences may cross said line of railroad, at such places and such times as the same may be necessary, no sum or price for such fences shall be included in the compensation or damages to be awarded by said Commissioners; but such railroad company shall not be required to construct fences on the line of their

tion.

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