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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.

powers.

856. 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.

convey real

or company.

857. SEC. 23. If it shall become necessary, for any of the Guardians, purposes aforesaid, for such company to acquire any real estate, etc., may or any right, title, or interest therein, which is the property of estate to any infant, idiot, or insane person, the guardian, executor, 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, Stats. 1869, 90.

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

Special proceedings to acquire

real estate.

Rights of defendants.

Hearing of petition.

To notify

owners.

necessary for the purposes of said company, as herein before provided, by means of the special proceedings prescribed in this Act. The said special proceedings shall be substantially as follows: 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 ascertained by reasonable diligence.-As amended, Stats. 1869, 90.

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.

860. SEC. 26. The said court, or the Judge thereof, either 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.

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 said 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 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 said county, then in a newspaper published nearest to said county.

of notice.

Defendants

862. SEC. 28. The defendants to said petition may 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

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.

863. SEC. 29. The said 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 subpoenas 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.

tion.

864. SEC. 30. The said Commissioners shall proceed to compensa. view 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 Ishall not be required to construct fences on the line of their

Adverse claims.

railroad where the same passes through uninclosed tracts of lands, nor until inclosures shall be made abutting upon the property of said company; and such Commissioners shall, on or before the time or times as ordered by said court, or Judge, To file report. file in said Clerk's office their report, signed by them, setting forth their proceedings in the premises, and they may include all of said tracts in one report, or they may make several reports, including one or more of said tracts of land, if the court, or Judge, shall so order, or if they shall deem it proper. In case there are adverse or conflicting claims to the compensation assessed for any tract of land, or any right, title, or interest therein, thus sought to be appropriated, the parties thus asserting such claims shall present the same, by petition, to the court, or Judge, after the report of the Commissioners shall have been filed, and the said court, or Judge, shall proceed to hear and determine the same; and in such case, said company may pay the amount of such compensation to the Clerk of said court, to abide the order of the court, or Judge in said proceeding, and said company shall not be liable for any of the costs caused by the adjudication of such conflicting claims.

New trial.

Comfirmation of reports.

Record of reports.

Costs.

Virginia and Truckee R. R. Co. v. Lovejoy, 8 Nev. 100; Walsh v.
Virginia and Truckee R. R. Co. 8 Nev. 110; Virginia and Truckee
R. R. Co. v. Henry et al., 8 Nev. 165.

865. SEC. 31. The said company, or any of said defendants, if dissatisfied with the report, may, within twenty days after the time for the filing of said report, and after ten days notice to the parties interested, move to set aside the report, and to have a new trial as to any tract of land, upon good cause shown therefor; and the said court or Judge shall set aside the report as to such tract of land, and may recommit the matter to the same or to other Commissioners, who shall be ordered to proceed in like manner as those first appointed; but such matter shall not be more than twice recommitted to Commissioners.

866. SEC. 32. Upon the expiration of twenty days after the filing of said report or reports, or at such further time as may be appointed therefor, if the motion and notice shall not have been made and given, as aforesaid, and if the proceedings. of said Commissioners appear to have been correctly and properly done, the said court, or Judge, shall confirm each of said reports, and certify the same thereon.

867. SEC. 33. Each of said reports, and the certificates thereon, upon the compensation therein named being paid, shall be recorded in the Recorder's office of said county by said company. The said court, or Judge, may make all such orders as may be necessary or proper in the special proceedings provided for in this Act, and shall cause the pleadings and proceedings to be amended whenever justice shall require it to be done, and shall direct the manner of the service of all orders and notices not herein specially provided for. Costs in such special proceedings shall be taxed by the Clerk at the rates prescribed in the fee bill for said county in civil actions, and shall be paid by

said company, except in case where a defendant shall move for a new trial, and the compensation assessed by the Commissioners shall not be increased more than ten per cent. upon the previous assessment, in which case such defendant shall pay the cost.

titles.

868. SEC. 34. If the title attempted to be acquired by Detective virtue of the provisions of this Act, shall be found to be defective from any cause, such company may again institute proceedings to acquire the same, as in this Act prescribed; and at any stage of such new proceedings, or of any proceedings under this Act, the court, or Judge in chambers, may rule or order in their behalf made, authorize such company, if already in possession, to continue in the use and possession, and if not in possession, to take possession of, and use such premises during the pendency of, and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company shall pay a sufficient sum in court, or give security, to be approved by such court, or Judge, to pay the compensation in that behalf when ascertained.

869. SEC. 35. Upon the report of the Commissioners Passage of. being filed for record, as above provided for, and upon the payment or tender of the compensation and costs, as prescribed in this Act, the real estate, or the right, title, or interest therein, described in such report, shall become the property of said company for the purpose of its incorporation, and shall be deemed to be acquired for, and appropriated to, public use.

tender.

870. SEC. 36. Such company shall, within thirty days Payment of after the final confirmation of the report as aforesaid, pay or tender the sum of money ascertained and assessed by said Commissioners as and for the compensation of each tract of land described in said report, of which the compensation was ordered by said court or Judge, to be ascertained and assessed as aforesaid; and said payment or tender may be made to the person or persons owning said tract of land, or having or holding any right, title, or interest therein, according to the amount or extent of the right, title, or interest, owned or held therein by such person or persons, or said payment may be made to the said Clerk for said persons, and the same shall be deemed and payment to such person or persons, and shall be as effectual for all purposes whatsoever as if the said sum of money had been personally paid to each and all of the persons entitled

taken as a

thereto.

order

payment.

871. SEC. 37. The said court or Judge shall, at the time court to of the payment of the said sum of money to the said Clerk, or at such other time or times as may be ordered, direct and order the same to be paid over to the person or persons who shall, upon satisfactory proof, appear to be entitled thereto.

872. SEC. 38. In all the proceedings in relation to the Definition of appropriation of real estate, and ascertaining and "person. receiving the compensation therefor, for railroad purposes, as

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