CHAPTER 72.-RAILROADS.

ARTICLE I.-DUTIES AND LIABILITIES.

4012 SECTION 1. [Fencing.] That every railroad corporation whose lines of road or any part thereof is open for use shall, within six months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not now open for use, shall, within six months after the lines of such railroad or any part thereof are open, erect and thereafter maintain fences on the sides of their said railroad, or the part thereof so open for use, suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, with opens, or gates, or bars at all the farm crossings of such railroads, for the use of the proprietors of the lands adjoining such railroad, and shall also construct, where the same has not already been done, and hereafter maintain at all road-crossings, now existing or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting on to such railroad, and so long as such fences and cattle guards shall be made after the time herein before prescribed for making the same shall have elapsed, and when such fences and guards, or any part thereof, is not in sufficiently good repair to accomplish the objects for which the same is herein prescribed, is intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engines, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporations permitted and running over or upon their said railroad, to any cattle, horses, sheep, or hogs thereon; and when such fences and guards have been fully and duly made, and shall be kept in good and sufficient repair, such railroad corporation shall not be liable for any such damages, unless negligently or wilfully done; Provided, however, That any person, company, or corporation owning land adjoining the right of way of any railroad company in this state, and not within the limits of any town, village, or city, and intending to enclose his or their land, or any part thereof, that adjoins such right of way or railroad, with a fence, such person or the secretary of such company or corporation, by direction therof, may notify in writing such railroad company of such intention, and request such railroad company to build a lawful fence as described in this section on the line between their railroad and the land intended to be enclosed. Such notice shall definitely specify two points on such line between which points such fence is requested to be erected, and describe the field intended to be enclosed. The railroad company shall, within six months after receiving such notice, cause to be erected the fence required by such notice, and in case of a failure so to do, the party so giving notice as aforesaid may cause such fence to be erected at a reasonable cost, and collect the amount thereof from the railroad company so neglecting to erect the fence. [Amended 1883, chap. LXIII.]

CHAP. 72, ART. I. "An act to define the duties and liabilities of railroad companies." Laws, 1867, 88. G. S., 201. Took effect June 22, 1867.

SEC. 1. Act of 1883 has no repealing cause. Former law 26 N, 158. Cattle guards not required at private crossings. Id., 686. 43 Id., 751. One side of track in city. 27 Neb., 801. obey is negligence. 38 Id., 90 See, also, 26 Id., 188.

did not contain the proviso. Sufficiency of fence. 30 Neb, 318 Depot grounds outside of city limits. Statute in nature of police regulation. Failure to

4013 SEC. 2. [Liable for stock killed and injured.] Any railroad company hereafter running or operating its road in this state, and failing to fence on both sides thereof, against all live stock running at large at all points, shall be ab-olutely liable to the owner of any live stock injured, killed, or destroyed by their agents, employes, or engines, or by the agents, employes, or engines belonging to any other railroad company, running over and upon such road, or there being; Provided, That in case the railroad company liable under the provisions of this section, shall neglect or refuse to pay the value of any property so injured or destroyed, after thirty days notice in writing given, accompanied by an affidavit of the injury or destruction of said property, to any officer of the company, or any station agent, or ticket agent, or conductor employed in the management of its business, in the county where the injury complained of shall have been committed, such railroad company, their agents, and employes shall, in an action brought to recover damages therefor, be held and they are hereby declared to be liable to pay double the value of the property so injured, killed, or destroyed as aforesaid. [Id., § 2.]

4014 SEC. 3. [Damages to passengers.] Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury done arises from the criminal negligence of the person injured, or when the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or her notice.

4015 SEC. 4. [Service of summons.] Service upon railroad companies may be made as upon other corporations, or by leaving a copy of the summons by the proper officer, with any station agent, ticket agent, conductor, or other officer of said railroad formed within the limits of this state, or left at their usual place of business within said county.

4016 SEC. 5. [Liability as common carriers.] No notice, either express or implied, shall be held to limit the liabilities of any railroad company as common carriers, unless they shall make it appear that such limitation was actually brought to the knowledge of the opposite party and assented to by him or them, in express terms, before such limitation shall take effect.

ARTICLE II.-FOREIGN COMPANIES.

4017 SECTION 1. [May extend into Nebraska.] That any railroad company heretofore organized under the laws of the states of Kansas, Missouri, Iowa, Minnesota, or territory of Dakota, or any company so organized under the laws of another state whose road may extend across any one or part of any one of these states or said territory, is hereby authorized to extend and build its road into the state of Nebraska. And such railroad company shall have and possess all the powers, franSEC. 2. So much of this section as gives "double damazes for prope ty destroyed, held, une nstitutional Neb., 37. Damages to animals on account of failure to fence along line of road. 11 Neb., 596. Fence broke de wat owner of stock not guilty of contributory negligence 13 Neb., 481. If there be no fence up, plantin only required to prove fact of killing, ownership, etc., and that road was not fenced. 14 Neb., 17. Same liability exists where stock is running at large in night-time. Id., 74. Company liable when animals are killed through negil gence of employes running train. Id. Negligence of owner no defense. 15 Id., 366. Railroad not required to place guards or fence around cut within limits of city, away from public thoroughfare 14 Id., 234. See, also, 14 Id., 70. 295. 17 Id., 647, 693. 18 Id., 219, 638. 24 Id., 90. 26 Id., 192. 28 Id., 112. Actual collision of cars with animals unnecessary. 51 Id., 479. SEC. 3. Not relieved from liability by transfer of corporate power, or permitting others to operate road. 26 Neb., 159. Contract for continuous passage, accident on connecting line. Id. Proof required to presume negli gence. 37 Id., 235. Constitutionality discussed. Proof necessary to sustain action. Presumption of negligence, how rebutted. 88 Id., 226. Quære, Who is a passenger? 39 Id., 798. Road is insurer of passenger's safety. 39 Id., 48 Id., 638. Husband may recover for wife's injury. 41 Id., 578. Sufficient to prove injuries resulted from operation and management of road. 44 Id., 448. Criminal negligence defined, 48 Id., 97, 161. Does not apply to street railways. 51 Id., 672. Suit ex contractu or ex delicto. Ejecting passenger from car that does not stop at desired station. 51 Id., 167. Constitutional, not limited to survivor of injury. 58 Id., 678. Derailment 'presumption of negligence. Section within police power of state. Not amended by chap. 21. Not inimical to sec. 8, art. 1, Const., nor to 14th amendment to U. S. Const. C., R. I. & P. Ry. Co. v. Zernecke, Mch. 7, 1900. Constitutional. C., B. & Q. v. Wolf, Mch. 20, 1901.

803

SEC. 4. Cited 29 Neb., 492.

SEC. 5. See Const.. sec. 4, art. XI. 5 Neb., 117. 59 Id., 417. Liability not limited by special contract. 30 Id., 241. 88 Id., 463. Caretakers with stock. C., B. & Q. R. Co. v. Williams, April 10, 1901.

ART. II, SEC. 1. "An act to amend an act entitled an act to authorize non-resident railroad companies to build roads in Nebraska." Laws, 1879, 106. Took effect June 1, 1879.

871

chises, and privileges, and be subject to the same liabilities of railroad companies organized and incorporated under the laws of this state; Provided, Such non-resident company shall first file a true copy of its articles of incorporation with the secretary of this state, and shall comply with the laws of the state of Nebraska, as to filing and recording articles of incorporation, and in all things required by law relating to railroads, and otherwise in this state, and such non-resident railroad company shall keep an office in this state in some county in which its road is, or is proposed to be and shall be liable to civil process, to be sued and to sue, as provided by law. [1879, § 1, 106.]

4018 SEC. 2. [May mortgage, lease, or sell property in Nebraska.] That it shall be competent and lawful for any railroad company heretofore incorporated or organized, or which may be hereafter incorporated or organized under the laws of an adjoining state, and which shall have extended its railroad into this state or have become a corporation of this state under the laws thereof, to mortgage, lease, or sell that part of its railroad, and the property, rights, privileges, and franchises connected therewith, situated in this state, to any railroad in this state, and the railroad company making such purchase shall thereupon become vested with all the property, rights, privileges, and franchises of the company making such sale, and pertaining to the said railroad so sold, and shall be authorized to locate, construct, and complete, maintain and operate the railroad thus purchased, and may receive, hold, and convey all municipal aid, endowments, and property of any kind whatsoever, upon complying with the terms and conditions upon which the same were to be had, as fully and to the same extent as the railroad company making such sale, could have done had no such sale been made. [1871, § 1, 72.]

4019 SEC. 3. [Rights of purchasers.] Any railroad company heretofore incorporated or organized, or which may be hereafter incorporated or organized under the laws of an adjoining state, and which shall have extended its railroad into this state, or under the laws of this state, shall have become incorporated and authorized to construct and maintain a railroad within this state, may mortgage or lease, sell, or convey the whole or any part of its railroad, situate within the state, and the rights, privileges, and franchises connected therewith, and other property pertaining thereto, to any person or persons on such terms and conditions as may be agreed upon, and the person or persons making such purchase, and their associates, may become a body corporate under the laws of this state, in the manner prescribed for the creation and organization of railroad companies in this state; and on the organization of such corporatioh, it may take, receive, and hold the railroad and property so purchased by said corporators, and shall have, possess, and enjoy the same, and all the rights, privileges, franchises connected therewith, and held and possessed by the company making such sale, and shall also have all the rights, privileges, and franchises of railroad companies organized under the laws of this state, with full power and authority to construct, complete, maintain, and operate the railroad thus purchased, receive, hold, and dispose of all endowments, grants of land, municipal or individual aid granted to said company making such sale, or to which said company was or might have become entitled, upon compliance with the terms and conditions upon which such endowments, grants, donations, or aid were to be had; and the railroad company so organized may, under the laws of this state, consolidate its stock and property with any other railroad company upon such terms and conditions as may be agreed upon; Provided, however, That no sale, or purchase, shall be made of railroads situated within this state, of companies without this state, or consolidations effected as provided in this act, until the terms of such

SECS. 2-5. "An act to authorize_railroad companies of adjoining states to mortgage or convey their property dtuated in the state of Nebraska." Laws, 1871, 72. G. S., 204. Took effect Feb. 10, 1871. Cited 24 Neb., 160.

sale or consolidation shall have been approved by a majority of the stockholders in interest, in person, or by proxy, at the annual or special meeting, of which due notice shall be given by publication, or in writing to all the stockholders in interest, or the same be approved by the written consent of a majority of the stockholders in interest, filed in the office of said respective companies. [Id., § 2.]

4020 SEC. 4. [Contracts binding on assignees, etc.] That all contracts and agreements made by any railroad company prior to such transfer, lease, consolidation, or mortgage shall be binding on the assignees, lessees, or mortgages of such company, and that the rights of any stockholders, or parties entitled to stock therein, shall in no way be impaired by such transfer, lease, consolidation, or mortgage. [Id., § 3.]

4021 SEC. 5. [Purchasers to keep road in good running order.] When any company or persons shall have purchased any railroad, or two or more railroads are consolidated, as contemplated by the provisions of this act, such companies or persons so purchasing shall keep each and every railroad line that may come in their posession by such purchases in good running order, with sufficient rolling stock, to transport the freight and passengers. They shall not discriminate against the business with either or any of said railroad lines, either directly or indirectly, by the detention of freights or passengers, or charging more for freight or passage than is charged in proportion upon any other railroad line under the control of said company or persons. [Id., § 4.]

4022 SEC. 6. [Legalizing provision.] That any railroad company which has been organized under the laws of the states of Iowa, Kansas, or Missouri, and which has heretofore extended its line of railroad into this state, or built any portion of its line of road in this state, and has filed a true copy of its original articles of incorporation in the office of the secretary of state of this state, is, from the time of filing said copy of its original articles of incorporation as aforesaid, hereby declared to be a legal corporation of this state, and entitled to all the rights, privileges, and franchises of railroad companies, organized under and pursuant to the laws of the state of Nebraska. [G. S., 206.]

ARTICLE III.-BOGUS SURVEYS.

4023 SECTION 1. [Plat of survey.] No proposition shall be submitted to the electors of any county in this state for donations of bonds or any other valuables, to any railroad corporation, unless said railroad corporation, through its authorized and responsible agent, files for record in the county clerk's office, where such donations of bonds or any other valuables are to be voted upon, a plat of the survey showing their exact line of route through said county, within at least two weeks previous to such an election; and no bonds, and so forth, shall be valid in case they are voted, unless said railroad corporation build their line of road within forty rods of their survey as filed in the county clerk's office. [1879, § 1, 151.]

ARTICLE IV.-SALES IN CERTAIN CASES.

4024 SECTION 1. [Continuous lines.] Every railroad company organized under the laws of this state whose railroad or railroads constructed or to be constructed within this state shall be so situated with reference to any railroad constructed or to be constructed through any adjoining state or territory by any railroad company organized or existing under the laws of the United States, or any

SEC. 6. "An act to legalize the incorporation of certain railroad companies in the state of Nebraska." G. S., 206. Took effect Feb. 14, 1873. ART. III. "An act to prevent railroad corporations to impose upon the people by bogus surveys, in counties or precincts where they are asked to vote bonds or other valuables, in aid of such railroad corporations." Laws, 1879, 151. Took effect June 1, 1879.

ART. IV, SECS. 1-2. "An act authorizing the sale and purchase of railroads in certain cases." Approved March 1. Took effect June 1, 1881. Act construed. 16 Neb., 257.

state or territory, that the same may be so connected at the boundary line of this state or at any point within this state by bridge, ferry, or otherwise, as to practically form a continuous line of railway over which cars may pass, is hereby authorized to purchase such connecting railway, or to sell the same to the railroad company constructing, owning, or operating the said railroad through said adjoining state or territory as aforesaid, to said point of connection. And any such foreign railroad company purchasing under the provisions hereof any such connecting railroad within this state may manage the same by its board of directors and officers, and may operate the same, and may issue thereon its stock and bonds to the same extent and in the same manner as authorized by the laws of this state, and the said company shall file for record in the office of the secretary of state of this state a true copy of its articles of incorporation, and the said company shall thereafter possess, exercise, and enjoy within this state as to the control, management, and operation of the said road, and as to the location, construction, and operation of any extension of its said railroad or any connecting railroad or feeders within this state all the rights, powers, privileges, and immunities, including the powers of eminent domain possessed by other railroad corporations of this state, and shall be liable to all the restrictions imposed by the general laws of this state upon the railroad corporations of this state. The purchase of any such railroad shall be subject to any and all laws, incumbrance, or indebtedness existing against the railroad company from which such road may be so purchased. [1881, chap. 65, § 1.]

4025 SEC. 2. [Effect of act.] Said corporation shall be subject to the laws of this state as to that portion of the road purchased, built, and operated in this state the same as if organized under the laws of this state; Provided, however, That nothing herein contained shall be construed as authorizing the purchase by any railroad company under the provisions of this act of any parallel and competing line of railroad within this state.

4026 SEC. 3. [Purchase, lease, sale, etc.] Any railroad company organized under the laws of this state may buy or lease the whole or any part of the railroad and branches, constructed or to be constructed, together with all the property, rights, privileges, and franchises thereto pertaining, of any railroad company organized under the laws of any other state or territory, and may aid such company in the construction of its road by the purchase of its stock and bonds, or by guaranteeing its bonds, or otherwise; and any railroad company of this state may sell or lease the whole or any part of its railroad and branches, constructed and to be constructed, together with all property, rights, privileges, and franchises thereto pertaining, to any railroad company organized or existing under the laws of any other state or territory, and any such foreign company may aid any railroad company in this state in the construction of its road and branches, by purchase of its stock and bonds, or by guaranteeing its bonds, or otherwise, whenever the roads of the respective companies (parties to such agreement to aid, or to such purchase, sale, or lease), constructed or to be constructed, shall, or will when constructed, so connect by bridge, ferry, railroad, or otherwise, as to practically form, in the operation thereof, a continuous line or lines of railroad over which cars may pass. The railroad company of another state or territory which shall so purchase or lease a railroad or railroads, in this state, shall possess, and may exercise and enjoy within this state, as to the control, management, and operation of the said road, and as to the location, construction, and operation of any extension or branches thereof, all the rights, powers, privileges, and franchises possessed by railroad corporations of this state. Such purchase, sale, or lease may be made, or such aid furnished, upon such terms and con

SECS. 3, 4. "An act relating to the purchase. lease, sale, and aiding of railroads in certain cases, and to the ratification of prior leases, sales, and consolidations." Laws, 1887, chap. 58. Took effect March 14, 1887.