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enter upon and appropriate such lands, and make surveys necessary to effect such changes and grades upon the same terms, and be subject to the same obligations, rules, and regulations, as are prescribed by law; and shall also be liable in damages, when any may have been caused by such change, to the owner or owners of lands upon which such road was heretofore constructed, to be ascertained and pa 1, or deposited as herein provided; but no damages shall be allowed, unless claimed within ninety days after actual notice in writing of such intended change shall be given to such owner or owners residing on the premises, or notice by publication in some newspaper in general circulation in the county, if non-resident.

SEC. 83. [Occupation of streets, alleys, etc.]—If it shall be necessary, in the location of any part of any railroad, to occupy any road, street, alley, or public way or ground of any kind, or any part thereof, it shall be competent for the municipal or other corporation, or public officer or public authorities, owning or having charge thereof, and the railroad company, to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied; and if said parties shall be unable to agree thereon and it shall be necessary, in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public way or ground, such company may appropriate so much of the same as may be necessary for the purposes of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chap

ter.

SEC. 84. [Borrowing money.]-Such company shall have power to borrow money on the credit of the corporation, and may execute bonds or promissory notes therefor, and to secure the payment thereof may pledge the property and income of such company.

SEC. 85. [Right of way.]-Such company may acquire, by purchase or gift, any lands in the vicinity of said road, or through which the same may pass, so far as the same may be deemed convenient or necessary by said company to secure the right of way to such as may be granted to aid in the construction of such road, and the same to hold or convey in such manner as the directors may prescribe; and all deeds and conveyances made by such company shall be signed by the president under the seal of the corporation, and any existing corporation may accept the provisions of this subdivision by filing in writing their acceptance thereof, under the seal of said corporation, in the office of the secretary of state. And upon filing such acceptance, such corporation shall, from the date thereof, succeed to and become invested with all the rights, privileges, immunities, and powers conferred by this subdivision, without reorganizing. The said secretary shall record and preserve such acceptance in his office, and a copy thereof, duly certified by said secretary, under the seal of the state, shall be evidence in all the courts of this state of such acceptance.

SEC. 86. [Crossing roads and streams.]-Any railway company may construct and carry their railroad across, over, or under any road, railroad, canal, stream, or water course, when it may be necessary in the construction of the same; and in such cases said corporation shall so construct their railroad crossings as not unnecessarily to impede the travel, transportation, or navigation upon the road, railroad, canal, stream, or water course so crossed. Said corporation shall have the right to change the channel of any stream or water course from its present location or bed, whenever it may be necessary in the location, construction, or use of their said road, provided they do not change its general course, or materially impair its former usefulness.

SEC. 87. [Office.]-Such corporation shall, upon commencing business, establish an office at some point on the line of its road, and may change the same at pleasure.

SEC. 83. Cited 14 Neb. 554, 26 Id. 363.
SEC. 85. Cited 15 Neb. 529.

SEC. 88. [Annual report.]—Each and every railroad company, incorporated under this subdivision, and such as shall hereafter accept the same, shall annually in the

month of January make, upon the oath of the president, secretary, or treasurer, a full report of the condition of its affairs to the auditor of the state, showing the amount of the capital stock of such company, the gross amount of receipts during the previous year, the cost of repairs and incidental expenses, the net amount of profits, and the div idends made, with such other facts as may be necessary to a full statement of the affairs and condition of such road; and the auditor shall incorporate an abstract thereof in his annual report to the legislature.

SEC. 89. [Consolidation.]-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 the 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.

SEC. 90. [Approval by stockholders.]-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 submittted 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 post office, and published at least for six successive weeks, in one newspaper in one of the cities or towns in which each of said corporations has its principal office of business, and has been sanctioned by such stockholders, by the vote of at least two-thirds in the amount of the stock represented at such meeting, voting by ballot in regard to such agreement, either in person or by proxy, each share of capital stock being entitled to one vote. And when such agreement of the directors has been so sanctioned by each of the meetings of the stockholders, separately, after being submitted to such meetings in the manner above mentioned, then such agreement of the directors shall be deemed to be the agreement of the said two or more corporations.

SEC. 91. [Agreement filed with secretary of state.]-Upon making the agreement mentioned in the preceding section, in the manner required therein, and filing a duplicate in counterpart thereof, in the office of the secretary of state, the said two or more corporations (mentioned or referred to in the last two preceding sections, or any other law of this state) shall be merged in the new corporation provided for in such agreement, to be known by the corporate name therein mentioned; and the details of such agreement shall be carried into effect as provided therein.

SEC. 92. [Title of property.]-Upon the election of the first board of directors of the corporation created by the agreement in the preceding section mentioned, and

SEC. 89. Consolidation authorized only in cases where the two roads, when so consolidated, will form a continuous line. 24 Neb. 157.

by the provisions of this subdivision, all and singular the rights and franchises of each and all of said two or more corporations, parties to such agreement, all and singular the rights and interest in and to every species of property, real, personal, and mixed, and things in action, shall be deemed to be transferred to and vested in such new corporation, without any other deed or transfer. And such new corporation shall hold and enjoy the same, together with the right of way and all other rights of property, in the same manner and to the same extent as if the said two or more corporations, parties to such agreement, should have continued to retain the title and transact the business of such corporations. And the titles and the real estate acquired by either of the said two. or more corporations shall not be deemed to revert or be impaired by means of anything in this subdivision contained; Provided, That all rights of creditors, and all liens upon the property of either of said corporations shall be and hereby are preserved unimpaired; and the respective corporations shall continue to exist, as far as may be necessary to enforce the same; Provided further, That all debts, liabilities, and duties of either company shall henceforth attach to such new corporation and be enforced to the same extent and in the same manner as if such debts, liabilities, and duties had been originally incurred by it.

SEC. 93. [Duties of the consolidated companies.]—When any two or more railroad companies shall become consolidated, as contemplated by the provisions of this subdivision, such companies so consolidated shall keep each and every railroad line that may come into its possession by such consolidation in good running order, with sufficient rolling stock to transfer the freight and passengers. They shall not discriminate against the business of either, or any of such railroad lines, either directly or indirectly, by the detention of freight or passengers, or by charging more for freight or passengers than is charged in proportion upon any other railroad line under the control of said company so cons onsolidated; and whenever any railroad company, persons, or person, their grantors, assignors, lessors, or mortgagors shall have received any lands, bonds, moneys, or other valuable thing, to aid in the construction of any railroad in this state, such railroad company, persons, or person, their grantees, assignees, lessees, or mortgagees shall keep all such roads in good running order, and shall run all trains over the same, and shall cause the same to be listed for taxation as provided in section 17 of chapter sixty-six, entitled "Revenue," and for each and every violation of any condition, requirement, or non-compliance with this act, the corporation, persons, or person so violating, or non-complying, shall be fined in any sum not more than five hundred dollars, to be paid to the person or persons so injured, and to be collected by the proper civil action, and shall, in the discretion of the court, forfeit its charter and franchises, and the property of such corporations, companies, persons, or person so violating, or non-complying, shall be subject to execution without stay thereof, where the same has not been forfeited. [Amended 1875, 69.]

SEC. 94. [Aiding other railroads-Leasing.]-Any railroad company heretofore or hereafter incorporated may, at any time, by means of subscription to the capital stock of any other company or otherwise, aid such company in the construction of its railroad for the purpose of forming a connection of said last mentioned road with the road owned by the company furnishing such aid; or any railroad company existing in pursuance of law may lease or purchase any part of or all of any railroad constructed or to be constructed by any other company, if said company's lines of railroad constructed or to be constructed are continuous or connected as aforesaid, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies, whose lines are so connected, may enter into an agreement for their common benefit consistent with and calculated to promote the objects for which they are created; Provided, That no such aid shall be furnished, nor any purchase,

SEC. 93. The reference in this section to sec. 17, chap. 66, is to general statutes, 900. That sec. 17 has been substantially re-enacted by laws of 1879, 292, amended 1881. See secs. 39 and 40 of chapter 77, post.

SEC. 94. Leasing authorized only where roads of lessee and lessor will form a continuous line. 24 Neb. 159.

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. 19 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, damage 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. İd. 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. Stat ory mode of acquiring right of way is exclusive as to man. ner 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. 48s. 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 pur chaser 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 freeuse 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 statę, 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. Motion to dismiss appeal improper. 27 Neb 73. New pleadings unnecessary when amount due the only question. 28 Neb. 94. Interest allowed when verdict exceeds award. 28 Neb. 166.

24 1. an act to provide or 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.

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