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of persons who shall desire to construct a lateral railroad, not exceeding ten miles in length, to locate and construct the same to any other railroad, canal, or slack-water navigation, on, over, through, or under any intervening lands, and, by their engineers, agents, artists, and assistants, to enter upon any such intervening lands, doing no unnecessary damage, and survey, mark, and lay out a route for said proposed lateral railroad; and thereupon may present a petition to the Circuit Court of the county in which intervening lands are situate, setting forth the beginning, course, distance, and termination of such proposed lateral railroad, together with a map or profile of such route, indicating the excavations and embankments on said route, and designating, particularly, the name or names of the owner or owners, occupant or occupants, agent or agents of such intervening lands, with a particular description of the same; which said petition shall be filed in said Court. And thereupon said Court shall appoint three judicious and disinterested freeholders of such county as viewers, who, after five days' notice, to be given by such applicant to each of said owners, occupants, or agents of such intervening lands, of the time and place, and after being duly sworn to discharge their duties fairly and honorably as such viewers, shall view the said proposed route as marked and laid out for such railroad. And they, or a majority of them, shall assess the damages, if any, which may be sustained by any such owner or owners, separately, of such inter vening lands, by reason of the location, construction, and use of such proposed lateral railroad, and report the same in writing to the Clerk of said Court immediately after said assessments are made; which said report shall be filed in the office of the Clerk thereof, and if not excepted to within twenty days after the filing of the same, by indorsing thereon "not accepted," and signed by the party so excepting, the same shall be confirmed by said Court. But if either party be dissatisfied with such report, and signify the same as above provided, the same shall stand for trial at the next ensuing term of said Court, provided not less than ten days shall have intervened between the exception so taken as aforesaid and the term of said Court; and upon the trial, the general denial to said petition and report shall be deemed and taken as filed, and all matters of defense and reply may be given in evidence under such general denial. The party excepting shall have the affirmative of the issues, provided that said viewers or jury trying said cause shall, in assessing such damages, take into consideration the advantages which may be derived by the owner or owners of such lands passed on, over, through, or under by such proposed lateral road, by its location and construction thereon; and provided, further, that upon the filing of said report by said viewers in such Court, the damages assessed by them shall be paid to said Clerk, or be tendered to the party in whose favor the damages are awarded or assessed. On making payment or tender thereof as aforesaid, it shall be lawful for such person or persons or company of persons, and their lessees, to hold and take possession of the interests in such intervening lands or materials appropriated, and the privilege of using any materials on such roadway within fifty feet on each side of the centre of said roadway for the use aforesaid. The costs of the assessments by the viewers shall be paid by the said petitioners, and the costs in case of trial shall be paid as in other cases now provided for by law.

3988. Certificate of incorporation. 6. Such person or persons or company of persons, who shall determine to construct such lateral railroad shall make out, under oath, a certificate of the name or names of such

person or persons or company of persons, setting out the beginning, termination, and length of said proposed lateral railroad, and file the same in the Recorder's office in the county or counties in which said road is located; and shall have the power and capacity to contract and be contracted with, to sue and to be sued, and generally to exercise such powers and perform such acts and duties as may be necessary and proper to carry out the purposes contemplated by this Act. In cases of sale or assignment, the purchasers, assignees, or lessees thereof shall file the same in such Recorder's office; and such certificate of organization, sale, or assignment shall be, by the Recorder, recorded in the proper record of his office; and for all services aforesaid such Recorder shall be entitled to receive fifteen cents for each one hundred words.

3989. Right-of-way-Width - Restrictions. 2. Such proposed lateral railroad shall not exceed one hundred feet in width, except where excavations, embankments, or other necessity require it; nor shall the same pass through any burial-ground, place of public worship, or any public building or dwelling-house, without the consent of the owner.

3990. Appropriation of material. 3. It shall be lawful for any such person or persons or company of persons, their agents or employés, desiring to construct such lateral railroad, to enter upon any land near or adjoining thereto, to search for stone, wood, gravel, or other materials to be used in the construction thereof; but no stone, gravel, wood, or other materials shall be taken from any land, for said purpose, until the rate of compensation therefor shall be ascertained and tendered to the owner thereof. But if the parties can not agree thereon, each party shall choose a disinterested and reputable freeholder of the neighborhood (who, if they can not agree, shall choose an umpire of like qualifications) who shall, under oath or affirmation, fairly and impartially estimate the same; and such award shall be final and conclusive — the amount of which said award shall be paid or tendered to the person or persons, entitled thereto, if within the State or known. 3991. Connections.

4. It shall be lawful for any such person or persons or company of persons to connect such lateral railroad with

any rail. road or railroads incorporated or to be incorporated in this State, and also

ny highway or public improvement: Provided, That if the parties interested can not agree upon the mode, manner, or point of connection with such railroad or railroads, the same shall be determined in the same manner as the compensation for materials prescribed in the preceding section.

3992. Unknown and non-resident owners of lands. 5. If any of the owners of any intervening lands aforesaid shall be unknown, non-resident, or incompetent to act, then the occupant of such lands or the agent of such owner shall be deemed and taken to be the owner of such lands; and in case where such owner or agent is unknown and such lands are unoccupied, then, in all such cases, the Sheriff of such county shall be deemed the owner of such lands for all the purposes contemplated in this Act, and shall be paid two dollars per day for every day's service in and about such matter.

3993. Pay of viewers. 7. The viewers mentioned in this Act shall each receive two dollars per day for their services to be paid by said petitioners.

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ARTICLE 1 - BEFORE CONSTRUCTION. 3885. How to form corporation. All that is required in the way of a description of the line, in the articles of incorporation, is to give the names of the places from which and to which the proposed route is to be constructed and each county in to which it is intended to pass and its length, so nearly as may be; Board etc. o. Center Tp, 101-441.

2. In a direct proceeding, in the nature of quo warranto, by the state, against individuals who assume to act as a rail road corporation, requiring them to show cause for so acting, a showing by defendant of the filing of the articles of association and a subscription of the minimum amount of stock required by law is not conclusive on the state. Where it is established, by evidence, that the subscribers to a large portion of the fifty thousand dollars of stock are insolvent and were so at the time they subscribed, with no expectation of ability to pay, a forfeiture will be declared; IIolman v: State, 105–572.

3886. Articles, where filed — Effect - Evidence. In filing articles it is the act of depositing them in the office of the secretary of state — not the mere filing mark thereon that constitutes the filing. The fact that the secretary uvlawfully antedated them is not ground for an information - quo warranto; State c. Foulkes, 94 496.

3887. Subscription books. Under this statute, the subscriptions to stock must be made, bona fide, by persons who have a reasonable expectation of ability to pay; Holman c. State, 105–571.

3896. Calls. This section becomes, in effect, part of the contract between the cor. poration and the stockholder. Yo notice or demand for the payment of an assessment is necessary, except where forfeiture of the stock is sought to be enforced; Hill o. Nisbett, 100-336. 3897. By laws.

In a strictly legal sense the board of directors is the agent and representative of the company. In a practical sense, it becomes the corporation itsell; L. E. & St. L. Ry ('o. v. M'Vay, 98-393.

3902. Map and profile. That a rail road has been permanently located is shown by the map and profile properly filed with proof of actual construction according thereto; Caffyn e. State, 91-329.

3903. General powers. A rail road compang luas a right to appropriate so much land as is fairly necessary for its purposes. The company is the judge of the necessity (see sects. 3907, 3997); Swinney o. F. W. etc. Co., 59-205.

2. An entry upon land, by a rail road company, for the purpose of making a survey for a right of way is not an actionable wrong; Burrow v. T. Haute etc. Co., 107– 434.

3. This section, conferring on rail road companies power to cross highways without compensation, has reference to ordinary highways controlled by public authorities and maintained by taxation. It does not embrace a highway used for gravel road purposes by a private corporation, under a grant froní a board of county com. missioners; Jod'polis etc. Co. v. Belt: R’y Co., 110-12.

4. It is the duty of a rail road company to construct its road, where it intersects

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with any public highway, in such manner as to afford security for life and property. This is so whether the highway be laid out before or after the construction of the railroad.-L'sville, etc. Co.v. Sinith, 91-121.

5. The fifth subdivision of this section, which confers on a railroad company the right to construct its track across a public highway, imposes on it the duty of restoring the higliway to its former state so nearly as possible. A failure to observe this statutory duty is actionable negligence in respect to any person who sustains injury thereby without his fault. While the highway can not be restored, in all respects, to its former condition, it must be so far restored as not to impair its usefulness more than the additional use of it for railroad purposes renders absolutely necessary. Wherefore, a railroad company having left its track nine inches above the surface of the highway, it is liable for the value of a horse, the death of which was caused by extraordinary exertion in pulling a loaded wagon over the obstruction. The fact that the owner of the animal had know). edge of the condition of the crossing, and the further fact that he did not lighten his load when he met the obstruction, it was held, do not per se constitute such contributory negligence as should bar recovery.-E. & T. H. R. R. Co. v Carvener, 113-52

Under the fifth subdivision of this section a railroad company is fully authorized to build, construct and maintain its track over and across a public highway and to operate its line of road by running locomotives and trains of cars thereon. It becomes, however, the company's duty to restore such highway to its former state or in a sufficient manner not to unnecessarily impair its usefulness. For the non performance of this duty the general laws of the state for the incorporation of railroad companies provide no penalty and prescribe no remedy. It has been held, however, by the supreme court, that the performance of such duty by a railroad company may be compelled by mandate.-Cummins v. E. & T. H. R. R. Co., 115-119.,

This statute prescribes a plain duty. The right to interfere with a highway is coupled with the duty to make it as safe as it was before it was disturbed, or at least, to use 'reasonable care and skill to do so. This duty is violated if there is a failure to restore it to its former condition, in all cases where the exercise of reasonable care and skill can effect a restoration. A railroad company having been permitted to lay its track along or across a high way, it is bound to the use of every reasonable precaution to prevent injury to those passing along or across such high way or crossing its track that is laid along or across the highway if it fails to exercise a proper degree of care - not only such as is provided by statute but, also, such as is rendered necessary by the character of the obstruction and its location, having reference to a like reasonable exercise of care on the part of those approaching the obstruction - it becomes a nuisance to the extent of its injury to individual rights and renders the company liable in damages for all the consequences.-E. & T. H. R. R. CO. 7. Crist, 116-453.

In a proceeding by one railroad company to condemn and appropriate a right of way across the tracks of another company, under clauses 5 and 6 hereof, the complaint or instrument of appropriation set forth the effort to reach an agreement thus: “having located the line and route of its said proposed extension of road over the lands and premises hereinafter described, and having attempted and failed and being unable to agree with respondent in regard to the terms of, or in regard to the compensation therefor," the plaintif did take and appropriate said way. (a) The effort to agree must be made on the points of (1) compensation, (2) points of crossing, and (3) manner of crossing and connections. Such effort is a condition precedent to the exercise of the power to appropriate. (5) The instrument of appropriation must affirmatively show the agreement, or failure to agree on each of these three points and, therefore, in this case was insufficient. (c) The word “terms," as used in the instrument of appropriation, is not broad enough to cover the three essential points, (l) There may be a waiver of an agreement or of an effort to agree, but such waiver should be distinctly averred. (e) An appeal is 'not a waiver of any objection reasonably and appropriately made.-L. S. & M. S. Ry. Co. v. C., W. & M. Ry. Co., 116-580.

CHAPTER 38, CORPORATIONS - RAILROADS — AFTER ORGANIZATION.

ART.

ART.

1. Connecting lines.
2. Forfeitures.
3. Franchises,

4. Liabilities and obligations.
5. Public aid.
6. Rights of way.

ARTICLE I-CONNECTING LINES

SEC.

SEC. 3994.

4000.

Contracts ratified.

Foreign roads.

3998b. Gates in fence. 3995. Bridge on State line - Joint use.

3998c. Animals killed or injured - Liability. 3996. Right of way.

3999. Connecting contracts. 3997. Appropriation of lands. 3998. Fee simple in way.

4001. Liability to third persons. 3998a. Farm crossings.

(1863, p. 33. In force March 7, 1863.] 3994. Foreign roads.

I. Any railroad company incorporated by special charter under the laws of the States of Ohio or Illinois

, or under any general law of either State, with its terminus at the boundary of either State, may continue its road into this State, so far as may be necessary to form a connection with any road already built in this State; and may, for such purpose, purchase and hold such real estate as is necessary for depot buildings, machine shops, stock yards, tracks, crossings and sidings.

3995. Bridge on State line-Joint use. 2. Whenever railroads have been chartered by the joint action of the Legislatures of Illinois and Indiana or Ohio and Indiana, or whenever separate charters have been granted by each State, and a railroad has been built under separate company organizations and operated through one or more of said States, and when the line dividing the State of Indiana from either of said States is a water-course which has been bridged at the joint expense of two of such separate railroad company organizations, the company desiring to extend its line into this State shall have the right to maintain and use such bridge, so far as may be convenient and necessary and so as not to interfere with the necessary joint use thereof by the companies owning the same, in the transaction of their ordinary joint business, and may extend its track upon and across such joint bridge, from the Indiana shore of said stream, so far into the State of Indiana as may be necessary to form a perfect connection with other roads by means of tracks, side tracks, crossings and sidings; and, so far as may be necessary for the accommodation of the business of such corporation, it may procure grounds and erect depot buildings, machine shops, and such other buildings within this State, provided that the distance from the State line to such connection or crossing, as proposed, shall not exceed three miles.

3996. Right of way. 3. The president and directors of such railroad company so extending its line of road into the State of Indiana, or any person authorized by them thereto, may obtain from any person or persons through whose lands the proposed extension of their said road passes, a relinquishment of so much land as may be necessary for the purpose of said extension or as may be convenient and proper therefor.

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