troops of the United States, to associate themselves together as a military company or organization, or to drill or parade with arms in any city or town in this state without the license of the governor thereof, which license may at any time be revoked; And provided further, That students in educational institutions where military science is part of the course of instruction may, with the consent of the governor, drill and parade with arms in public under the superintendence of their instructors, may take part in any regiment or brigade encampment, under the command of their military instructor, and while so encamped shall be governed by the provisions of this act. They shall be entitled only to transportation and subsistence, and shall report and be subject to the com. mandant of such encampment; Provided, That nothing herein contained shall be construed so as to prevent benevolent or social organizations from wearing swords.

SEC. 55. [Violations of act.]-Whoever offends against the provisions of the preceding section, or belongs to, or parades with, any such unauthorized body of men with arms, shall be punished by a fine not exceeding the sum of ten ($10.00) dollars or by imprisonment in the common jail for a term not exceeding six months, or both.

SEC. 56. [Officers-Arrests by.]-Any commissioned officer of the several commands shall have the ordinary powers of a sheriff to arrest any officer or enlisted man for the commission of any crime punishable under the laws of the state, while on any duty authorized by this act and may proceed against any such offender by information or complaint before any court of law having cognizance of such offense, and may call to his aid as many of his men as may be necessary to make such arrest.

SEC. 57. [Appropriations.]-For the purpose of carrying out the provisions of this act, there is hereby appropriated, out of the general fund not otherwise appropriated, the sum of thirty thousand ($30,000.00) dollars the first year, and twenty thous and ($20,000.00) dollars each succeeding year (or so much thereof as may be necessary) until otherwise provided by law. The appropriations made by this section shall be available for the two years ending March 31, 1889, and shall be in addition to the appropriations made under the provisions of an act entitled "An act making appropriations for the current expenses of the state government for the years ending March 31, 1888, and March 31, 1889, and to pay miscellaneous items of indebtedness owing by the state of Nebraska."

SEC. 58. [Commander-in-chief.]-The governor shall be commander-inchief of the militia, and may employ it, or any part of it in the defense of or relief of the state, or any part of its inhabitants or territories, and shall have all the powers necessary to carry into effect the provisions of this act.

SEC. 59. [Acts repealed.]—All acts and parts of acts inconsistent with the provisions contained in this act are hereby repealed.

CHAPTER 57.-MILLS AND MILL-DAMS.

SECTION 1. [Ad quod damnum-Application for writ.]-If any person, desiring to erect a dam across any water-course for the purpose of building a water grist, saw, carding, or fulling mill, or of erecting any machinery to be propelled by water, be the owner of the lands on which he desires to build such mill or erect such machinery, on one side of such water-course and not of the lands on the opposite side against or upon which he would abut his dam; or, if any person be the owner of the lands, on which he desires to erect any such mill or machinery on both sides of such water-course; or, if any person shall have erected such mill and mill-dam on his own lands, he may file a petition for leave to build or continue such mill-dam and for a writ of ad quod damnum in the district court of the county where such lands lie, against the owners or proprietors of the lands above and below such dam, which are, or probably will be, overflowed or injured thereby, or against or upon which he may desire to abut his dam.

SEC. 2. [Petition.]—The plaintiff shall set forth in his petition, as near as may be, the place where such dam is built, or proposed to be built, the height or proposed height of such dam, the kind of mill built or proposed to be built, his title to the lands whereon he has erected or proposes to erect such mill or machinery, whether legal or equitable, and shall describe with certainty the lands above and below such dam, the property of others which are, or will probably be overflowed or injured as aforesaid, and shall give the name of the owner of each tract, or, if the name of any such owner be unknown, the plaintiff shall so state in his petition.

SEC. 3. [Writ-Notice to defendants.]-The court may thereupon order the clerk to issue the writ, directed to the sheriff, commanding him to make out a list of twenty-four disinterested freeholders of the county and return the same to the clerk of said court forthwith; and to notify each of the defendants, if found within the county, that the plaintiff, naming him, has filed his petition against the defendants, naming them in said court, for leave to build or continue his mill-dam at the place stated in the petition, to be set forth in said writ and notice, and that a writ of ad quod damnum has been granted by such court, and of the day and term when the same was granted, and that they are required to appear at the office of said clerk, on a day and hour to be fixed by the sheriff, and named in said notice, and then and there, in the presence of the said clerk, to strike, alternately with the plaintiff, a jury of inquest; and further commanding said sheriff to summon and impanel the jury so struck to meet on the lands where such dam is built or proposed to be built, on a day and hour to be named by the court, and inserted in the order granting the writ, then and there to inquire and report of the matters to be given them in charge.

SEC. 4. [Same-Service.]-The notice to be served upon the defendants as aforesaid shall be in writing, and shall be served at least ten days before the time fixed for striking the jury, by delivering a copy to each defendant personally or by leaving such copy at his usual place of residence.

SEC. 5. [Same-By publication.]-If any defendant's name be unknown, or if he be not a resident of the county, the plaintiff may, at the time he brings his

CHAP. 57. "An act relating to mills and mill-dams." G. S. 472. Took effect Feb. 26, 1873. In proceedings under this act, where A in good faith commenced the erection of a mill, of which B had notice, and to which he made no objection, he cannot, after A has expended a considerable sum on his mill, enjoin him from erecting a dam, the effect of which would be to flow the water back on an unoccupied mill site owned by B. 10 Neb. 465. Statute is exclusive. 10 Neb. 467. Rights of conflicting claimants; overflow of mill site higher up river by owner of dam below. 13 Neb. 547. Damages for want of use of mill, and the building of which was claimed to be delayed, Held, Too remote and uncertain. 14 Neb. 374. Water grist mill is a work of internal improvement. 14 Neb. 333. 20 Id. 452. Damages allowed land owner; general rule. 17 Neb. 577. Rights of grantee of mill-dam and site; grantee liable same as grantor. 17 Id. 578. Where there is no resistance to proceedings, plaintiff is liable for costs. 17 Id., 425. See also 23 Neb., 212. Right to reservoir of water. 27 Neb., 312. Cited 30 Id., 870Remedy for indemnity (secs. 1-14) cumulative. 29 Id., 768.

petition or at any time thereafter, file with the clerk an affidavit to that effect, and thereupon may obtain service upon such non-resident or unknown defendant by publi cation. The publication must be made four consecutive weeks in some newspaper printed in the county where the petition is brought, or if no newspaper be printed in such county, then in some newspaper printed in the state and of general circulation in the county. It must notify the defendant of the time when the petition was filed, of the object and purpose thereof, of the place where the dam has been or is proposed to be built, as near as may be, of the term when said petition will stand for hearing, and must contain an accurate description of the lands, owned by such defendant that are likely to be overflowed or injuriously affected, or against or upon which it is proposed to abut such dam, as the case may be. Such publication must be completed at least one term before the final adjudication in the matter.

SEC. 6. [State lands affected.]-Should any of the lands, likely to be overflowed or injured, or upon or against which it is proposed to abut such dam as aforesaid, be public lands of the state, the court may direct the prosecuting attorney to see that the interests of the state are protected, or may appoint some suitable person to act in his stead, who shall be sworn faithfully and impartially to discharge his duties as attorney for the state in the matter, and who shall be paid a fee, not to exceed twentyfive dollars, to be taxed as costs to the plaintiff.

SEC. 7. [Jury of inquest.]-On the day fixed for striking the jury as aforesaid, the plaintiff and defendants or their agent or attorney, shall alternately in the presence of the clerk, strike out one name from said list of twenty-four, until but twelve remain, and such twelve shall be the jury, and the clerk shall certify their names to the sheriff. Should the defendants fail to appear, or should they refuse or fail to strike, or if they are unable to agree on any name or names to be struck from said list, in their turn, the clerk shall strike in their stead.

SEC. 8. [Same-Duties.]-The jury so struck shall be summoned and impaneled by the sheriff, and, being sworn faithfully and impartially to inquire and report of the matters be be given them in charge, shall be charged by the sheriff, as the circumstances of the case may require, substantially as follows: First-To view the land proposed for an abutment and to locate and circumscribe by metes and bounds one acre thereof, having due regard therein to the interests of both parties, and to appraise the same according to its true value, Second-To examine the lands above and below the property of others, which are, or may probably be overflowed or injured, and say what damage it has been, and will be to the several defendants, naming them, and whether the mansion house of any such defendant or defendants, or the offices, curtilages, or gardens thereunto immediately belonging, will be overflowed or injured. Third-To inquire whether, and in what degree fish of passage, or ordinary navigation will be obstructed, and whether, in their opinion, the health of the neighborhood will be annoyed by the stagnation of the water. Fourth-Whether, and by what means, any such obstruction, annoyance, or injury can be prevented. Fifth-Whether such mill is, or will be, of public utility.

SEC. 9. [Return of inquest-Answer.]-The inquest so made, being signed by the jurors, shall, together with the writ, be forthwith returned by the sheriff to the office of the clerk of such court. Should such return be made in vacation, the defendants, or any of them, shall have until the first day of the next term, to show cause why the plaintiff should not have leave to build or continue his said mill-dam. Said time may be extended by the court on good cause shown. If the return be made in term, the court shall, by order, fix a reasonable time within which such cause may be shown.

SEC. 10. [Interested parties-Amendments.]-Any person interested in or affected by any inquest or proceeding provided for in this act, may, on motion, and proper showing, be made a defendant therein; and the court may permit amendments of the proceedings, and allow new parties to be brought in, on motion of the plaintiff, as in other cases.

SEC. 11. [Trial-Proceedings.]-Any defendant may, after the return of the sheriff, aforesaid, traverse, by way of answer, any material fact stated in the petition or inquest, or he may plead any valid matter in bar of the plaintiff's right to have the benefit of the writ; or he may file exceptions for substantial defects to the writ, the inquest, or any of the proceedings herein provided for; and issues of law and of fact may be made up and tried as in other cases; and the court may quash the writ, or set aside the inquest, and may award a new writ on payment of all costs by the party who has built, or proposes to build, such mill-dam, or the court may dismiss the proceedings, or may ratify and confirm such inquest.

SEC. 12. [Same-Judginent.]-If on such inquest or trial it shall appear to the court that the mill or appurtenances thereunto belonging, or the mansion house of any defendant, or curtilage or garden thereunto immediately belonging, will be or has been overflowed or injured, or the health of the neighborhood annoyed, they shall not give leave to build or continue such mill-dam; but, if none such injuries have accrued, nor will be likely to accrue, they shall proceed to adjudge whether, under all the circumstances, it be just and reasonable that such leave be given or not given.

SEC. 13. [Same-Dam erected.]-In case such petition be filed by the plaintiff, after having erected his mill-dam, no damages shall be allowed, and the application shall be dismissed, unless the case be such that leave would have been given to build such mill-dam if such petition had been brought before the erection thereof. SEC. 14. [Persons damaged-Proceedings.]-Where any person may have built a mill or other dam whereby the water of any river, creek, run, or spring may be rendered stagnant, or any lands may be overflowed or injured thereby, any person or any number of persons interested therein, or who may be damaged by the stagnation or overflowing of said water, or otherwise, may file a petition against the owner of such mill-dam for such writ, and like proceedings shall be had mutatis mutandis, as where the owner of a mill-dam so built brings the petition. But such owner shall have ten days previous notice of the filing of the petition.

SEC. 15. [Fee of mill site.]-If the petition is brought to obtain leave to build a mill-dam, and such leave is granted, the plaintiff shall, upon paying respectively to the persons entitled the value of the acre so located and the damages assessed on the inquest aforesaid, become seized in fee-simple of the said acre of land; but if he shall not, within one year after the final adjudication, begin to build said mill, and finish the same within three years, and afterwards continue it in good repair for public use, or, in case said mill and dam, or either of them, be destroyed, if he shall not begin to rebuild the same within one year after such destruction, and finish the erection thereof within three years thereafter, the said acre of land shall revert to the former proprietor and his heirs, unless at the time of such destruction the owner of such mill be an infant, or imprisoned, or of unsound mind, in which case the length of time above specified shall be allowed after such disability is removed.

SEC. 16. [Damages-Assessment.]-Where the petition is brought against the owner of a mill-dam already built, as provided in section fourteen of this act, and the mill is found to be of public utility, or where the petition is brought to obtain leave to build or continue a mill-dam, the jury shall assess such damages as the party or parties injured may have sustained and will sustain by the erection and continuance of such mill-dam. But where the petition is brought against the owner of a mill-dam as aforesaid, and such mill is not found to be of public utility, no damages shall be assessed for injuries which may accrue by the continuance of such mill-dam.

SEC. 17. [Damages-Judgment.]-Where the petition is brought to obtain leave to build or continue a mill-dam, and such leave is granted, or where it is brought against the owner of a mill-dam as aforesaid, the court may render judgment for the damages assessed against the person owning or proposing to build such mill; and such assessment of damages, when fully paid and satisfied, after confirmation thereof by the court, shall bar a recovery for any damages or injury sustained previous or subsequent

SEC. 11. Remedy cumulative. 29 Neb., 768. Requirements of petition in sec. 2 do not apply. 26 Neb., 722. SEC. 15. One owner a minor, protection of statute extends to all. 34 Neb., 723.

to such inquest in any and every action at law; Provided however, That where the petition is brought against the owner of a mill-dam already built as aforesaid, unless the mill is found to be of public utility, such assessment, though paid and satisfied, shall not bar a recovery for damages or injuries which may accrue thereafter.

SEC. 18. [State land-Damages.]- The damages assessed upon public lands of the state shall be collected as in other cases, and paid into the state treasury to the credit of the proper fund.

SEC. 19. [Infant defendants.]-Should any of the defendants to the petition be infants, the proceedings shall be conducted in all respects as if such infants were of full age; but the court shall appoint some suitable and discreet person not of kin to the plaintiff, to act as guardian ad litem for such infants. Such guardian ad litem shall appear and defend for such infants, but no confession, admission, or default on his part. shall prejudice or affect their rights or interests.

SEC. 20. [Costs.]-Should no resistance be made to proceedings brought under this act to obtain leave to build or continue a mill-dam, the costs shall be adjudged against the plaintiff; but if such proceedings be resisted in any stage thereof, the court shall equitably adjust the costs which are caused by such resistance, having regard to the event.

SEC. 21. [Jurors-Vacancies.]-Should any of the jurors so summoned, fail to appear at the time and place appointed for the inquest, the sheriff shall forthwith prepare a list of three disinterested freeholders of the county for each juror so in default, and of the list so prepared, the plaintiff, and defendants, their agent or attorney, shall alternately, in the presence of the sheriff, strike out one name till but the number required to fill the panel remains. If the defendents fail to appear, or should they refuse or fail to strike, or if they are unable to agree upon any name or names to be struck from said list in their turn, the sheriff shall strike in their stead. The sheriff shall forthwith summon the freeholders so chosen, and the same procedings shall be thereupon had as when all the jurors appear.

SEC. 22. [Defaulting jurors-Punishment.]-The sheriff shall in his return report to the court the name of any juror so in default as aforesaid, and on motion of the plaintiff, such defaulting juror may be attached as for contempt, and unlesswhen brought before the court, he then and their purge himself of such contempt to the satisfaction of the court, he may be adjudged to pay the costs incurred by reason of his said default, and to stand committed until the same are paid; and unless he voluntarily appear to purge himself as aforesaid, he shall in any event, pay the costs of such attachment.

SEC. 23. [Jurors' fees.]--Each juror shall be allowed one dollar for each days" attendance upon such inquest, and other costs shall be allowed as in other cases.

SEC. 24. [Preservation of mill.]-When the water backed up by any milldam belonging to any mill or machinery is about to break through or over the banks of the stream, or to wash a channel so as to turn the water of such stream, or any part thereof, out of its bed or ordinary channel, whereby such mill or machinery will be injured or affected, the owner or occupier of such mill or machinery, if he do not own such bank or banks or the lands lying contiguous thereto, may, if necessary, enter thereon, and erect and keep in repair such embankments, fortifications, and other works, as shall be requisite to prevent such water from breaking through or over the bank or banks of such stream, or washing a channel as aforesaid, such owner or occupier committing thereon no unnecessary waste or damage.

SEC. 25. [Same-Damages.]-Nothing contained in the last preceding sec tion shall be construed to bar the owner of such bank or banks, or lands lying contiguous thereto, from recovering the amount of any injury which he may have actually and in fact sustained by the erection or repair of such embankment, fortification, or other works.

SEC. 26. [Injuring mill site.]-If any person shall injure, destroy, or remove any such embankment, fortification, or other works, the owner or occupier of such