served by delivering a copy thereof to such owner or owners by some credible person, and proof of the service shall be made by the affidavit of such person. If the name or residence of the owner be unknown, or if the owners, or any of them, do not reside within the territory, notice of the time of hearing the petition, reciting the substance of the petition and the day fixed for the hearing thereof, shall be given by publication for three weeks consecutively, prior to the time of hearing the petition, in a newspaper published in the county in which the proceedings are pending, if one is published in the county, and if such owner has a usual place of abode in said territory, said notice may be served by leaving a copy thereof at said usual place of abode with some agent, servant or employes or member of the family of such owner found at such usual place of abode over the age of fifteen years, and informing such person that said notice is to be delivered to the party or owner upon whom such notice is sought to be had.

Sec. 3. The court on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, residents of the county in which the real estate or a part thereof is situated, to assess the damages which the owners may severally sustain by reason of such appropriation, who, after having viewed the property, shall forthwith return, under oath, such assessment of damages to the clerk of such court, setting forth the amount of damages; and should more than one owner be included in the petition, then the damages allowed each shall be stated separately, together with a specific description of the property for which such damages are assessed, and the clerk shall file and record the said report; and thereupon such company shall pay to the said clerk the amount thus assessed, for the party in whose favor such damages have been assessed; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for the uses aforesaid; and upon the failure to pay the assessment aforesaid, the court may, upon motion and notice by the party entitled to such damages enforce the payment of the same by execution.

Sec. 4. Any number of owners, residents in the same county may be joined in one petition, and the damages to each shall be separately assessed by the same commissioners.

Sec. 5. All persons in occupation of, or having or claiming an interest in, any of the property described in the complaint or in the damages for the taking thereof, though not named, may appear, plead and defend, each in respect to his own property or interest,

or that claimed by him, in like manner as if named in the complaint.

Sec. 6. Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall duly notify the party whose property is affected, of the filing thereof; and the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk's office, within ten days after the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown to be made, either by the commissioners already ap pointed or by three other qualified commissioners to be appointed for that purpose. But notwithstanding such exceptions and order for a new appraisement, such company may proceed to erect said telephone, or telegraph line, or construct said railroad or other public improvements in connection with and for the use of such railroad; and any subsequent proceedings shall only affect the amount of compensation to be allowed in all cases arising under the provisions of this act, the report of the commissioners, when signed by a majority of them, shall be taken and considered as the report of all.

Sec. 7. The costs of the proceedings to appropriate the right-ofway shall be paid by the parties seeking the appropriation up to and including the final report of the commissioners. The court shall allow the commissioners a reasonable compensation for theit services, not to exceed five dollars each per day, which shall be taxed as costs in the proceedings, and the actual necessary expenses of such commissioners, to be approved by the court.

Sec. 8. Within twenty days after the final confirmation of any report of such commissioners, as provided for in section 6 of this act, any person interested therein may appeal from the said order and confirmation to the district court of the proper county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties, unless they shall waive the same, shall be entitled to a trial by jury as in ordinary cases. Upon such trial on appeal if the party taking the appeal does not secure in his favor a more beneficial valuation of the said property than was fixed by the report of the said commissioners, then the party taking such appeal shall pay all costs that may accrue on account of the appeal.

Sec. 9. For the purposes of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the notice, and its actual value at that date, shall be the measure of compensation of all property to be actually taken, and also the basis of damages to property not actually taken but injuriously affected, and in all cases where such damages are legally recoverable. If an order be made letting the plaintiff into possession as provided in this act, the compensation and damages awarded shall draw lawful interest from the date of such order. No improvements put upon the property, subsequent to the date of the service of notice or put thereon after the actual taking of the land, shall be included in the assessment of compensation or damages.

Sec. 10. No telephone or telegraph company shall, by virtue of this article, be authorized to enter or appropriate any dwelling, barn, store, warehouse, or similar building, erected for any commercial, agricultural or manufacturing purposes, or to erect poles so near thereto as materially to inconvenience the owner in their use or to occasion injury thereto.

Sec. 11. In case property is to be, will be, or has been by any corporation damaged for public use, any person interested may have such damages ascertained. The proceedings for ascertaining and paying such damages shall be the same as are and may be provided by law for assessing damages which owners of land may sustain in consequence of its appropriation for railroad purposes.

Sec. 12. In case the lands sought to be appropriated are held by any corporation, the right to appropriate the same by a railroad, telephone or telegraph company shall be limited to such use as shall not materially interfere with the uses to which, by law, the corporation holding the same is authorized to use the same. Where no agreement can be made between the parties, the mode of assessing the damages provided heretofore, as to private persons, shall be adopted; and if the lands to be appropriated lie in more than one county, an application may be made in any one county in which any of the lands lie, and the damages shall be assessed as to all the lands of the defendant corporation along the whole line in one proceeding.

Sec. 13. The court shall have power:

1. To regulate and determine the place and manner of making connections and crossings, or of enjoying the common use mentioned in the foregoing section;

2. To hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the damages therefor;

To determine the respective rights of different parties seeking condemnation of the same property.

Sec. 14. In case lands sought to be appropriated by any railroad company in this territory for depot purposes belong to private persons, and such company and the owner cannot agree upon the compensation to be paid, or in case the owner is incapable of contracting, unknown or non-resident of the territory, such company may have such lands condemned in the manner that is provided in this article for assessing damages which the owners of lands may severally sustain in consequence of the erection, establishment and maintenance of railroads over such lands.

Sec. 15. In addition to the purposes hereinbefore specifically mentioned for which property may be condemned under the provisions of this act, it may also be condemned for public buildings and grounds for the use of the territory, public buildings and grounds for the use of any county, incorporated city or city and county, village, town or school district; and for canals, aqueducts, reservoirs, tunnels, flumes, ditches or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, city and county, village or town, or for draining any county, incorporated city or city and county, village or town; raising the banks of streams, removing obstructions therefrom, roads, streets and alleys; public parks, and all other public uses for the benefit of any county, incorporated city or city and county, village or town, or the inhabitants thereof, which may be authorized by law; also for ferries, bridges, public roads, electric and horse railroads, or other roads for other vehicles for public use, for canals, ditches, flumes, aqueducts and pipes, for irrigation. Also for electric lines to conduct electricity for power, heat and lighting purposes.

Sec. 16. If the title attempted to be acquired is found to be defective from any cause the plaintiff may institute proceedings to acquire the same, as in this title prescribed.

Sec. 17. Payment may be made upon assessments under this act to the defendants entitled thereto, or the money may be deposited in the court for the defendants, as hereinbefore provided, to be distributed to those entitled thereto. If the money be not so paid or deposited the defendants may have execution as in civil cases, and if the money cannot be made upon execution, the court upon a showing, to that effect, must set aside and annul the entire proceedings, and restore possession of the property to the defendant, if possession has been taken by the plaintiff.

Sec. 18. At any time after the report of the commissioners and

approval of the same, and pending any appeal to the district court, and the plaintiff shall have paid into the court for the defendants the full amount of the appraised value of said property, if already in possession, may continue therein, and if not, then the plaintiff may take possession of and use the property during the pendency of and until the final conclusion of the litigation, and if necessary, all actions and proceedings against the plaintiff on account thereof may be staid, and for the purpose of enforcing the provisions of this section, the court is hereby authorized and empowered to make all orders which it may deem necessary to protect the interests of all parties in said litigation, requiring bond or other indemnity or security. And in all cases where it is necessary to secure service upon the defendants, or any of them by publication, the court may, upon the plaintiff giving bond at the time the petition is presented in such sum as the court may fix, make an order authorizing the plaintiff to at once enter into the possession of the property.

In all cases where land is authorized to be taken for public uses under the provisions of this act, any body-corporate or county or corporation authorized to exercise the right of eminent domain. under the provisions of this act, may enter upon the land and make examinations, surveys and maps thereof, and such entry shall constitute no cause of action in favor of the owner of the land, except for actual damage to crops or other property or for injuries resulting from negligence, wantonness or malice, or by any reason whatsoever caused on account of such entry so made.

Sec. 19. Whenever any part of a tract of land confirmed by special act of congress or by a decree of the court of private land claims as a Spanish or Mexican land grant, is sought to be condemned for any of the purposes provided for under the provisions of this act, such condemnation proceedings may be conducted by making the unknown owners and also the person to whom said grant was confirmed parties defendant, designating and describing them as they were designated and described in the act or decree of confirmation, and designating the heirs and successors of the said confirmees "as heirs and successors in title of said confirmees," and giving the name of such grant. And the commissioners appointed to appraise the portions of said tracts to be taken shall report specially, describing the same, all parts of said grant so proposed to be taken, found by them to be in exclusive possession of any person or persons, corporation or corporations, whether held as the result of partition proceedings or adverse possession, together with the value of such portions of said grant, and the improvements thereon af