petent tribunal or against which a final judgment of ouster shall have been entered; And Provided, further, That the provisions of this Act shall not affect the rights or interests of railroad companies over such railroads as have been opened and put in operation by said companies.

3979. Amendment or repeal. 4. This Act may be amended or repealed at the discretion of the Legislature.

3980. What is abandonment. 1. Any railroad company, organized under a special charter, or under the general law of this State for the construction of railroads, whose line is wholly within this State or partly within this State and partly in another State, which shall fail to keep up the directory of its road and expend at least the sum of fifty thousand dollars upon the line of such road in this State within any period of two years from the taking effect of this Act; or where any railroad company, so organized as aforesaid, shall have heretofore located the line of its road in this State, and has afterward adopted another and different line and route thereof in this State, then, in either of the above cases, such railroad company shall be taken and held to have abandoned such road, or so much of the line thereof in this State as has been abandoned by so selecting and adopting another and different line; and such company is hereby declared to have forfeited all its rights, privileges, and franchises in such road or part thereof. d: 3981. Other company may complete Appraisement. 2. Any company that now is or that may be organized under the general laws of this State providing for the incorporation of railroad companies, may complete any such abandoned road or part thereof, and shall, for such purpose, be invested with all the rights, privileges, interests, rights-of-way, franchises, properties, and immunities of such derelict railroad company, and shall proceed to construct the same, as is hereafter provided: Provided, however, That before any such new company shall succeed to said rights, privileges, interests, rights-of-way, franchises, properties, and immunities, and before it shall proceed to complete such road or part of such road, the value of the same shall be ascertained by three disinterested freeholders, resident in any county through which the line of such road may run, one of whom shall be selected by said new company, and one by the old company; or the assignee or purchaser of the franchises thereof, and the other by the Auditor of such county, and these three shall constitute a board of appraisers; and in the event that the said old company, or the assignee or purchaser of the franchises thereof, shall fail or refuse, upon request, to name such appraiser, then he shall be named by the said Auditor. Such board of appraisers shall take an oath to faithfully discharge their duties, and make a true and impartial appraisement of such rights, privileges, interests, rights-of-way, franchises, properties, and immunities. Such board shall report their appraisement to said Auditor, and, upon the payment of the same by such new company to the Treasurer of such county, it shall succeed to and be

invested as aforesaid: Provided, That nothing in this Act' shall authorize or permit any railroad company which has constructed and is operating its road, to change its line of road from that now used and occupied so as to avoid any point named in its charter or articles of association.

[1867, p. 160. In force March 11, 1867.]

3982. Distribution of money. 3. The money so paid, as is provided in the preceding section, shall be held by such Treasurer in trust, for the payment, firstly, of the debts of such old company; and, secondly, the balance, if any, shall be equitably distributed among the stockholders thereof.. 3983. Pay of appraisers. 4. The said appraisers shall receive for their services five dollars per day for the time by them employed, to be paid by said Treasurer out of the amount of said assessment.

3984. When road deemed abandoned. 5. Any such railroad company whose road is incomplete, which shall fail to complete the same, or which shall fail to expend at least twenty-five thousand dollars toward the completion thereof, in each year, shall be taken and held to come within the purview of this Act.

1. See section 3980.

3985. Annual statement. 6. Each railroad company in this State, or whose road runs into this State, shall, on the fifteenth day of January of each year, file with the Auditor of State a statement, in writing, verified by the affidavit of the treasurer of such company, showing the gross receipts of such company; the amount paid to each officer; the gross amount paid to other employés; the amount paid for rolling-stock; the amount paid for the actual construction of such road (itemizing the amount paid for earthwork, bridges, iron, ties, culverts, and all other items of such construction); and also the amount of the capital-stock of such company, the assets thereof, and the rate of dividends to the stockholders, and also, any and all other expenses of such company.

3986. Completion of roads sold. 7. Whenever any railroad company coming within the provisions of this Act shall sell or transfer its property, rights, or franchises to any other railroad company, it shall be the duty of such last-named railroad company to complete the road so transferred to it, and put the same in complete running order, within three years after the time of such transfer; and upon failure so to do, it shall be taken and held to have abandoned and forfeited the same; and any company organized, as provided in this Act, shall succeed to and be invested with the same, as is herein provided: Provided, however, That nothing in this Act contained shall be regarded as a recognition of the right of two or more railroad companies to consolidate, by voluntary agreement.

1. It shall be lawful for any

3987. Organization-Proceedings. owner or owners, or their lessees, of lands, mills, blast-furnaces, quarries, iron ore, coal mines, or other minerals or other real estate, or for any com

pany 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 railroad or railroads incorporated or to be incorporated in this State, and also with any 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.

NOTES TO CHAPTER 37.

CORPORATIONS-RAILROADS-ORGANIZATION.

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. v. Center 107-441.

Tp,

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; Holman 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 unlawfully antedated them is not ground for an information quo warranto; State v. Foulkes, 94496.

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 corporation and the stockholder. No notice or demand for the payment of an assessment is necessary, except where forfeiture of the stock is sought to be enforced; Hill. Nisbett, 100-356.

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 itself; L. E. & St. L. R'y Co. 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 v. State, 91-829.

3903. General powers. A rail road company has 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 v. 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 . T. Haute etc. Co., 107434.

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 from a board of county commissioners; Ind'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