papers. of the arbitration; and after making their award the CHAP. 99. arbitrators shall forthwith deliver or transmit by Transmission of registered letter, at the request of either party in writing, the depositions, together with the exhibits referred to therein, and all papers connected with the reference, except the award, to the prothonotary of the Supreme court for the county in which the lands are situated, to be filed with the records of such court. R. S., c. 53, s. 9, (19.) R. A., s. 155. to be made. 150. A majority of the arbitrators, at the first meeting Time within after their appointment, or the sole arbitrator, shall fix a which award is day on or before which the award shall be made; and if the same is not made on or before such day, or some other day to which the time for making it has been prolonged, either by the consent of the parties or by resolution of the arbitrators, then the sum offered by the company, as aforesaid, shall be the compensation to be paid by the company. R S., c. 53, s. 9, (20.) R. A., s. 155. tor, how filled. 151. If the sole arbitrator appointed by the judge, or vacancy in the any arbitrator appointed by the two arbitrators, dies before office of arbitra the award has been made, or is disqualified, or refuses or fails to act within a reasonable time, then, in the case of the sole arbitrator, the judge, upon the application of either party, and upon being satisfied by affidavit or otherwise of such death, disqualification, refusal or failure, may appoint another arbitrator in the place of such sole arbitrator; and in the case of any arbitrator appointed by one of the parties, the company and party respectively may each appoint an arbitrator in the place of its or his arbitrator so deceased or not acting; and in the case of the third arbitrator appointed by the two arbitrators, the two remaining arbitrators shall appoint an arbitrator in his place, or if they cannot agree, a judge shall on the application of the party or the company, after notice of at least six clear days has been given to the other party, appoint such arbitrator; but no recommencement or repetition of the previous proceedings shall be No re-comrequired in any case. R. S., c. 53, s. 9, (21.) R. A., s. 157. proceedings. 152. In any case where a notice has been given improperly, but which describes the land or material intended desist on payto be taken, or if the company decides not to take the land or material mentioned in the notice, the company may abandon such notice and all proceedings thereunder, but shall be liable to the person notified for all damages or costs incurred by him in consequence of such notice and abandonment-such costs to be taxed in the same manner as costs after an award; and the company may give to the same or New notice may any other person notice for other land or material or for land or material otherwise described, notwithstanding the abandonment of the former notice. R.S., c. 53, s. 9, (22.) R.A., s. 158. mencement of Company may ment of costs. be given. CHAP. 99. Valuator or 153. The person offered or appointed as valuator, or as sole arbitrator, shall not be disqualified because he is professionally employed by either party, or has previously unless personally expressed an opinion as to the amount of compensation, or arbitrator not disqualified interested. When disqualifi cation must be urged. Payment of compensation Into court in certain cases. Notice to be published. because he is related or of kin to any shareholder of the company, if he is not himself personally interested in the amount of the compensation; and no cause of disqualification shall be urged against any arbitrator appointed by the judge after his appointment, but the objection shall be made before the appointment, and its validity or invalidity shall be summarily determined by the judge. R. S., c. 53, s. 9, (23.) R. A., s. 159. 154. No cause of disqualification shall be urged against any arbitrator appointed by the company or by the opposite party after the appointment of a third arbitrator: and the validity or invalidity of any cause of disqualification urged against any such arbitrator, before the appointment of a third arbitrator, shall be summarily determined by the judge, on the application of either party, after two clear days' notice to the other, and if the cause is determined to be valid the appointment shall be null and void, and the party offering the person so adjudged to be disqualified shall be held not to have appointed an arbitrator. R. S., c. 53, s. 9, (24.) R. A., s. 160 155. If the company has reason to fear any claims or incumbrances, or if any person to whom the compensation or annual rent, or any part thereof, is payable, refuses to execute the proper conveyance and guarantee, or if the person entitled to claim the same cannot be found, or is unknown to the company, or if, for any other reason, the company deems it advisable, the company may pay such compensation into the office of the prothonotary of the court, with the interest thereon for six months, and may deliver to such prothonotary an authentic copy of the conveyance, or of the award or agreement, if there is no conveyance; and such award or agreement shall thereafter be deemed to be the title of the company to the land therein mentioned. R. S., c. 53, s. 9, (29). R. A., s. 167. 156. A notice in such form and for such time as the court appoints, shall be inserted in a newspaper, if there is any, published in the county in which the lands are situated, or if there is no newspaper published in the county, then in the Royal Gazette, and also in a newspaper circulating in such county, which shall state that the title of the company, that is, the conveyance, agreement or award, is under this Chapter, and shall call upon all persons entitled to the lands, or to any part thereof, or representing or being the husbands of any persons so entitled, to file their upon. claims to the compensation, or any part thereof; and all such CHAP. 99. claims shall be received and adjudicated upon by the court, Claims to be and the said proceedings shall forever bar all claims to the adjudicated lands or any part thereof, including dower, as well as all mortgages or incumbrances upon the same; and the court Distribution of shall make such order for the distribution, payment or compensation. investment of the compensation, and for the securing of the rights of all persons interested, as to right and justice and to law appertains. R. S., c. 53, s. 9, (30). R. A., s. 168. 157. The costs of the proceedings, in whole or in part. Costs. including the proper allowance to witnesses, shall be paid by the company, or by any other person, as the court orders; and if such order of distribution is obtained in less than six months from the payment of the compensation into court, the court shall direct a proportionate part of the interest to be returned to the company, and if from any error, fault, or neglect of the company, it is not obtained until after the six months have expired, the court shall order the company to pay to the proper claimants the interest for such further period as is right. R. S., c. 53, S. 9, (31). R. A., s. 169. Interest. avoided for 158.—(1.) No award shall be invalidated by reason of Award not any want of form or other technical objection, if the require- want of form. ments of this Chapter have been substantially complied with, and if the award states clearly the sum awarded, and the lands or other property, right or thing for which such sum is to be the compensation; and the person to whom the sum is to be paid need not be named in the award. Supreme Court. (2.) Whenever the award exceeds four hundred dollars, Appeal to any party to the arbitration may within one month after receiving a written notice from any one of the arbitrators or the sole arbitrator, as the case may be, of the making of the award, appeal therefrom upon any question of law or fact to the Supreme Court; and upon the hearing of the appeal the court shall, if the same is a question of fact, decide the same upon the evidence taken before the arbitrators, as in a case of original jurisdiction. proceedings (3.) Upon such appeal the practice and proceedings shall Practice and be as nearly as may be the saine as upon any other appeal in such case. to the said court, subject to any general rules or orders from time to time made by the judges of the said court in respect to such appeals, which orders may, amongst other things, provide that any such appeal may be heard and determined by a single judge. not affected. (4.) The right of appeal hereby given shall not affect the Other remedies existing law or practice as to setting aside awards. R. S., c. 53, s. 9, (25). R. A., s. 161. CHAP. 99. or tender of sum Warrant of possessio:. Warrant of award. 159. Upon payment or legal tender of the compensation or annual rent, so awarded or agreed upon, to the person entitled to receive the same, or upon the payment into court of the amount of such compensation, in the manner in this Chapter mentioned, the award or agreement shall vest in the company the power forthwith to take possession of the lands, or to exercise the right or to do the thing for which such compensation or annual rent has been awarded or agreed upon; and if any resistance or forcible opposition is made by any person to its so doing, the judge may, on proof to his satisfaction of such award or agreeinent, issue his warrant to the sheriff of the county, to put down such resistance or opposition, and to put the company in possession; and the sheriff shall take with him sufficient assistance for such purpose, and shall put down such resistance or opposition, and put the company in possession. R. S, c. 53, s. 9, (26). R. A., s. 162. 160. Such warrant may also be granted by the judge, possession before without such award or agreement, on affidavit to his satisfaction that the immediate possession of the lands, or of the power to do the thing mentioned in the notice, is necessary to carry on some part of the railway with which the company is ready forthwith to proceed. R. S., c. 53, s. 9, (27). R. A.. s. 163. On what conditions such granted. 161. The judge shall not grant any warrant under the warrant may be next preceding section unless ten days' previous notice of the time and place when and where the application for such warrant is to be made has been served upon the owner of the land or the person empowered to convey the land, or interested in the land sought to be taken, or which may suffer damage from the taking of materials sought to be taken, or the exercise of the powers sought to be exercised, or the doing of the thing sought to be done, by the company; and unless the company gives security to his satisfaction, by deposit in a chartered bank, designated by him, to the credit of the company and such person or party jointly, of a sum larger than his estimate of the probable compensation, and not less than fifty per centum above the amount mentioned in the notice served upon the party as in this Chapter provided. R. S., c. 53, s. 9, (27, b). R. A., s. 164. Security to be given. Costs. Payment on judge's order only. 162. The costs of any such application to, and of any such hearing before the judge, shall be borne by the company, unless the compensation awarded is not more than the company had offered to pay; and no part of such deposit or of any interest thereon shall be repaid, or paid to such company, or paid to such owner or party, without an order from the judge, which he may make in accordance with the terms of the award. R. S., c. 53, s. 9, (27, b). R. A., s. 165. to stand in the 163. The compensation for any lands which are CHAP. 99. taken without the consent of the proprietor, shall stand in Compensation the stead of such lands; and any claim to or incumbrance place of land. upon the said lands, or any portion thereof, shall, as against the company, be converted into a claim to the compensation or to a like proportion thereof; and the company shall be responsible accordingly, whenever it has paid such compensation, or any part thereof, to a person not entitled to receive the same, saving always its recourse against such person. R. S., c. 53, s. 9, (28). R. A., s. 166. compensation is pality. 164. If by the special Act the money payable in Procedure when respect of compensation for lands taken for tracks, station made a charge houses, machine shops and terminal facilities is made a upon municicharge upon any municipality through which the railway passes, it shall not be necessary for the company to treat with any owner of land in respect of such compensation or to serve any notice upon him-but such compensation shall be ascertained and awarded in the following manner: owners. (1.) As soon as the map or plan and book of reference or Meeting of profile have been filed and certified as in this Chapter provided, the warden of any municipality through which the railway passes and upon which such compensation has been made a charge by the special Act shall appoint a time and place within such municipality for the owners through whose lands the line of railway has been laid out to meet for the purpose of choosing an arbitrator for the purpose of ascertaining such compensation. Notice of the time and place of such meeting shall be given by hand bills posted in public places in the locality of the proposed line of railway, and by advertisement in at least one newspaper published in the county in which such municipality is situated, for at least two weeks before the day of meeting. Every such meeting shall be presided over by the warden of the municipality. arbitrator by (2) A majority of the owners present at any such Appointment of meeting shall appoint some person to be one of the arbitra- meeting. tors to determine such compensation, and the warden shall sign a certificate of such appointment, to be filed with the clerk of the municipality. municipal (3) The municipal council of the municipality shall at Appointment by its first meeting after such map or plan has been so filed council. and certified, appoint a person to be one of such arbitrators. of third (4.) The two persons so appointed shall appoint a person Appointment to be a third arbitrator, and if they are unable to agree arbitrator. upon any such person a judge may, upon the application of the warden of the municipality or the company or any one of the owners, appoint some person, being a resident within such municipality, to be such third arbitrator. |