Crossing railroads, or highways.

May take and use lands, &c.

track, as may be most expedient; and in cases where an embankment, or cutting, shall make a change in the line of such railroad, or highway, desirable, with a view to a more easy ascent, or descent, the said company may take such additional lands and materials, if needed, for the construction of such road, or highway, on such new line, as may be deemed requisite by said directors. Unless the lands and materials so taken shall be purchased, or voluntarily given, for the purposes aforesaid, compensation therefor shall be ascertained, in the manner in this act provided, as nearly as may be, and duly made by such corporation to the owners and persons interested in such lands; and the same, when so taken, and compensation made, to become part of such interCompensation. secting road, or highway, in such manner and by such terms, as the adjacent parts of such highway may be held for highway purposes.

Right of way granted.

of way.

Depots, &c.

Proviso.

845. SEO. 20. The right of way is hereby given and granted to all railroad companies that are now organized, or may be organized, under the provisions of this act, to locate, construct and maintain, their roads, or any part, or parcel thereof, over and through any of the swamp, or overflowed, lands belonging to this State, or any other public lands which are now, or may be, the property of this State, at the time Width of right of constructing said railroad; and the said railroad companies are hereby authorized to survey and mark through the said lands of the State, to be held by them for the track of their respective railroads, one hundred feet in width for the whole length the said roads may be located over the lands of the State; and in cases where deep excavations, or heavy embankments, or other cuttings, or structures, whatever, or ditches, drains, canals, culverts, or other structure, to protect the road-bed, and to facilitate the use and enjoyment of the same, is, or may be, required for the grade, or other uses, of said roads, then at such places a greater width may be taken by such company, and which is hereby given, not exceeding two hundred feet wide. And the right is hereby further given and granted to said companies to locate, occupy, and hold, all necessary sites and grounds for watering places, depots, or other buildings, for the convenient use of the same, along the line of the said road, or roads, so far as the places convenient for the same may fall upon the lands belonging to the State, except within the limits of any incorporated city, or town, or within three miles thereof, where the same shall be taken, on paying to the State the value of the same; and, provided, that no one depot, watering place, machine, or work, shop, or other buildings, for the convenient use of such roads, shall cover over two square acres each, and that said sites, or places, on the lands of this State, shall not be nearer to each other than five miles, along the lines of said roads; the right is hereby further given and granted to said companies to take from any of the lands belonging to this State all such materials of earth, wood, stone, or other materials whatever, as may be necessary, or convenient, from time to time, for the first construction, or equipment, of said road, or roads, or any part thereof; provided, that the grants herein made, as well of the use of the land of this State as for the materials for the construction and equipment of said road, or roads, shall cease and determine as respects each particular road which shall not have been begun and completed within the times limited in section thirty-nine of this act; and provided further, that if any road, at any time after its location, shall be discontinued, or abandoned, by said company, or companies, or the location of any part thereof be so changed as not to cover the lands of the State thus previously occupied, then the lands so abandoned, or left, shall revert to this State; and, provided further, that when the location of the route of either of said railroads, or sites, or places for depots, watering places, machine or work shops, or other buildings, for the convenient use of the same, shall be selected, the secretary of the said company shall transmit to the surveyor general, and to the controller of this State, and to the recorder of the county in which the lands so selected are situated, to each of said officers a correct plat of the location of said railroad, or sites, or places, before such selection shall become operative. And when any such company shall, for its purposes aforesaid, require any of the land belonging to any of the counties, cities, or towns, in this State, the county, city, and town, officers, respectively, having charge of such lands, may grant and convey such lands to such company, for a compensation which shall be agreed upon between them, or may donate and convey the same without any compensation; and if they shall not agree upon the sale and price, the same may be taken by the company, as is provided in other cases of taking lands by the provisions of this act.

Proviso.

Proviso.

Proviso,

Conveyence of land, &c., by cities,

Cities may make grants.

846. SEC. 21. Any county, city, or town, in this State, shall have, and are hereby fully empowered, by and through a two-thirds vote of the board of supervisors, the common council, or any other officers having a supervisory, or other, control of such county, city, or towns, respectively, to give, grant, or donate, to any railroad com

pany now organized, or that may be hereafter organized, under the laws of this State,
the use of any of the streets, or highways, which may be absolutely necessary in order
to enable any such company to reach an accessible point for a depot in any such county,
city and county, city, or town, or to pass through the same on as direct a route as
possible and accommodate the traveling and commercial interests thereof; provided, Proviso.
however, the provisions of this section shall not apply to any street railroad now con-
structed, or hereafter to be constructed, in any of the incorporated cities of this State;
nor shall any railroad company who may avail themselves of the provisions of this
section, ever use their road for street railroad purposes, or for the purpose of carrying
passengers, for a consideration, from one point to another, in the same city; nor shall
any city, or town, donate any public square, or any land set apart, or public square,
to the use of any one company: And, provided, further, that nothing in this section Proviso.
contained, shall be deemed to apply to the City of Sacramento within the corporate
limits thereof.

847. SEC. 22. Any railroad company, organized under the provisions of this act, Surveys. or any railroad company now organized under any law of this State, which shall accept the provisions of this act, as herein provided, is hereby authorized to enter upon any land for the purpose of surveying the line of its proposed railroad, the company being responsible for any damage occasioned by such entry; and such company is also authorized to acquire, purchase, and hold, any real estate, or any right, title, or interest, therein, which may be necessary, or proper, for the purpose of the construction, or maintenance of the track, or tracks, water-stations, depots, machine, or work, shops, turn-tables, or any other building, or structure, necessary for such railroad; but such company shall not hold such real estate, or any right, title, or interest therein, acquired, or used solely, or mainly, for the construction, or maintenance, of General rights and powers. the track, or tracks of said railroad, beyond the time of the legal existence of said company, nor after the location of the said track, or tracks, has been changed therefrom, nor after the said company shall have failed, or ceased, to use the same, for the maintenance of such track, for the space of five years continuously; but in each of such cases, the said real estate, and all the right, title, and interest, therein, shall revert to the person, or persons, and his, or their, assigns, from whom the same was acquired by said company.

idiots, &c.

848. SEC. 23. If it shall become necessary, for any of the purposes aforesaid, for Property of such company to acquire any real estate, or any right, title, or interest therein, which minors, is the property of any infant, idiot, or insane person, the guardian, executor, or administrator, as the case may be, may sell and convey the same to said company, but neither such sale nor conveyance shall be valid, for any purpose, until the same shall have been approved by the judge of the proper probate court; and said judge is Sales of, to be hereby authorized to examine such deeds and conveyances, and if he shall deem the approved by probate judge. same just and proper, he shall approve the same, and thereupon such conveyances shall have the same force and effect for the purposes in this section mentioned, as if the same had been executed by persons competent to convey lands in their own names. Such company may acquire any real estate, or any right, title, interest, estate, or claim therein or thereto, necessary for the purposes of said company, as herein before provided, by means of the special proceedings prescribed in this act.(") [Amendment, approved April 27, 1863, 610; took effect from passage.

real estate.

849. SEC. 24. Said special proceedings shall be conducted substantially as follows: Special proceeding to acquire -The said company shall file in the clerk's office of the county court, or the district court, in the county in which said real estate is situated, a petition, verified according Petition. to law, stating therein the name of the company, the time when it was incorporated, that it still continues in legal existence, the principal termini of the proposed railroad, the descriptions, by metes and bounds, or by some accurate designation of the tract, or tracts, of land, which said company desire to appropriate, for the purposes in the foregoing section mentioned; that said tract, or tracts, of land, are necessary for said purposes, that the line of said railroad has been surveyed, and a map thereof made (a copy of which shall be filed with said petition), that said line has been adopted as the route of said railroad, and the names of the persons in possession of said tract, or tracts, of land, and of those claiming any right, title, or interest therein, as far as the same can be ascertained by reasonable diligence.

(") The original section was substantially the same as the amendment with the exception that the last sentence, commencing, such company may acquire," read as follows:

If such company cannot contract for the purchase of any real estate, or any right, title, or interest therein, necessary for any

of the purposes aforesaid, from the person, or persons, owning the same, then such company may acquire the same, for the purposes in this section expressed, by incans of the special proceedings prescribed in this act.

Rights of
defendants.

Hearing of
petition.

To notify
owners.

Publication of
notice.

Defendants may
appear.

850. SEC. 25. The persons in occupation of said tract, or tracts, of land, and those having any right, title, or interest, therein, whether named in the petition, or not, shall be defendants thereto, and may appear and show cause against the same, and may appear and be heard, before the commissioners herein provided for, and in proceedings subsequent thereto, in the same manner as if they had appeared and answered said petition.

851. SEC. 26. The said court, or the judge thereof, either in term time, or vacation, shall, by order, appoint the time for the hearing of said petition, and such hearing may be had, and all orders in said proceedings may be made, by the said court, or the judge thereof, either in term time, or vacation.

852. SEC. 27. The said company shall cause all the occupants and owners of said tract, or tracts, of land, so far as the same can be ascertained by reasonable diligence, who reside in said county, to be personally notified of the pendency of said petition, at least ten days before the hearing thereof, and if any of said occupants, or owners, are unknown, or do not reside in said county, and have not been personally notified of the pendency of said petition, said company shall cause a notice, stating the filing of said petition, the object thereof, the tracts of land sought to be appropriated, and the time and the place of the hearing of said petition, to be published for four successive weeks previous to the time of hearing of said petition, in a newspaper published in said county, or if none is published in said county, then in a newspaper published nearest to said county.

853. SEC. 28. The defendants to said petition may appear and show cause against said petition, on or before the time for the hearing thereof, or such other time as the hearing may be continued to, and upon satisfactory proof being made that the defendants have been duly notified of the pendency of said petition, as herein prescribed, and upon the hearing of the allegations and proofs of the said parties, if the said court, or judge, shall be satisfied that the said lands, or any part thereof, are necessary, or proper, for any of the purposes mentioned in said petition, then such court, or To appoint judge, shall appoint three competent and disinterested persons as commissioners, one commissioners, of whom shall be selected from among the persons, if any, named for that purpose, by said company, and one shall be selected from among the persons, if any, named on the part of any of the defendants, to ascertain and assess the compensation to be paid to the person, or persons, having, or holding, any right, title, or interest, in, or to, each of said tracts of land, for and in consideration of the appropriation of such land to the use of said company. If any vacancy occur among said commissioners, by reason of any one, or more, of them refusing, or neglecting, to act, or by any other means, one, or more, commissioners may be appointed by said court, or judge, to fill such vacancy, upon notice being given of such vacancy, as the said court, or judge, may direct.

Vacancy.

Meeting of
commissioners.

Powers and
duties of.

Duty of commis-
sioners as to

Owners.

854. SEC. 29. The said court, or judge, shall appoint the time and place for the first meeting of said commissioners, and the time for the filing of their report, and may give such further time as may be necessary for that purpose, if they shall not have then completed their duties. The said commissioners, or a majority of them, shall meet at the time and place as ordered, and before entering on their duties shall be duly sworn to honestly, faithfully, and impartially, perform the duties imposed upon them; and any one of them may issue subpoenas for witnesses for either of said parties, and may administer oaths; and said commissioners may adjourn from place to place, and from time to time, as may be necessary for the proper discharge of their duties. 855. SEC. 30. The said commissioners shall proceed to view the several tracts of damages to land land, as ordered by said court or judge, and shall hear the allegations and proofs of said parties, and shall ascertain and assess the compensation for the land sought to be appropriated, to be paid by said company to the person or persons having or holding any right, title, or interest in or to each of the several tracts of land; and in ascertaining and assessing such compensation, they shall take into consideration and make allowance for any benefit or advantages that, in their opinion, will accrue to such per son or persons by reason of the construction of the railroad as proposed by said company; and if the said railroad company shall in their petition filed in said special proceedings, offer or agree to make good and sufficient fences on the line of their said railroad, or any portion thereof, or to make good and sufficient cattle guards where fences may cross said line of railroad, at such places and at such times as the same may be necessary, no sum or price for such fences shall be included in the compensation or damages to be awarded by said commissioners; but such railroad company shall not be required to construct fences on the line of their railroad where the same

March 30th 1848 Amended,

8rch 1897-8/705

134

passes through uninclosed tracts of land, nor until inclosures shall be made abutting upon the property of such company; and said commissioners shall, on or before the time or times as ordered by said court or judge, file in the said clerk's office their report, signed by them, setting forth their proceedings in the premises, and they may include all of said tracts in one report, or they may make several reports, including one or more of said tracts of land, if the court or judge shall so order, or if they shall deem it proper. In case there are adverse or conflicting claims to the compensation assessed for any tract of land, or any right, title, or interest therein, thus sought to be appropriated, the parties thus asserting such claims shall present the same, by petition, to the court or judge after the report of the commissioners shall have been filed, and said court or judge shall proceed to hear and determine the same; and in such case said company may pay the amount of such compensation to the clerk of said court, to abide the order of the court or judge in said proceedings, and said company shall not be liable for any of the costs caused by the adjudication of such conflicting claims.() [Amendment, approved April 27, 1863, 610; took effect from passage.

856. SEC. 31. The said company, or any of said defendants, if dissatisfied with the New trial. report, may, within twenty days after the time for the filing of said report, and after ten days' notice to the parties interested, move to set aside the report and to have a new trial as to any tract of land; and upon good cause shown therefor, the said court, or judge, shall set aside the report as to such tract of land, and may recommit the matter to the same, or to other commissioners, who shall be ordered to proceed in like manner as those first appointed; but such matter shall not be more than twice recommitted to commissioners.

857. SEC. 32. Upon the expiration of twenty days after the filing of said report, or Confirmation of reports, or at such further time as may be appointed therefor, if the motion and notice reports. shall not have been made and given, as aforesaid, and if the proceedings of said commissioners appear to have been correctly and properly done, the said court, or judge shall confirm each of said reports, and certify the same thereon.

reports.

858. SEC. 33. Each of said reports and the certificates thereon, upon the compensa- Record of tion therein named being paid, shall be recorded in the recorder's office of said county, by said company. The said court, or judge, may make all such orders as may be necessary or proper, in the special proceedings provided for in this act, and shall cause the pleadings and proceedings to be amended whenever justice shall require it to be done, and shall direct the manner of the service of all orders and notices not herein specially provided for. Costs in such special proceedings shall be taxed by the clerk, Costs. at the rates prescribed in the fee bill for said county, in civil actions, and shall be paid by said company, except in case where a defendant shall move for a new trial, and the compensation assessed by the commissioners shall not be increased more than ten per cent. upon the previous assessment, in which case such defendant shall pay the cost. 859. SEC. 34. If the title attempted to be acquired by virtue of the provisions of this Defective titles. act shall be found to be defective from any cause, such company may again institute proceedings to acquire the same, as in this act prescribed; and at any stage of such new proceedings, or of any proceedings under this act, the court, or judge in chambers, may, by a rule or order in that behalf made, authorize such company, if already in possession, to continue in the use and possession; and if not in possession, to take possession of and use such premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company shall pay a sufficient sum into Proviso. court, or give security, to be approved by such court, or judge, to pay the compensation in that behalf when ascertained. (') [Amendment, approved April 27, 1863, 610; took effect from passage.

860. SEC. 35. Upon the report of the commissioners being filed for record, as above Passage of title provided for, and upon the payment, or tender, of the compensation and costs, as to company. prescribed in this act, the real estate, or the right, title, or interest therein described in such report, shall be, and become, the property of said company, for the purposes of its incorporation, and shall be deemed to be acquired for, and appropriated to, public use.

Payment or

861. SEC. 36. Such company shall, within thirty days after the final confirmation tender.

(") The original section was the same as the amendment down to and including the words "by reason of the construction of the railroad so proposed by said company." It then proceeded as follows: and they shall on, or before, the time, or times, as ordered by said court, or judge, file in the said clerk's office their report signed by them, setting forth their proceedings in the pre.nises; and they may include all of said tracts in one report,

or they may make several reports, including one or more of said tracts of land, if the court, or judge, shall so order, or if they shall deem it proper.

() The original section consisted only of the first clause of the section as amended down to and including the words "as in this act prescribed."

Court to order payment.

Definition of "person."

Duties of clerk.

Companies may consolidate.

Publication of notice.

of the report as aforesaid, pay, or tender, the sum of money ascertained and assessed by said commissioners as, and for, the compensation of each tract of land described in said report, of which the compensation was ordered, by said court, or judge, to be ascertained and assessed as aforesaid; and said payment, or tender, may be made to the person or persons, owning said tract of land, or having, or holding, any right, title, or interest therein, according to the amount, or extent of the right, title, or interest, owned, or held, therein, by such person, or persons, or said payment may be made to the said clerk for said persons, and the same shall be deemed and taken as a payment to such person, or persons, and shall be as effectual for all purposes whatsoever as if the said sum of money had been personally paid to each and all of the persons entitled thereto.

862. SEC. 37. The said court, or judge, shall at the time of the payment of the said sum of money to the said clerk, or at such other time, or times, as may be ordered, direct and order the same to be paid over to the person, or persons, who shall, upon satisfactory proof, appear to be entitled thereto.

863. SEC. 38. In all the proceedings in relation to the sale or appropriation, of real estate, and ascertaining and receiving the compensation therefor, for railroad purposes, as prescribed in this act, the term "person" shall be deemed to include municipal, or other corporations.

864. SEC. 39. The minutes of the proceedings, had before such jndge, shall be entered by said clerk, in the same manner, and with the same force and effect, as if the proceedings were had before said court in term time.

865. SEO. 40. It shall be lawful for two, or more, railroad companies to amalgamate and consolidate their capital stock, debts, property, assets, and franchises, in such manner as may be agreed upon by the board of directors of such companies so desiring to amalgamate and consolidate their interests; but no such amalgamation, or consolidation, shall take place, without the written consent of three-fourths of the value of all stockholders in interest of each company, and no such amalgamation, or consolidation, shall, in any way, relieve such companies, or the stockholders thereof, from any and all just liabilities; and in case of such amalgamation, or consolidation, due notice of the same shall be given, by advertising, for one month, in at least one newspaper in each county, if there shall be one published therein, into, or through, which such roads shall run, and also for the same length of time, in one paper published in Sacramento, and in two papers published in San Francisco, and when the consolidation and amalCopy to be filed. gamation is completed, a copy of the new articles of association shall be filed in the office of the secretary of State. It shall be the duty of the railroad company to make and maintain a good and sufficient fence on either, or both, sides of their property; and in case any company do not make, and maintain such fence, if their engine, or cars, shall kill, maim, or destroy, any cattle, or other domestic animals, when they stray upon their line of road, where it passes through, or alongside of, the property To pay damages. of the owners thereof, they shall pay to the owner, or owners, of such cattle, or other domestic animals, a fair market price for the same, unless the owner, or owners, of the animal, or animals, so killed, maimed, or destroyed, shall be negligent, or at fault. In any case where the railroad company have heretofore, or may hereafter, pay to the owner, or owners, of the land through which, or alongside of which, their road is, or may be, located, an agreed price for making and maintaining such fence, or whenever the cost of such fence has been, or may be included in the award of damages allowed and paid for the right of way for such railroad, such company shall be entirely relieved and exonerated from all claims, or awards, of damages arising out of the killing, or maiming. any animals as aforesaid, in favor of all persons, or their successors, or Company may assigns, who shall thus fail to construct and maintain such fence. And the owner, or owners, of such animals, shall become responsible to the railroad company for any damage, or loss, which may accrue to such company, from such animals being upon their railroad track, by reason of the non-construction of such fence by said owner, unless it can be proven that such loss or damage, accrued by reason of the negligence of such company, its officers, agents, or employees.

Not liable in certain cases.

recover damages.

866. SEC. 41. A bell, of at least twenty pounds' weight, shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any street, road, or highway, and be kept ringing until it shall have crossed such street, road, or highway, under a penalty of one hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to the State; and said corporation