may enter up

at any time to enter upon, take possession of, and use such lands not exceeding one hundred and thirty feet in width, along the line of said route, subject however, to the payment of such compensation as the company may have agreed to pay therefor, or such as shall be ascertained in the manner hereinafter directed and provided in such cases respectively. And said company are further Company authorized by their officers, engineers, agents and ser- on lands. vants, to enter upon lands adjacent to the railroad, beyond the limits of one hundred and thirty feet, in the manner provided in this act, when necessary for the purpose of erecting depot buildings, station houses and necessary fixtures for the operation and for the business of said road, and for the purpose of making drains and giving a proper direction to water-courses across or along said road when the same are necessary, beyond the limits of said road: and to remove all substances and things which might endanger, obstruct or interfere with the free use of said road, and to deposit earth, gravel or stone taken from cuts, and to obtain earth, gravel, stone and other materials for embankments and structures necessary to the construction and repairs of said road, doing however, no unnecessary damage; and all land so acquired, and all damages which Damages to be paid by comshall be done to any lands or property under the provi- pany. sions of this section, shall be ascertained and paid for in the manner and agreeably to the provisions hereinafter provided and when such damage shall have been paid for or tendered, the title to the land occupied by such railroad, fixtures, excavations and embankments shall vest in fee simple in said company. It shall be lawful for any judge of the supreme, circuit or county courts of this state, on application of the said company, either in term time or vacation, and at the cost of the said company, to appoint three disinterested persons residing in the county where such lands are situate, not of kin to the owner or owners there- How damages of, whose duty and charge it shall be to view and examine to be assessed. all the lands so taken in said county, with the buildings and improvements, if any, thercon, and to estimate the value of the land so taken or required by said company, and all damages which the owner or owners thereof shall sustain, or may have sustained, by reason of the taking of the same for the construction and use of said road, or works appertaining thereto, taking into consideration the advantages as well as the disadvantages of the same, by means of the construction and operation of the said road to the said owner or owners; and when said commis

sioners are so appointed, they shall act in all cases arising in said county requiring the action of commissioners, whenever said company shall be unable to agree with the owner or owners of said land; but if for any cause either or all of said commissioners shall become disqualified to serve, or their place or places become vacant, such vacancy or vacancies may be filled in the same manner that the Notice to be original appointment was made. And it shall be the duty given. of the said company to give two week's notice of their application to a judge of the supreme, circuit or county court, for the appointment of the said commissioners, to be published for two successive weeks in a newspaper published in the county in which said lands may be, or if no newspaper be printed in said county, then in a newspaper published in the city of Racine, and the affidavit of the publisher or printer, shall be legal evidence of such publication. And the persons so appointed, before entering upon the discharge of such duties, shall take an oath. before some justice of the peace or other person competent to administer oaths, faithfully and according to the best of their abilities, to examine the several pieces or parcels of land, so taken or required by said company, and impartially to estimate and appraise the value of the same, and the damage or injury which the owner or owners of each piece or parcel thereof shall have sustained or may sustain by reason of the taking and using thereof by the said company over and above the benefits and advantages which said owner or owners shall derive from the construction of such railroad. Whereupon, such commissioners shall proceed to examine the premises and estimate the value of such land, and the amount of damages, if any, over and above the benefits and advantages which may accrue to such owner or owners as aforesaid, and shall make a report in writing of such valuation under their hands and seals, to the clerk of the circuit court of the county where the land lies, and shall return the same within twenty days after making their appraisal to the clerk of the circuit court of the county in which the land lies; and it shall be the duty of said clerk to file the same, and in case no appeal shall be made within twenty days after the filing of the said reports as hereinafter provided, then the said clerk shall record the same at the expense of the said company, and judgment of the said court shall be entered thereon, either in term time or vacation, on motion of either party: Provided, that either party may appeal to the circuit court of the county in which said

Proviso.

land shall lie, within twenty days after said report shall have been filed in the clerk's office of said court, and such appeal shall be tried in the same manner as other issues are tried in said court, and the jury empanneled to try the same shall find the value of the land so taken or required by said company, and the damages which the owner or owners thereof shall have sustained or may sustain by the taking of the same, over and above the benefits which will accrue to such owner or owners from the construction of such railroad, and the judgment of the court shall be entered accordingly. Such appeal shall be taken by giving notice thereof to the clerk of the said court in writing, and thereupon the clerk shall enter the same upon the docket of said court, setting down the railroad company as defendant, and the said claimant or claimants as plaintiff: Provided, also, that it shall not be lawful for Proviso. the said commissioners or the said court to proceed in the assessment of damages or in the valuation of any lands or materials as aforesaid, in the absence of the owner or owners thereof, his, her, or their agents or attorneys, unless it shall be shown to them by competent testimony that the said owner or owners are absent from the state of Wisconsin, or that the said owner or owners have had at least five days notice, in writing, of the time and place at which such assessment or valuation was to be made; which notice shall be served personally on said owner or owners, or by leaving the same at their last or usual place of residence with some person of suitable age and discretion, and if the said owner or owners shall be minors, or non compos mentis, the service of the notice may be made on their guardian or trustee, if there be any, or in such manner as the court or judge appointing said commissioners shall direct; and if said owner or owners shall be non-resident or absent from the state, or his residence unknown, the service of the notice may be made by publishing the same in a newspaper in said county, for two successive weeks: Provided, also, that upon the making and filing of any report Proviso. as aforesaid and the payment or legal tender of the amount of any valuation or appraisal specified therein to the owner or owners of any such lands, his, her or their legal representatives, or the payment of the amount of such valuation or appraisal to the clerk of the court to which any appeal under this act may have been taken to abide the issue of such appeal, the said company, their agents or the contractors for making or repairing said railroad,. may immediately take and use the same without awaiting

Provisos.

Notices to be published in Racine.

Shall erect fence.

the issue of any appeal brought thereon. Whenever any judgment shall have been entered, as herein before provided for the value of any lands, or for any damages for the taking and using of the same, and the amount specified in such judgment shall have been paid or tendered to the owner or owners of such lands, his, her or their legal representatives, or the payment of the amount specified in such judgment or in such report of the commissioners to the clerk of the court to which any appeal under this act may have been taken, the said company shall be entitled to the easement of the same so long as it may be used as the track of said railroad; and if such valuation be not received when tendered, it may at any time thereafter be received or may be collected from said company, without interest, by action at law, at the cost and expense of the person or persons entitled to the same: Provided, such valuation shall not have been paid to the clerk of the court in which such appeal may have been taken; and Provided, that the costs of any proceedings and judgments specified in this act, shall be taxed by the court and paid by said company, except in cases where upon appeal the verdict of the jury shall be for the same or a less sum than that reported by the said commissioners.

SEC. 2. Section twelve of said act is hereby amended so as to read as follows: So much of the act to which this is amendatory as requires the publication of any notices by said company, to be made in a newspaper published at the capital of the state, or at Janesville, is hereby repealed, and all such notices shall hereafter be published in a newspaper published in the city of Racine.

SEC. 3. Section thirteen of said act is hereby amended so as to read as follows: The said company before opening their road through any enclosed grounds shall erect such fencing as shall preserve such enclosure entire, and shall, before they commence to use their road as a railroad, erect a good and sufficient fence on both sides of the said road, through all such enclosed ground, and shall maintain the same, and when land now unenclosed on the route of said road becomes enclosed for farming purposes, said company shall build and keep in repair a good and substantial fence through such lands: Provided, said company shall not be compelled to build such fence before their road is in operation.

SEC. 4. This act shall take effect from and after its publication.

Approved, January 30, 1854.

[Published Feb. 1, 1854.]

An Act to amend an act entitled an act to incorporate the Green Bay, Chap. 17. Milwaukee and Chicago Railroad Company; approved March 13, 1851.

The people of the State of Wisconsin, represented in Senate and Assembly, do enact as follows:

SECTION 1. Section eight of an act entitled an act to in- Amendatory corporate the Green Bay, Milwaukee and Chicago railroad section. company, approved March 13, 1851, is hereby amended so as to read as follows: It shall be lawful for said company, their officers, engineers and agents, to enter upon any land for the purpose of exploring, surveying and locating the route of said road, doing thereto no unnecessary damage; and when the said route shall be determined by the said company, it shall be lawful for them, their agents, officers, engineers, contractors and servants, at any time, to enter upon, take possession of, and use such lands not exceeding one hundred and thirty feet in width, along the line of said route, subject, however, to the payment of such compensation as the company may have agreed to pay therefor, or such as shall be ascertained in the manner hereinafter directed and provided in such cases respectively. And said company are further authorized by their officers, engineers, agents and servants to enter upon lands adjacent to the railroad, beyond the limits of cne hundred and thirty feet, in the manner provided in this act, when necessary for the purpose of erecting depot buildings, station houses and necessary fixtures for the operation and for the business of said road, and for the purpose of making drains and giving a proper direction to water courses across or along said road when the same are necessary, beyond the limits of said road; and to remove all substances and things which might endanger, obstruct or interfere with the free use of said road, and to deposit earth, gravel or stone taken from cuts, and to obtain earth, gravel, stone and other materials, for embankments and structures necessary to the construction and repairs of said road, doing, however, no unnecessary damage; and all land so acquired, and all damages which shall be done to any lands or property under the provisions of this section, shall be ascertained and paid for in the manner and agreeably to the provisions hereinafter provided; and when such damage shall have been paid for or tendered, the title to the land occupied by such railroad, fixtures, excavations and embankments shall vest in fee simple in said company. When said corporation cannot agree with the owner or owners of such required land for the purchase thereof, or as to the compensa