Same. Facts necessary to be found by Court before condemnation. Parties may make location. mentioned in Section 1238, and any and all structures and improvements thereon, and the lands held or used in connection therewith, shall be subject to be connected with, crossed, or intersected by any other right of way or improvements or structures thereon. They shall also be subject to a limited use, in common with the owner thereof, when necessary; but such uses, crossings, intersections, and connections shall be made in manner most compatible with the greatest public benefit and least private injury; 6. All classes of private property not enumerated may be taken for public use, when such taking is authorized by law. 1241.. Before property can be taken, it must appear: 1. That the use to which it is to be applied is a use authorized by law; 2. That the taking is necessary to such use; 3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. 1242. In all cases where land is required for public use, the State, or its agents in charge of such use, may survey and locate the same; but it must be located in the manner which will be most compatible with the greatest public good and the least private injury, May enter and subject to the provisions of Section 1247. The State, or its agents in charge of such public use, 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 owners of the land, except for injuries resulting from negligence, wantonness, or malice. to make surveys. Jurisdic tion in District Court. 1243. All proceedings under this Title must be brought in the District Court for the county in which the property is situated. They must be commenced by filing a complaint and issuing a summons thereon. 1244. The complaint must contain: 1. The name of the corporation, association, commission, or person in charge of the public use for which the property is sought, who must be styled plaintiffs;. 2. The names of all owners and claimants of the property, if known, or a statement that they are unknown, who must be styled defendants; 3. A statement of the right of the plaintiff; 4. If a right of way be sought, the complaint must show the location, general route, and termini, and must be accompanied with surveys and maps thereof; 5. A description of each piece of land sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract. All parcels lying in the county, and required for the same public use, may be included in the same, or separate proceedings, at the option of the plaintiff, but the Court may consolidate or separate them, to suit the convenience of parties. The complaint and its contents. what to contain. 1245. The Clerk must issue a summons, which Summons, must contain the names of the parties, a general description of the whole property, a statement of the public use for which it is sought, and a reference to the complaint for descriptions of the respective parcels, and a notice to the defendants to appear and show cause why the property described should not be condemned as prayed for in the complaint. In all How issued other particulars it must be in the form of a summons in civil actions, and must be served in like manner. 1246. 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 and served. Who may What the may show. defend. answer Court shall have jurisdiction to regulate the mode 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. 1247. The Court shall have power: 1. To regulate and determine the place and manner of making connections and crossings, or of enjoying of enjoying the common use mentioned in the fifth subdivision of of making crossings or a common use. Court or jury to assess damages. Section 1240; 2. To hear and determine all adverse or conflicting claims to the property sought to be condemned, and to the damages therefor; 3. To determine the respective rights of different parties seeking condemnation of the same property. 1248. The Court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess: 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed; 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff'; 3. Separately, how much the portion not sought to be condemned, and each estate or interest therein, will be benefited, if at all, by the construction of the improvement proposed by the plaintiff; and if the benefit shall be equal to the damages assessed, under Subdivision 2, the owner of the parcel shall be allowed no compensation except the value of the portion taken; Same. but if the benefit shall be less than the damages so assessed, the former shall be deducted from the latter, and the remainder shall be the only damages allowed in addition to the value; 4. If the property sought to be condemned be for a railroad, the cost of good and sufficient fences along the line of such railroad, and the cost of cattle guards where fences may cross the line of such railroad; 5. As far as practicable, compensation must be assessed for each source of damage separately. with respect to which com its pensation shall be assessed, measure thereof. 1249. For the purpose of assessing compensation The date and damages, the right thereto shall be deemed to have accrued at the date of the summons, and actual value, at that date, shall be the measure of and the compensation for all property to be actually taken, and the basis of damages to property not actually taken, but injuriously affected, in all cases where such damages are allowed, as provided in Section 1248. If an order be made letting the plaintiff into possession, as provided in Section 1254, 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 summons, shall be included in the assessment of compensation or damages. ceedings to cure defective 1250. If the title attempted to be acquired is New profound to be defective from any cause, the plaintiff may again institute proceedings to acquire the same, title. as in this Title prescribed. 1251. The plaintiff must, within thirty days after final judgment, pay the sum of money assessed; but may, at the time of or before payment, elect to build the fences and cattle guards; and if he so elect, shall execute to the defendant a bond, with sureties to be Payment of or deposit therefor. damages, of bond Damages, to whom paid. Final order of con what to contain. approved by the Court in double the assessed cost of the same, to build such fences and cattle guards within eighteen months from the time the railroad is built on the land taken, and if such bond be given, need not pay the cost of such fences and cattle guard. In an action on such bond the plaintiff may recover reasonable attorney's fees. 1252. Payment may be made to the defendants entitled thereto, or the money may be deposited in Court for the defendants, and 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 on 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. 1253. When payments have been made and the demnation, bond given, if the plaintiff elects to give one, as required by the last two sections, the Court must make a final order of condemnation, which must describe the property condemned and the purposes of such condemnaWhen filed, tion. A copy of the order must be filed in the office of the Recorder of the county, and thereupon the property described therein shall vest in the plaintiff for the purposes therein specified. title vests. Putting plaintiff in 1254. At any time after service of summons, the possession. Court may authorize the plaintiff, if already in possession, to continue therein, and if not, then to take possession of and use the property during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against the plaintiff on account thereof; but the plaintiff must give security, to be approved by such Court or Judge, to pay as well the compensation in that behalf, when |