1872.

and the separate acknowledgment of married women, that the clerks of the several county courts have; and on the presentation of the grant and acknowledgment to the clerk of the county court where the land lies, it shall be the duty of the clerk to record the same as other deeds; and they shall be effectual against all persons according to their tenor: Provided, That where the parties are infants, or absent, or refuse to make the grant, they shall hear any proof that may be adduced, and upon their own view proceed to value any land required for the right of way, or lands required for turn-outs or depot stations, or other appendages of said road, and also of earth, stone, gravel, or timber for the construction of said road, and report the value they have fixed, together with the evidence adduced, to the court appointing them, with a map or profile of the required ground; and said report shall be filed with the clerk of such court, and a summons issued to the proprietors to show cause against the confirmation of the report; but if the proprietor shall be out of the Commonwealth, the summons may be executed upon a known agent, if there be one in the county; and if there be no known agent in the county, then the court may order the appearance of the party at a named day, and appoint the clerk to give the proprietor notice by letter; and in case of there being infant, idiot, or lunatic proprietors, the court shall appoint guardians ad litem for them, and cause the guardian to appear and act for them; and in case an absent defendant does not appear, the court shall appoint an attorney of the court to act for them. It shall be lawful for the trustees or any proprietor, or both, to traverse the report, and for the court to have the traverse tried in open court by a competent jury; on which trial the report and evidence returned as aforesaid shall be heard, together with such proof as either party may produce. A new trial to the finding of the jury may be granted as in other cases. The report shall stand for hearing, as to any proprietor, when the process has been executed ten days, or after appearance of a proprietor on a day fixed for his appearance; and the court shall have jurisdiction to confirm the report if no traverse is filed; and in case a traverse is filed, to have the same tried by a jury, and to give judgment upon the report or finding of the jury, and order the payment of the money, and the execution of the grant in accordance with the report; and to have the grant executed by a commissioner appointed by the court, and to order them to be recorded in the county court clerk's office of the county; and either party may appeal from the judgment of the court.

§ 4. That the commissioners of jury, in estimating the

value of the lands proposed to be taken, shall not be confined to the actual value, but may take into consideration any consequential damage that may result to the adjoining proprietors of the land, and also the advantages and disadvantages the proposed road will be to such lands.

§ 5. That upon the affidavit of the engineer of said trustees, made and filed before the county judge of any county through which the proposed road may pass, that at any point more than one hundred feet is necessary properly to construct and operate said road, said trustees may acquire the right to so much land as may be necessary for that purpose, and in the manner provided in the preceding section.

6. The said trustees may also, for the purpose of constructing and maintaining said line of railway, occupy or use any turnpike or plank road, street or other public way or ground, or any part thereof, upon such terms and conditions as may be agreed upon between said trustees and the municipal or other corporations, persons, or public authorities owning or having charge thereof; and in case it shall be necessary to provide a new road, street, or other ground, in place of that so used or occupied, they may acquire the necessary land and cause the necessary improvement to be made thereon. If no agreement can be made for the right to use or occupy any road, street, or ground that may be necessary, the said trustees may take and appropriate said rights in the manner provided in the next section: Provided, That, before the damages are assessed, the court may fix such terms and conditions as may be deemed best for the public interest.

§ 7. The appropriations authorized in the preceding section shall be made in the manner, and subject to the same right of traverse, writ of error, and appeal, provided by law for taking private property for the use of turnpike and plank road companies, except that the petition shall be filed in the circuit court of the county in which such turnpike, plank roads, streets, or other public ways or grounds, may lie; and if a continuous portion of the same, lying in more than one county, is sought to be used or occupied, the proceedings may be instituted in the circuit court of any county in which any part of such continuous portion may lie; and the damages shall be assessed for the whole of such portion, whether lying in the county wherein the proceedings are instituted or in other counties; the writ shall be directed to the sheriff of the county in which the petition is filed. §. 1, during the construction or after the completion of said line of railway, it shall be found necessary by

1872...

1872.

said trustees to change the location or grade, or substitute other works or conveniences for those originally designed or constructed, or to provide additional sidetracks or other appendages for the proper management and operation of said railway, the said trustees may make such changes and provide such additional appendages, not departing from the general route originally selected by them; and, for the purpose aforesaid, may acquire or enter upon, take and appropriate, such lands or rights, as may be necessary, in the mode hereinbefore prescribed.

§ 9. Wherever, along the route selected by said trustees, there shall be a railroad already constructed, or rights of way or depot or other grounds acquired therefor, which railroad, rights of way or grounds, can be adopted as part of the said line, it shall be lawful for persons, company, or corporations owning the same, to sell to the said trustees the said railroad, rights of way or grounds, or any part thereof, upon such terms and conditions as may be agreed upon between the said trustees and such persons, or the president and directors of such company or corporation: Provided, That no such agreement shall be binding upon the stockholders of any such company or corporation unless a majority in interest of said stockholders, as shown by the books of such company or corporation, shall ratify the same in person or by proxy, at a meeting to be held at the place of holding the election of directors, to be called after notice given of the object of the meeting, in the manner provided for notice of such elections.

§ 10. No permanent bridge or other work shall be so con-tructed as to materially interrupt or impair the navigation of such streams as are naturally navigable, or as have been declared to be so by law.

§ 11. And whereas, under and by virtue of the above mentioned act of the General Assembly of Ohio, the said board of trustees have power to borrow a fund for the construction of the said line of railway, not to exceed ten millions of dollars, and to issue bonds therefor in the name of the city of Cincinnati, under the corporate seal thereof, bearing interest at a rate not to exceed seven and three tenths per centum per annum, payable at such times and places and in such sums as shall be deemed best by said board; which bonds are to be signed by the president of said board, and attested by the city auditor of said city, who is to keep a register of the same, and are to be secured by a mortgage on the said line of railway and its net income, and by pledge of the faith of said city and a tax, which it is made the duty by said act of the council of said city annually to levy, sufficient,

with said net income, to pay the interest, and provide a sinking fund for the final redemption of said bonds: Be it further enacted, That the respective holders of all such bonds are hereby declared to be entitled to hold, by way of mortgage, without any conveyance; the said line of railway and its appendages, and the net income thereof, and all the estate, right, and title, and interest of the said city of Cincinnati, and of the said board of trustees therein, until the respective sums mentioned in said bonds, and the interest thereon, shall be tully paid, without any preference one above another, by reason of priority or date of any such bonds, or of the time when such holder became the owner of the same, or otherwise howsoever. The mortgage lien hereby given is to vest, as soon as rights of way of lands, whereon are to be placed the works and conveniences used in constructing, maintaining, or operating said railway, are acquired or taken, by virtue of the powers of the said trustees: Provided, That nothing herein contained shall affect the lien of any vendor upon lands sold to said trustees, nor to be held to include the rolling stock used in operating said road: And provided further, That any mortgage that may be made by any lessee or lessees of said line of railway, or persons or company operating it, on the rolling stock used in operating said road, shall not have precedence over, but shall be at all times inferior in priority to, judgments that may be obtained against thein, in any county through which said road may run, for wages, materials, and supplies in running said road; for damages for breaches of contracts of affreightment, for injury, loss, or destruction of any property put on the cars on said road for transportation, or for any injury to persons or property occasioned in the running of said road.

§ 12. Sail trustees shall survey and locate the route of said line of railway, and actually commence the construction thereof, within two years from the passage of this act; and shall continue such construction and complete the work within five years from its commencement, or within such further reasonable period, not exceeding ten years in all, as the Governor may grant upon satisfactory evidence that they are progressing with due diligence and in good faith. The gauge of said railway shall be five feet.

13. The charge for transportation en said railway shall not exceed thirty-five cents per hundred pounds on heavy articles, and cents per cubic foot on articles of measurement for every hundred miles, and four cents a mile for every passenger.

§ 14. The taxes imposed on said line of railway and its appendages shall not exceed the rate imposed on other

1872.

1872.

and the separate acknowledgment of married women, that the clerks of the several county courts have; and on the presentation of the grant and acknowledgment to the clerk of the county court where the land lies, it shall be the duty of the clerk to record the same as other deeds; and they shall be effectual against all persons according to their tenor: Provided, That where the parties are infants, or absent, or refuse to make the grant, they shall hear any proof that may be adduced, and upon their own view proceed to value any land required for the right of way, or lands required for turn-outs or depot stations, or other appendages of said road, and also of earth, stone, gravel, or timber for the construction of said road, and report the value they have fixed, together with the evidence adduced, to the court appointing them, with a map or profile of the required ground; and said report shall be filed with the clerk of such court, and a summons issued to the proprietors to show cause against the confirmation of the report; but if the proprietor shall be out of the Commonwealth, the summons may be executed upon a known agent, if there be one in the county; and if there be no known agent in the county, then the court may order the appearance of the party at a named day, and appoint the clerk to give the proprietor notice by letter; and in case of there being infant, idiot, or lunatic proprietors, the court shall appoint guardians ad litem for them, and cause the guardian to appear and act for them; and in case an absent defendant does not appear, the court shall appoint an attorney of the court to act for them. It shall be lawful for the trustees or any proprietor, or both, to traverse the report, and for the court to have the traverse tried in open court by a competent jury; on which trial the report and evidence returned as aforesaid shall be heard, together with such proof as either party may produce. A new trial to the finding of the jury may be granted as in other cases. The report shall stand for hearing, as to any proprietor, when the process has been executed ten days, or after appearance of a proprietor on a day fixed for his appearance; and the court shall have jurisdiction to confirm the report if no traverse is filed; and in case a traverse is filed, to have the same tried by a jury, and to give judgment upon the report or finding of the jury, and order the payment of the money, and the execution of the grant in accordance with the report; and to have the grant executed by a commissioner appointed by the court, and to order them to be recorded in the county court clerk's office of the county; and either party may appeal from the judgment of the court.

§ 4. That the commissioners of jury, in estimating the