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7 Gray, 451.

SECT. 52. Where suits are pending or are hereafter brought Time extended if suits pending' in which the right of such corporation to lay out and construct &c. its road on any particular location is drawn in question, the G. S. 63, § 30. time for applications to the commissioners for the ascertaining of damages caused by the taking of land or other property in and upon such location may be made at any time within one year after the final determination of such suits upon the merits : provided, that such suits, if not now pending, are brought within one year from the time of such taking, or are brought for the purpose of trying the same right which was drawn in question in some former suit now pending or brought as aforesaid, and which failed for want of jurisdiction, defect of form, or other like cause, not deciding the merits of the controversy, and are brought within six months after such determination of a former suit.

proceedings

within one

SECT. 53. If a party makes application for the assessment of Upon abatehis damages within the time limited by law, or for a jury to prent, & new assess the same, or is a party to such application for a jury by may be had any other person, and the petition or other proceeding is quashed, year. abated, or otherwise avoided or defeated, for any inaccuracy, G. S. 63, § 31. irregularity, or matter of form; or if after verdict for such applicant or other party the judgment is arrested or reversed on a writ of error, or the proceedings quashed on certiorari; such applicant, petitioner, or other party, may commence such proceedings anew at any time within one year from such abatement, reversal, or other determination.

required.

SECT. 54. Upon application to the commissioners by either Security for party for an estimate of damages, they shall, if requested by the damages, &c., if owner, require the corporation to give security to their satisfac- G. S. 63, § 32. tion for the payment of all damages and costs which may be awarded by them or a jury for the land or property taken; and if upon petition of the owner with notice to the adverse party the security appears to the commissioners to have become insufficient, they shall require the corporation to give further security to their satisfaction; and all the right or authority of the corporation to enter upon or use the land or other property, except for making surveys, shall be suspended until it gives the security required.

may issue war

Rights of cor

SECT. 55. Upon an award of damages by county commis- Commissioners sioners or a jury against a corporation on the petition of a per- rants of disson injured by the location and construction of its road, the tress. commissioners, after the time to petition for a jury has expired, poration negmay issue warrants of distress to compel the payment of the fecting payment damages with costs and interest; and if the corporation for G. S. 63, § 33. thirty days after a warrant of distress or an execution has issued against it for damages and costs for taking land or other property, neglects to satisfy the same, all right and authority to enter

to cease.

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Jury in such

case

G. S. 63, § 37.

upon or use such land or property, except for making surveys, shall be suspended until it pays such warrant or execution.

SECT. 56. If upon the petition of an owner of land or property mentioned in either of the two preceding sections, it appears to the supreme judicial court or any justice thereof in term time or vacation, that a corporation has for thirty days neglected to comply with any order under section fifty-four, or to satisfy any warrant or execution mentioned in section fifty-five, the court or justice may by injunction or other suitable process in equity prohibit and restrain the corporation from entering upon or using such land or property contrary to the provisions of said sections.

SECT. 57. After the commissioners have made their estimate, the corporation may tender to the owner of the land or other property the amount of damages estimated, in full satisfaction thereof. If the owner refuses to receive the same, with costs to be taxed to that period, and applies for a jury, he shall, unless he recovers upon the final hearing a greater amount of damages than the sum tendered, pay all costs caused by the application and arising after tender. If the corporation applies for a jury, and upon a final hearing the damages as estimated by the commissioners are not reduced, it shall pay all costs caused by the application.

SECT. 58. If a corporation by virtue of its charter takes land or other property within the city of Boston, the board of aldermen of said city shall, except as provided in the following section, have all the power of commissioners in like cases; and like proceedings shall be had before said board for the purpose of ascertaining, securing and obtaining payment of damages, and subject to the same limitations, as upon an application to the commissioners.

SECT. 59. Either party, if dissatisfied with the estimate of damages thus made by the board of aldermen, may apply for a 4 Gray, 302, 304. jury at the next term of the superior court for the county, after the estimate is made known to the parties; and thereupon the same proceedings shall be had as in case of estimating and enforcing payment of damages for laying out ways within said city.

Corporation may vary direction of road. Proceedings thereon.

G. S. 63, § 38. 1 Gray, 340.

ALTERATION OF ROAD.

SECT. 60. A corporation after having taken land for its road may vary the direction of the road in the place where such land is situated; but it shall not locate any part thereof without the limits prescribed by the act of incorporation. It shall before the expiration of the time required by law for completing the road file the location of the different parts thereof where such variations are made with the county commissioners, or if in the city

of Boston with the board of aldermen, and the time allowed for completing the whole road shall not be extended in consequence of such variation.

such case.

SECT 61. Every corporation shall be liable to the owners of Damages in lands taken for making such variations, for all damages oc- G. S. 63, § 39. casioned thereby, to be recovered in the manner herein before 1 Gray, 357. provided for recovering such damages.

CONSTRUCTION.

bankments, &c.

G. S. 63, § 40.
Cush. 421.

2 Cush. 538.

SECT. 62. At the time of estimating damages to land owners Commissioners under section forty-two, the commissioners shall in addition may order emthereto order the corporation to construct and maintain such embankments, drains, culverts, walls, fences, or other structures, as they judge reasonable for the security and benefit of such owners, and prescribe the time and manner of making or repairing the same.

6

1 Gray, 614. See §§ 43, 44.

ance; or owner

ages.

6 Cush. 421.j

SECT. 63. If the corporation neglects to comply with such s. J. C. may enorder, the land owner or his assigns interested in its execution force performmay apply to the supreme judicial court, which may grant all may recover processes necessary to enforce the specific performance thereof. double damOr if it appears that the corporation for more than forty-eight G. S. 63, § 41. hours after notice of such neglect given in writing to the presi- 1 Gray, 614. dent or superintendent neglected to commence the work required to be done, or thereafter unreasonably delayed to complete the same, the person so interested may maintain an action of tort against the corporation, in which he may recover double the damages sustained by him by reason of the neglect.

make and main

G. S. 63, § 42.

SECT. 64. When the owner of land through which a railroad Corporation to constructed prior to the seventeenth day of April in the year tain fences in eighteen hundred and forty-one passes, has not received all dam- certain cases; ages assessed to him, or has not agreed to maintain suitable 98 Mass. 565. fences upon such road, upon the application of the owner or of the mayor and aldermen or selectmen of the city or town, the county commissioners may require the corporation to make and maintain fences suitable for the benefit and security of the land owner, and of travellers upon the road.

to construct fences and bar. cattle;

riers against

G. S. 63, § 43.

SECT. 65. Each corporation shall erect and maintain suitable fences, with convenient bars, gates, or openings therein, at such places as may reasonably be required, upon both sides of the entire length of any railroad which it shall have constructed 98 Mass. 565. subsequently to the sixteenth day of May in the year eighteen 12 Gray, 55. hundred and forty-six, except at the crossing of a turnpike, high- 14 Allen, 153. way, or other way, or in places where a convenient use of the road would be thereby obstructed; and shall also construct and maintain sufficient barriers at such places as may be necessary,

1 Allen, 16, 493.

-penalty, &c.,
for neglect;
G. S. 63, § 44.

-to furnish plan, &c., of

G. S. 63, § 45. 2 Gray, 574.

and, where it is practicable so to do, to prevent the entrance of cattle upon the road.

SECT. 66. A corporation unreasonably neglecting to comply with the provisions of the preceding section shall for every such neglect forfeit a sum not exceeding two hundred dollars for every month during which the neglect continues; and the supreme judicial court, or any justice thereof, either in term time or vacation, may by injunction or other suitable process in equity compel the corporation to comply with such provisions; and upon such neglect, may restrain and prohibit the corporation from crossing any turnpike, highway, or town way, or using any land, until said provisions are complied with.

SECT. 67. After a corporation has by virtue of its charter land, &c.,taken. taken land or other property for the purpose of its road, it shall, before proceeding to construct the road, furnish a plan of the land to the owner, and, if requested by the owner or occupant, fence the same; and upon demand made by the owner of such other property within three years from the taking of the same, such corporation shall within thirty days furnish him with a plan or description thereof in writing. If such plans or descriptions are not so furnished, all the rights of the corporation to enter upon or use such land or other property, except for making surveys, shall be suspended until it has so delivered a description or plan.

Highways not to be obstruct

ed.

G. S. 63, § 46. 7 Met. 72.

3 Cush. 108.

2 Gray, 56, 465. 14 Gray, 95, 380. 14 Allen, 447. Railroads

ways, &c., to

pass over or under.

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G. S. 63, § 47. 7 Cush. 497.

CROSSING HIGHWAYS, &C.

SECT. 68. If a railroad is laid out across a turnpike road or other way, it shall be so made as not to obstruct the same.

[No alteration in sections 52-68.]

SECT. 69. A corporation which constructs its road across a crossing high- turnpike, highway, or town way, shall construct it so as to cross over or under the same; except as is otherwise provided in section seventy-seven of this act; if it constructs its road to pass over, a sufficient space shall be left under the railroad conveniently to accommodate the travel upon the turnpike or way; if under, the corporation shall build and maintain such bridges with suitable approaches thereto as in like manner to accommodate the travel upon the turnpike or way over the crossing.

Corporation wishing to raise or lower

highway, &c.,

[This section has been altered to admit a reference to section 77 incorporated through subsequent legislation.]

SECT. 70. Such corporation may raise or lower any highway or town way for the purpose of having its road pass over or under the same; but before proceeding to cross, alter, or excavate for the purpose of crossing a highway or town way, it shall obtain from the county commissioners a decree prescribing what 3 Cush. 116, 117. alterations may be made in the way, and the manner and time

to obtain decree, &c.;

G. S. 63, § 48. 23 Pick. 326.

2 Gray, 56, 465.

of making the alterations or structures the commissioners may 9 Cush. 1. require at the crossing; and before entering upon, excavating, see §§ 72, 82. or altering the way, shall give security, satisfactory to the commissioners, to the city or town in which the crossing is situated, that it will faithfully comply with the requirements of the decree to the acceptance of the commissioners, and indemnify the city or town from all damages and charges by reason of any failure so to do.

highways, neg

sioners may

SECT. 71. If upon application of the mayor and aldermen or obstructing selectmen of any place to the county commissioners it appears lecting bridges, that the corporation crosses with its road a highway or town &c, commis way in such place so as to cause an obstruction thereto, or order, &c.; refuses or neglects to erect or keep in proper repair any bridge G. S. 63, § 49. or other structure required or necessary at such crossing, the commissioners, after due notice to the corporation, may pass a decree prescribing what alterations, structures, or repairs it shall make at the crossing, and the time within which they shall be made; and shall order the corporation to pay the costs of the application. They may further order the corporation to give like security, as provided in the preceding section, for the faithful performance of the requirements of the decree and the indemnity of said place upon any failure in such performance.

SECT. 72.. If it is made to appear to the supreme judicial court, or any justice thereof, in term time or vacation, upon the petition of the mayor and aldermen or selectmen of any place, that a corporation has excavated or altered a highway or town way without obtaining the decree and giving the security required by section seventy, or has neglected for fifteen days to give security as required by the preceding section, the court or justice may, by injunction or other suitable process according to the practice of courts of equity, restrain and prohibit the corporation from entering upon, altering, excavating, or crossing the way, until such decree is obtained or the security given.

proceeding

without decree, or neglecting to

give security, strain, &c.; G. S. 63, § 50.

S. J. C. may re

turnpike, &c.

23 Pick. 226.

SECT. 73. A corporation may raise or lower any turnpike for wishing to the purpose of having its road pass over or under the same; but raise or lower before proceeding to make such alteration, it shall in writing G. S. 63, § 51. notify the president or clerk of the turnpike corporation, which 8 Cush 116, 117. within thirty days after receiving the notice shall notify in writ- 9 Cush. 1. ing the railroad corporation of the alterations, if any, which they may require to have made therein for such purpose.

2 Gray, 56, 465.

alterations,

SECT. 74. If the parties do not agree what alterations are Parties disanecessary, the railroad corporation, or the proprietors of the greeing as to turnpike, may apply to the county commissioners at their next either may ap regular meeting after the expiration of said thirty days, to deter- peal to commismine whether any and what alterations shall be made, and their G. S. 63, § 52. decision shall be final. If the corporation unreasonably neglects

sioners.

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