ors, whether the said stock is held by an assignee, transferee, or original subscriber, the same may be collected by action of debt, or the directors may, at their election, serve upon such stockholder, in case he shall be a resident of the state, thirty days' notice in writing, that such installment has been due and unpaid for the term aforesaid, or in case such stockholder shall be a non-resident of this state, publish in some newspaper printed at the capital of this state, and of general circulation in this state, a like notice that such installment has been due and unpaid for the term aforesaid; and if the said installment shall not be paid, with all the charges and expenses incurred in the proceedings hereby prescribed, within ninety days after the service of notice or the last publication provided for as aforesaid, the said stock, and all the right, title, and interest of the said assignee, transferee, or original subscriber therein shall, by virtue of such failure, and without further action by such company, become forfeited, and may be disposed of by said company as it sees proper.

496. Whenever any railroad company heretofore incorporated or created, or incorporated under the provisions of this subdivision, shall, in the opinion of the directors thereof, require an increased amount of capital stock, they shall, when authorized by the holders of a majority of capital stock, file with the secretary of state a certificate setting forth the amount of such desired increase, *and shall give public notice of such increase of the capital stock of such company by publishing the same for sixty days in a newspaper published in the county in which it maintains its public and principal office,* and thereafter such company shall be entitled to have such increased capital as is fixed by said certificate.

*to* added 1879, p. 79.

497. The persons named in said certificate of incorporation, or any three of them, shall be authorized to order books to be opened for receiving subscriptions to the capital stock of said company, at such time or times, and at such place or places as they may deem expedient, after having given at least thirty days' notice in a newspaper published or generally circulated in one or more counties where books of subscription are to be opened, of the time and place of opening books; and so soon as ten per centum on the capital stock shall be subscribed, they may give like notice for the stockholders to meet at such time and place as they may designate, for the purpose of choosing seven directors, who shall continue in office until the time fixed for the annual election, and until their successors are chosen and qualified. At the time and place appointed, directors shall be chosen by ballot, by such of the stockholders as shall attend for that purpose, either in person or by lawful proxies. Each share shall entitle the owner to one vote, and a plurality of votes cast at such election shall be necessary for a choice; but after the first election for directors, no person shall vote on any share on which any installment is due and unpaid. The persons named in such certificate, or such of them as may be present, shall be inspectors of such election, and shall certify what persons are elected directors, and appoint the time and place for holding their first meeting. A majority of said directors shall form a board, and be competent to fill vacancies therein, make by-laws not inconsistent with the provisions of this subdivision of the laws of this state, and alter the same at pleasure, and transact all business of the corporation. A new election shall be annually held for directors, at such time and place as the stockholders at their first meeting shall determine, or as the by-laws of the corporation may require; and the directors chosen at any election shall, so soon thereafter as may be convenient, choose one of their number to be president, and shall appoint a secretary and treasurer of the corporation. The directors shall from time to time make such dividends of the profits of the said company as they may think proper, and the said by-laws and all alterations and revisions thereof shall be recorded and

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served in the office of the secretary of state, in the same manner as the certificate provided for in section seventy-three of this chapter [490].

Sec. 498 formed sec. 112, R. S. 1866, p. 228,

498. Every stockholder of any railroad company shall be individually liable to the creditors of such company, to an amount equal to the amount unpaid on the stock held by him for all the debts and liabilities of such company, until the whole of the capital stock held by him shall have been paid to the company; but in no other case shall the stockholders be individually liable for the debts of the corpo

ration.

When amount due the corporation amounts to or exceeds the amount claimed by the creditor, a joint payment may be rendered against the corporation and stockholders. White v. Blum, 4,560.

Secs. 499 and 500 formed secs. 88 and 87, R. S. 1866, p. 219.

499. Each and every railroad company incorporated under this subdivision, and such as shall hereafter accept the same, shall annually in the month of January make, upon the oath of the president, secretary, or treasurer, a full report of the condition of its affairs to the auditor of the state, showing the amount of the capital stock of such company, the gross amount of receipts during the previous year, the cost of repairs and incidental expenses, the net amount of profits, and the dividends made, with such other facts as may be necessary to a full statement of the affairs and condition of such road; and the auditor shall incorporate an abstract thereof in his annual report to the legislature.

Jackman v. M. P. R. Co., 15, 529 (19 N. W., 497).

500. Such corporations shall, upon commencing business, establish an office at some point on the line of its road, and may change the same at pleasure.

Secs. 501 to 505. "An act to require railroad corporations doing business in the state of Nebraska to have and maintain public offices in the state for the transaction of their business.' "" 1881, p. 308. In force June 1.

501. That all railroad corporations or companies doing business in the state of Nebraska as public carriers, either for the transportation of freight or carrying passengers from any point in this state, are hereby required to have and maintain a public general office in this state, in some county through which said road runs, for the transaction of its business, which office shall be established on or before the first day of January, A. D. 1882, and notice thereof given by publication in some newspaper on the line of its road for four consecutive weeks; Provided, That railroad corporations or companies, hereafter to be incorporated under the laws of this state, shall have one year, from the date of such incorporation, in which to comply with the provisions of this act.

502. It shall be the further duty of all such railroad corporations or companies doing business as aforesaid, to keep and maintain in such offices books in which shall be recorded the amount of capital stock of such railroad corporation or company, and also the transfer of such stock, the amount of its assets and liabilities, and the names and places of residence of its officers, which said books shall be open to public inspection at all times. And the general manager, general superintendent, general freight or ticket agent or such other general officers or agents as said railroad corporations or companies shall have or employ, shall keep and maintain their offices at such general offices within this state; Provided, That railroad corporations or companies not operating over ten miles of road in this state shall be exempted from the provisions of this act.

503. The directors of every railroad corporation or company having control of any road doing business in the state of Nebraska, shall annually make a report to the auditor of public accounts, of the amount of money received for the preceding year from passengers and freight, at any and all points in this state, which

report shall be made and filed with the auditor on or before the fifteenth day of January of each year.

504. Any railroad corporation or company violating any provisions of this act or failing to comply with the provisions herein contained, shall forfeit all right to do business in this state, and on application of any person feeling aggrieved, it shall be the duty of any court having jurisdiction, upon proper and satisfactory proof, to place such railroad in the hands of a receiver and proceed to wind up its business. 505. In addition to the penalties in the proceeding section, the principal officers of such corporation or company shall be subject to fine not exceeding one thousand dollars, or imprisonment, upon conviction, in the penitentiary for a term not exceeding three years.

II. EMINENT DOMAIN.

Secs. 506 to 510 formed secs. 81-86, except 84, ch. 25, R. S. 1866, p. 217.

506. Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may take, hold, and appropriate so much real estate as may be necessary for the location, construction, and convenient use of its road, including all necessary grounds for stations, buildings, workshops, depots, machine shops, switches, side-tracks, turn-tables, and water-stations; all materials for the construction and repair of said road and its appurtenances; and a right of way over adjacent lands, sufficient to enable such company to construct and repair its road, and a right to conduct water by aqueducts, and the right of making proper drains; Provided, That the lands held, taken, and appropriated, otherwise than by the consent of the owner, shall not exceed two hundred feet in width, except for wood and water stations, and depot grounds, unless where greater width is necessary for excavations, embankments, or depositing waste earth; Provided further, That no appropriation of private property, for the use of any corporation provided for in this subdivision, shall be made until full compensation therefor be first made or secured to the owners thereof.

One exercise of right of eminent domain does not exhaust power of railroad company. Deitrichs v. L. & N. W. R. R. Co., 13, 365 (13 N. W., 624). See C. B. & Q. R. v. Hall, 24, 745 (40 N. W., 280). Where the owner of land conveyed a right of way one hundred feet wide to a railroad company "its successors and assigns have right of way, and for operating its railroad only "; and afterwards another railroad was allowed to build and operate another road over a part thereof. Held, That the second railroad was an additional burden and the land owner should recover therefor. Blakely v. C., K. & N. R. Co., 34, 284 (51 N. W., 767).

507. Whenever any railroad company heretofore incorporated, or which may hereafter be incorporated, shall find it necessary for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the grade or location of any portion of their road, whether heretofore made or hereafter to be made, such railroad companies shall be and are hereby authorized to make such changes of grade and location, not departing from their general route. And for the purpose of making any such change in the location and grades of any such roads as aforesaid, such company shall have all the rights, powers, and privileges to enter upon and appropriate such lands, and make surveys necessary to effect such changes and grades, upon the same terms, and be subject to the same obligations, rules, and regulations as are prescribed by law; and shall also be liable in damages, when any may have been caused by such change, to the owner or owners of lands upon which such road was heretofore constructed, to be ascertained and paid, or deposited as herein provided; but no damages shall be allowed unless claimed within ninety days after actual notice in writing of such intended change shall be given to such owner or owners residing on the premises, or notice by publication in some newspaper in general circulation in the county, if non-resident.

508. If it shall be necessary, in the location of any part of any railroad, to occupy any road, street, alley, or public way or ground of any kind, or any

part thereof, it shall be competent for the municipal or other corporation, or public officer or public authorities, owning or having charge thereof, and the railroad company, to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied; and if said parties shall be unable to agree thereon and it shall be necessary, in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public way or ground, such company may appropriate so much of the same as may be necessary for the purposes of such road, in the same manner and upon the same terms as is provided for the appropriation of the property of individuals by the eighty-first section of this chapter [506].

Where the use of the streets obstructs the lot-owner's free use of the street he may recover damages. C., K. & N. R. R. Co. v. Hazels, 26, 369 (42 N. W., 93). See Gottschalk v. C., B. & Q. R. R. Co., 14, 554 (16 N. W., 475).

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509. Such company may acquire, by purchase or gift, any lands in the vicinity of said road, or through which the same may pass, so far as the same may deemed convenient or necessary by said company to secure the right of way to such as may be granted to aid in the construction of such road, and the same tc hold or convey in such manner as the directors may prescribe; and all deeds and conveyances made by such company shall be signed by the president under the seal of the corporation, and any existing corporation may accept the provisions of this subdivision by filing in writing their acceptance thereof, under the seal of said corporation, in the office of the secretary of state. And upon filing such acceptance, such corporation shall, from the date thereof, succeed to and become invested with all the rights, privileges, immunities, and powers conferred by this subdivision, without reorganizing. The said secretary shall record and preserve such acceptance in his office, and a copy thereof, duly certified by said secretary, under the seal of the state, shall be evidence in all the courts of this state of such acceptance.

510. Any railway company may construct and carry their railroad across, over, or under any road, railroad, canal, stream, or water course, when it may be necessary in the construction of the same; and in such cases said corporation shall so construct their railroad crossings as not unnecessarily to impede the travel, transportation, or navigation upon the road, railroad, canal, stream, or water course so crossed. Said corporation shall have the right to change the channel of any stream or water course from its present location or bed, whenever it may be necessary in the location, construction, or use of their said road, provided they do not change its general course, or materially impair its former usefulness.

This does not relieve them from any damage resulting from such act. McCleneghan v. O. & R. V. R. R. Co., 25, 523 (41 N. W., 350).

Secs. 511 and 512 formed secs. 95 and 97, R. S. 1866, pp. 223-4.

511. Any railroad corporation may purchase and use real estate for a price to be agreed upon with the owners thereof; or the damages to be paid by such corporation for any real estate taken as aforesaid, when not agreed upon, shall be ascertained and determined by commissioners to be appointed by the probate judge of the county wherein such real estate is situated, in conformity with the provisions of this subdivision; Provided, That if the company shall need or require, for the purpose of constructing said railroad, to take and occupy any real estate, in any unorganized county, or other unorganized country in this state, where there is no probate judge, then the probate judge of the first organized county east of said lands upon the line of said road shall appoint commissioners to assess said damages, and to perform all other duties required by the probate judges and commissioners by the terms of this subdivision, and either shall have the right to appeal, as in other cases provided for by this subdivision.

"Owner" applies to any person having an interest in the estate. Dodge v. O. & S. W. R. R. Co., 20, 282 (29 N. W., 926). Competency of witnesses, opinions of the same, and what damages recoverable. B. & M. R. R. Co. v. Schluntz, 14, 421 (16 N. W., 439). Experts may be al

lowed to testify as to the value of the land immediately before the location, and its value immediately after. R. V. R. R. Co. v. Arnold, 13, 485 (14 N. W., 478). In ascertaining value of lots it was held error to admit in evidence what they cost three years before. Deitrichs v. L. & N. R. R. Co., 12, 229 (10 N. W., 718). Measure of damages and opinion of witnesses. F., E. & M. V. R. R. Co. v. Whalen, 11, 585 (10 N. W., 491). F., E. & M. V. R. R. Co. v. Lamb, 11, 592 (10 N. W., 493). Petition to condemn must make a prima facie case. Clark y. C. K. & N. R. R. Co., 23, 613 (37 N. W., 484). When damages awarded have not been deposited with probate judge, may bring action for the amount of the award to enjoin the operation of the road against his premises, or sue for tresspass. O. & N. W. R. R. v. Menk, 4, 24. Injunction will lie unless company has made deposit with probate judge as required by law, though appeal has been taken from award. Ray v. A. & N. R. R., 4, 440. A paper headed transcript," certified by county judge, though not complete, held to be sufficient to give appellate court jurisdiction. N. & C. R. R. Co. v. Storer, 22, 92 (34 N. W., 69). Company liable for damages resulting from taking street. F., E. & M. V. R. Co. v. Meeker, 28, 99 (44 N. W., 79). Railroad liable for damages to a lot owner by reason of running through an alley adjoining his lot. Gottschalk v. C., B. & Q. R. R. Co., 14, 554 (16 N. W., 475). Damages may be recovered though no part of the land be actually taken. R. V. `R. R. Co. v. Fellers, 16, 169 (20 N. W., 217).

512. If the owner of any real estate over which said railroad corporation may desire to locate their road shall refuse to grant the right of way through his or her premises, the county judge of the county in which said real estate may be situated, as provided in this subdivision, shall, upon the application of either party, direct the sheriff of said county to summon six disinterested freeholders of said county, to be selected by said county judge, and not interested in a like question, unless a smaller number shall be agreed upon by said parties, whose duty it shall be to carefully inspect and view said real estate, and assess the damages which said owner shall sustain by the appropriation of his or her land to the use of said railroad corporation, and make report in writing to the county judge of said county, who, after certifying the same under his seal of office, shall transmit the same to the county clerk of said county for record, and said county clerk shall file, record, and index the same in the same manner as is provided for the record of deeds in this state, and such record shall have the like force and effect as the record of deeds in pursuance of the statute in such case made and provided. And if said corporation shall at any time before they enter upon said real estate, for the purpose of constructing said road, pay to said county judge for the use of said owner the sum so assessed and returned to him as aforesaid, they shall thereby be authorized to construct and maintain their said road over and across said premises; Provided, That either party may have the right to appeal from such assessment of damages to the district court of the county in which such lands are situated, within sixty days after such assessment. And in case of such appeal, the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified to the county clerk, to be filed and recorded as herein before provided, in his office. But such appeal shall not delay the prosecution of the work on said railroad if such corporation shall first pay or deposit with such county judge the amount so assessed by said freeholders. Such railroad company shall in all cases pay the costs of the first assessment; Provided, That if, on appeal, the appellant shall not obtain a more favorable judgment and award than was given by said freeholders, then such appellant shall be adjudged to pay all the costs made on such appeal; Provided further, That either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the county judge until a final decision be had, subject to the order of the supreme court.

Amended 1883, p. 179. This method is exclusive and either party may proceed under it, but does not include damages before condemnation. R. V. R. R. Co. v. Fink, 18, 86 (24 N. W., 439). Question of damages peculiarly of a local nature, and for jury. Omaha Belt R. Co. v. Johnson, 24, 708 (40 N. W., 134). Building on proposed right of way may be condemned and may be sold by company. Forney v. F., E. & M. V. R. R. Co., 23, 469 (36 N. W., 806). Damage to or loss of a house or stone quarry on the proposed right of way are proper elements of damage. Witness acquainted with land before and after may state value. B. & M. R. Co. v. White, 28, 166 (44 N. W. 95). As to damages for diversion of a stream, etc. Jackman v. M. P. R. Co., 15, 525 (19 N. W. 497). Company cannot dispute the ownership of the land on appeal. O., N. & B. H. R. R. Co. v.

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