peace, provided the appellant or appellants have executed bond when said bond is required and done all necessary on his or their part to perfect such appeal, and in no case shall any appeal from any justice be dismissed when it shall appear to the appellate court that injustice might be done to the appellant or appellants, but in every such appeals. Such case such appeal shall be docketed, heard and disposed of by said appellate court in accordance with the ordinary rules of law governing the trial of such cases, and under such other orders as the court may see fit to impose.

-trial of

Code amended.

Contest pro

ceedings county, etc.,

-witnesses.

contest.

(Senate Bill No. 76.)

CHAPTER 80.

AN ACT to amend and re-enact section three of chapter six of the code of West Virginia of one thousand eight hundred and ninety-nine, in respect to an appeal to the Circuit Court from the County Court in a contest proceeding for county and district officers.

[Passed February 22, 1901. In effect 90 days from passage. Approved February 23, 1901.]

Be it enacted by the Legislature of West Virginia:

1. That section three of chapter six of the code of West Virginia of eighteen hundred and ninety-nine, be amended and re-enated so as to read as follows:

3. Subpoenas for witnesses for either party shall for be issued by the clerk of the county court, and served officers. as in other cases and the witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses attending a circuit court in a civil suit. The notice of contest shall -notice of be presented to the county court at its first term after the same is delivered to the person whose election is docketing contested, and the same shall be docketed for trial in such court. At the trial of said contest, the said proceedings court shall hear all such legal and proper evidence as may be brought before it by either party, and may, if deemed necessary, require the production of the poll books, certificates and ballots deposited with its clerk, and examine the same. The hearing may be continued by the court from time to time, if it be shown that

notice.

at trial.

-costs;

whom

justice and right require it, but not beyond three months from the day of election. At the final trial of said contest the said court shall declare the true result of said election, and cause the same to be entered on the records of said court. The costs in such case, if the contestant failed to set aside the election, against shall be awarded against the contestant, otherwise, awarded. each party shall pay his own costs, unless it appears to the court that the person returned elected by the commissioners was guilty of fraud or misconduct in the election, or in procuring such return to be made, in which case costs shall be awarded against him in favor of the contestant. The amount of costs to which costs; either party is entitled against the other shall ascertainbe ascertained by the said court, and entered try of, and of record therein, which entry shall have the force of of payment. a judgment and execution, and, if said costs are not paid within ten days thereafter, the clerk of said court may make out and deliver to the sheriff, or one of his deputies, a certified copy of such entries, and said sheriff or deputy shall proceed to collect the same, therein specified, in the same manner as if said copy were a writ of fieri facias against the goods and chattels of the person against whom said costs were awarded. When the result of said election is declared, result and as aforesaid, a certified copy of the order declaring of, when. said result shall, if required, be delivered by the clerk

ment of; en

enforcement

certification

copy.

appeal to

conditions.

of said court to the person declared elected, if such be the result of the trial, and such copy shall be received-legal effect in all courts and places as legal evidence of the result of certified of the election therein declared. Either the contestant or contestee, in such proceeding, shall have the right of appeal to the circuit court of the county from right of the final order or decision of the county court, in said circuit court. proceeding, upon the filing of a bond with good per--bond and sonal security, by the party desiring the appeal, to be approved by said county court, in a sum deemed sufficient by such court, with condition, to the effect, that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him. by the circuit court on such appeal. But such appeal within shall not be granted unless the party desiring the ap- appeal alpeal shall make application for such appeal, and file lowed. such bond, within thirty days from the entering of the final order in said proceeding; and the circuit court may at any time require a new bond or increase the -new penalty thereof when the court deems it necessary. When such appeal is taken to the circuit court, as

what time

bord.

de ΠΟΥΟ on

-case tried hereinbefore provided, the judgment and decision of appeal. the county court shall be vacated and annulled and the circuit court shall try the case de novo.

Acts repealed.

2. All acts and parts of acts coming within the purview of this act, or inconsistent. herewith, are repealed.

Code amended.

(Senate Bill No. 58.)

CHAPTER 81.

AN ACT to amend and re-enact section fourteen of chapter forty-two of the Code of West Virginia, relating to taking land without the owner's consent for purposes of public utility.

[Passed February 21, 1901. In effect 90 days from passage. Approved February 26, 1901.]

Be it enacted by the Legislature of West Virginia:

That section fourteen of chapter forty-two of the code of West Virginia be and the same is hereby amended and re-enacted, so as to read as follows: 14. As to each tract, the commissioners, after for public viewing the same, and hearing any proper evidence commission- which is offered, shall ascertain what will be a just tain and how. compensation to the person entitled thereto for so

Land taken

utility; what

ers to ascer

-form of report.

much thereof as is proposed to be taken, and for damage to the residue of the tract, beyond the peculiar benefits to be derived, in respect to such residue, from the work to be constructed, or the purpose to which the land to be taken is to be appropriated, and make report to the following effect:

We, the commissioners, appointed by the circuit court of county, by an order made on the

day of ——, on the application of respectfully report, that having been first duly sworn, we have viewed the real estate owned by mentioned in the said application, and are of opinion that will be a just compensation for so much of the said real estate as is proposed to be taken by the said applicant, that is to say; (here describe the part to be taken, so as to identify the same with reasonable certainty, which description may be

to property

to

railroads.

by reference to a plat annexed to the report, or in any manner that would be sufficient in a conveyance) as well as for damages to the residue of the said real estate beyond the peculiar benefits which will de derived in respect to such residue from the work to be constructed (or from the purposes to which the part to be taken by said applicant is to be appropriated.) Given under our hands this day of Provided, that if the property is proposed to be taken proviso as by a company incorporated for the construction of a taken railroad, no damage shall be ascertained for the con- construct struction of any farm crossings, fences or cattle guards, or for keeping the same in repair. And in-c -construcall cases when the property taken under this chap- ings by ter is by a railroad company, said railroad company owners. shall permit the owner of the land to construct and maintain suitable crossings thereon; and where such -when railland has been cleared and fenced, said railroad com- road company shall construct and forever maintain suitable construct farm crossings, cattle guards, and fences on both sides crossings, of the land thus taken; and no such railroad shall be used for the transportation of freight and passengers until such crossings, cattle guards and fences are built and constructed.

tion of cross

pany shall

fences, etc.

(House Bill No. 313.)

CHAPTER 82.

AN ACT to amend and re-enact section forty-eight of chapter fifty-four of the Code.

[Passed February 19, 1901. In effect 90 days from passage. Approved February 21, 1901.]

Be it enacted by the Legislature of West Virginia:

That section forty-eight of chapter fifty-four of the Code code be amended and re-enacted so as to read as fol- amended. lows:

48. If any railroad corporation shall be unable to agree with the owner of any real estate for the chase thereof for its corporate purposes, it may such real estate condemned for such purposes the provisions of chapter forty-two of the code; every such railroad corporation owning a line or

Condemna

pur- tion of real have estate for under corporate and railroads.

purposes

of

lines of railroad in this State, shall have the right at any time for the purpose of reducing the grades or curvature, and for the purpose of otherwise improving such line or lines of railroad, to re-locate any part of its line or lines, or build cut-offs in connection therewith, and the provisions of chapter forty-two of the code for acquiring real estate by railroad companies shall apply to such line or lines as re-located, use of for- and to such cut-offs; but this provision shall not be construed as giving authority to any such railroad be aban- company to abandon the use of such line or lines, as doned, when. formerly located, where the continued use thereof

mer located

lines not to

shall be necessary to serve industries or communities thereon. Any such corporation may take and and hold from hold under any grant or ordinance made by a munici

-may take

municipalities, what and how.

pal corporation any interest or right such municipal corporation may have in any street, alley or public ground, and may in exchange therefor, in whole or in part, dedicate or otherwise secure to public use, another street, alley or parcel of ground out of real estate owned by such railroad corporation, whether may con- acquired by purchase or condemnation; or under an agreement with such municipal corporation, may as such new street, alley or same manner as it may conuse. The county court of any

demn land

for new

when.

street, etc., Condemn land for use public ground, in the demn land for its own

-telegraph

poles along

and telephone county may authorize any telegraph or telephone public roads. company, organized under this chapter, to erect and maintain telegraph or telephone poles on any land condemned or used as a public road, but not in such road way as to obstruct any such road. But this section shall not apply to the National or Cumberland road.

-what excepted.

Code amended.

(Senate Bill No. 66.)

CHAPTER 83.

AN ACT to amend and re-enact sections seventy-six, seventy-seven, seventy-eight, seventy-nine, eighty and eighty-one of chapter fifty-four, Code of West Virginia, and to repeal all of section eighty-oneb.

[Passed February 13, 1901. In effect 90 days from passage. Approved February 21, 1901.]

Be it enacted by the Legislature of West Virginia:

That sections seventy-six, seventy-seven, seventyeight, seventy-nine, eighty and eighty-one of the code