sent of the owners thereof, shall remain in such owners, subject to the use for which it is taken."

$198. When the route of a railroad lies partly in an unorganized township the notice for application to acquire the right of way through the school section (section 16) must be served upon the school commissioners of the county. The damage assessed shall be paid into the school fund of the county for the use of the inhabitants of the township in which the section may be situate. As soon as the township has been organized the money shall be paid over to the treasurer thereof.1 The special consent of the general assembly must be secured in order to acquire the right of way through land belonging to the state for the use of any benevolent institution of the state. The courts have no jurisdiction over such cases. The twenty-eighth general assembly exercised this function of legislation in granting to the Chicago and Pacific railroad company a conditional right of way over lands of the Northern Illinois Hospital and Asylum for the Insane. In a case involving the construction of a charter embodying the right of way through state lands the court held3 that the language of a statute incorporating a railroad company might be sufficiently comprehensive to embrace any property owned by the state, still it will not be construed to include property used by the state for a specific purpose. This could not be the intention of the legislature, and all statutes are to be construed according to it.

1 Gross' Statutes, vol. i, chap. 92, sec. 27.

2 Ibid. sec. 28.

3 St. Louis, Jacksonville and Chicago R. R. Co. v. Trustees, 43 Ill. 303.

§ 199. The fee simple to the streets of a city is generally vested in the municipal corporation. The right of way to enter a city must be secured from the municipal government. This sometimes occasions vexatious delay, but has proved no serious obstacle to railway enterprise.

§ 200. Such is the present mode of procedure in acquiring the right of way in Illinois for a railroad. The intricacies of the old system and some light upon the general subject may be derived from the decision in the case of the Peoria and Rock Island R. R. Co. v. Warner. The opinion of the supreme court, delivered by Justice THORNTON, was filed June 28, 1872. The following syllabus is mainly from the Chicago Legal News, of July 13, 1872:

$201. "This was an action of trespass against the railroad company. The defendant justified under its charter, and the act of 1845, entitled 'Right of Way.' The only averment in the plea as to notice to the party whose land was condemned was this: "The defendant avers that said plaintiff was present with said commissoners before their report was signed, and had an opportunity of being heard upon his claim for damages,' and the court held that there was no sufficient averment as to notice.

§ 202. That the party whose land is to be taken has the right to reasonable notice of the time and place where and when application will be made for the appointment of the persons who are to assess the damages.

§ 203. That it was the intention of the legislature

'Moses v. Pittsburg, Ft. Wayne and Chicago R. R. Co. 21 III.

that notice should be given under the act of 1845. The court cites authorities to show that in appeals and similar cases, where the statute giving the right was silent as to notice, that notice was required to be given.

§ 204. That the legislature has repeatedly recognized the validity of the act of 1845; that the act of 1852 contains no express repeal of it, and is amendatory of it. That it was enacted in 1869 that the provisions of both acts should apply to all proceedings for the condemnation of lands; that notice must be given in accordance with the act of 1852.

$ 205. As the sole object of section nineteen was to continue the reservation of power in the legislature to fix the routes and termini of all roads, before the corporations should exercise the right of eminent domain. It has no application to a company whose termini are fixed by its charter."

206. For the convenience of those who may wish to make thorough and original investigation on this subject, the following list of Illinois authorities is appended. The subject has been extensively discussed by many able legists and jurists.1

1 Gillinwater v. Mississippi and Atlantic R. R. Co. 13 Ill. 1; Newhall v. Galena and Chicago Union R. R. Co. 14 Ill. 273; Illinois Central R. R. Co. v. Rucker, 14 Ill. 353; Illinois and Wisconsin R. R. Co. v. Van Horn, 18 Ill. 257; Low v. Galena and Chicago Union R. R. Co. 18 Ill. 324; Chicago and Milwaukee R. R. Co. v. Bull, 20 Ill. 218; Jacksonville and Savannah R. R. Co. Co. v. Kidder 21 Ill. 131; Tonica and Petersburg R. R. Co. v. Unsicker, 22 Ill. 221; same v. Roberts, Ibid. 224; Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 203; Rock Island and Alton R. R. Co. v. Lynch, 23 Ill. 645; Shute v. Chicago and Milwaukee R. R. Co. 26 Ill. 436; Trustees et al. v. Chicago and Rock Island

R. R. Co. 14 Ill. 314; Johnson v. Joliet and Chicago R. R. Co. 23 Ill. 202; City of Chicago v. Larned, 34 Ill. 203; Rees v. City of Chicago, 38 Ill. 322; City of Chicago v. Laflin, 49 Ill. 172; People v. Williams, 51 Ill. 63; Harwood v. St. Clair Draw Co. 51 Ill. 130; Hessler v. Drainage Commissioners, 53 Ill. 105; Cooley on Constitutional Limitations, chap. 15; Potter's Dwarris on Statutes, chap. 11; Redfield on Railway Law, 239.

9

§ 207. Preliminary survey.

208. Map and profile: Record of the same.
209. Donations and purchases.

210. Width of road-bed: Trees.

211. Gravel, etc. for grading-how acquired.

212. Crossing streams and streets: Canals.

213. Consequent duties of the railroad company.

214. Railway construction and municipal authorities.
215. Intersection with existing railroads.

216. Railway comity: State and national law.

217. Providing general conveniences for business.

207. The first step in the way of railway construction is to make a critical survey, and determine the exact route of the road. In ordinary cases such surveying would be trespass. The law provides that a railway company, if duly organized, may cause such examinations and survey for its proposed railway to be made as may be necessary to the selection of the most advantageous route.1 The officers, agents or servants of the company are authorized to enter upon the lands of any person or corporation, subject, however, to

1 Gross, vol. ii, page 309, sec. 180.