AN ACT to require railroad corporations, companies or persons operating with[in] the state of Indiana to give notice, at stations, whether passenger trains are on schedule time or not and affixing a penalty for a violation of the provisions of this act. [Approved March 9, 1889; in force May 10, 1889; S., 1889, p. 279.

7582. Notice of arrival or detention of trains. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That every corporation, company or person operating a railroad within this state shall, immediately after [the] taking effect of this act, cause to be placed in a conspicuous place in each passenger depot of such company located at any station in this state, at which there is a telegraph office, a blackboard at least three feet long and two feet wide, upon which such company or person shall cause to be written, at least twenty minutes before the schedule time for the arrival of each passenger train stopping upon such route at such station, the fact whether such train is on schedule time or not, and, if late, how much.

7583. Violation of act. § 2. That for each violation of the provisions of this act, in failing to report or in making a false report, such corporation, company or person so neglecting or refusing to comply with the provisions of this act shall forfeit and pay the sum of twenty-five dollars, to be recovered in a civil action, to be prosecuted, by the prosecuting attorney of the county in which the neglect or refusal occurs, in the name of the state of Indiana, one-half of which shall go to said prosecuting attorney and the remainder shall be paid over to the county in which such proceedings are had, and shall be part of the common school fund.

NOTES TO CHAPTER 37.

CORPORATIONS-RAILROADS-ORGANIZATION.

ARTICLE 1- BEFORE CONSTRUCTION.

3903. General powers. The fifth subdivision of this section, which confers on a railroad company the right to construct its track across a public highway, imposes on it the duty of restoring the highway to its former state so nearly as possible. A failure to observe this statutory duty is actionable negligence in respect to any person who sustains injury thereby without his fault. While the highway can not be restored, in all respects, to its former condition, it must be so far restored as not to impair its usefulness more than the additional use of it for railroad purposes renders absolutely necessary. Wherefore, a railroad company having left its track nine inches above the surface of the highway, it is liable for the value of a horse, the death of which was caused by extraordinary exertion in pulling a loaded wagon over the obstruction. The fact that the owner of the animal had knowledge of the condition of the crossing, and the further fact that he did not lighten his load when he met the obstruction, it was held, do not per sese constitute such contributory negligence as should bar recovery; E. & T. H. RR. Co. v. Carvener, 113-52.

Under the fifth subdivision of this section a railroad company is fully authorized to build, construct and maintain its track over and across a public highway and to operate its line of road by running locomotives and trains of cars thereon. It becomes, however, the company's duty to restore such highway to its former state or in a sufficient manner not to unnecessarily impair its usefulness. For the non performance of this duty the general laws of the state for the incorporation of railroad companies provide no penalty and prescribe no remedy. It has been held, however, by the supreme court, that the performance of such duty by a railroad company may be compelled by mandate; Cummins v. E. & T. H. RŔ. Čo., 115–419.

This statute prescribes a plain duty. The right to interfere with a highway is coupled with the duty to make it as safe as it was before it was disturbed, or at least, to use reasonable care and skill to do so. This duty is violated if there is a failure to restore it to its former condition, in all cases where the exercise of reasonable care and skill can effect a restoration. A railroad company having been permitted to lay its track along or across a highway, it is bound to the use of every reasonable precaution to prevent injury to those passing along or across such highway or crossing its track that is laid along or across the highway if it fails to exercise a proper degree of care- not only such as is provided by statute but, also, such as is rendered necessary by the character of the obstruction and its location, having reference to a like reasonable exercise of care on the part of those approaching the obstruction-it becomes a nuisance to the extent of its injury to individual rights and renders the company liable in damages for all the consequences; E. & T. H. RR. Co. v. Crist, 116-453.

In a proceeding by one railroad company to condemn and appropriate a right of way across the tracks of another company, under clauses 5 and 6 hereof, the complaint or instrument of appropriation set forth the effort to reach an agreement thus: "having located the line and route of its said proposed extension of road over the lands and premises hereinafter described, and having attempted and failed and being unable to agree with respondent in regard to the terms of, or in regard to the compensation therefor," the plaintiff did take and appropriate said way. (a) The effort to agree must be made on the points of (1) compensation, (2) points of crossing, and (3) manner of crossing and connections. Such effort is a condition precedent to the exercise of the power to appropriate. (b) The instrument of appropriation must affirmatively show the agreement, or failure to agree on each of these three points and, therefore, in this case was insufficient. (c) The word "terms," as used in the instrument of appropriation, is not broad enough to cover the three essential points. () There may be a waiver of an agreement or of an effort to agree, but such waiver should be distinctly averred. (e) An appeal is not a waiver of any objection reasonably and appropriately made; L. S. & M. S. Ry. Co. v. C., W. & M. Ry. Co., 116-580.

3904, 3905. Crossing railroad track. The emergency clause of the act of 1873, as follows: Whereas there is no law now in force upon the subject of keeping railroad crossings in repair, and providing for the expense thereof, an emergency" etc. (S., 1873, 186) plainly expresses the intention that the provisions of these sections should apply to all railroad crossings which thereafter might be maintained in the state, and that all railroad companies interested in crossings should be required to cooperate in maintaining and keeping such crossings in proper repair. For an injury resulting from a failure to perform this statutory duty both companies interested in the crossing are liable; I., B. & W. Ry. Co. v. Barnhart, 115-408.

3907. Proceedings to appropriate. When proceedings to appropriate a right of way and for the assessment of damages sustained by property owners along the right of way, or abutting on a street upon which the proposed road is to be located, are resorted to, future necessity, as well as the present needs of the company, is conclusively presumed to be taken into consideration. So, when damages are assessed, the assessment includes all damages resulting from the construction and all necessary and proper use of the right of way on the highway or street by the railroad company for railroad purposes. This will not include damages resulting from the negligent use of such highway or street by the company, or from an unnecessary change of an established grade of a street, or negligently or unnecessarily obstructing the same. It does include all damages resulting to the property owner from the legitimate and necessary use for railroad purposes, including the right to lay necessary additional tracks or side tracks. It is not necessary, therefore, nor was it contemplated by this statute, that as the future business and necessity of the company demand an additional switch, or even an additional track from one to another station, that the company shall file an additional instrument of appropriation and have additional damages assessed resulting to the property abutting on the right of way or street along which such additional track or switch is to be located by reason of its construction. So, where a road is located upon a street, instruments of appropriation are filed and damages assessed to the abutting lot owner, and the amount awarded is paid to and accepted by him, there can not be an after recovery of damages by reason of the location of a side track or switch, on the ground of its being an additional burden not included in the original appropriation — the complaint in the action to recover such damages not alleging the negligent construction or the maintenance of the side track in an improper manner, unnecessarily obstructing the street; White v. C., St. L. & P. RR. Co., 122-329.

An application was made for a writ for the assessment of damages, on the ground that a railroad company had located and was about to proceed with the construction of its road across the petitioner's land, without having made or tendered any compensation for the accruing damages. A judgment for damages under the writ and in pursuance of the application was rendered and reversed for the reason that the description of the land appropriated was not sufficiently precise, under the statute (Midl. Ry. Co. v. Smith, 109-488). On remand it was proper for the trial court to grant leave to amend the description of the land appropriated, to conform to the description in the application and writ. Proceedings under the eminent domain acts are amendable in matters of description, so long as they remain in fieri; Midland Ry. Co. v. Smith, 125-510; Steele v. Hanna, 117-333.

A railroad company instituted proceedings to appropriate real estate, the property of relator, and an action was brought on the official bond of the clerk of a circuit court, to recover the amount the railroad company paid to the clerk as the sum assessed by the appraisers, as damages. Relator in the case at bar, being dissatisfied with the amount of the award, instituted suit against the company and recovered judgment for a sum greater than the sum awarded. From this judgment the company appealed, perfecting its appeal, and the cause was pending in the supreme court when the present action was brought, tried and determined. After the rendition of the judgment against the company and on appealing it paid to the clerk of court the excess of the judgment over the original award of damages, entered upon and took possession of the real estate appropriated, built its railroad thereupon and, thereafter, continued to occupy the land to the exclusion of relator. (1) Relator was entitled, on proper demand, to the money so paid to the clerk of the court. On a refusal to pay it he could, therefore, maintain an action on the bond of the clerk, against such clerk and his sureties, for its recovery. (2) The payment to the clerk of the damages awarded operated only to give the company a license to take possession subject to the result

of future litigation and determinable on its failure to pay the compensation found just on final trial. (3) The fact that the railroad company notified the clerk not to pay over the money to the relator constituted no defense to the action; Meyer v. State, ex rel., 125-336.

ARTICLE 2 - AFTER SALE.

3947. Franchises pass — Old stockholders released. These sections provide that in case of the sale of any railroad by virtue of any mortgage foreclosure etc., the purchasers thereof etc. may form a corporation etc., with power to operate the road etc. Recognizing the fact that stock in an insolvent railroad company, the property of which has been sold under foreclosure or other judicial proceedings, is worthless, this statute was intended to protect subscribers by cancelling all obligations to pay unpaid subscriptions to such stock in all cases where there shall not have been an adjustment by agreement or compromise. The proviso was intended to and does protect all subscribers to stock in railroad companies; Board etc. v. State, ex rel., 114-87.

RAILROADS

AN ACT to amend section one of an act entitled "An act to amend the first section of an act entitled 'An act to empower railroads to build branches to neighboring coal mines, approved December 19, 1865,' approved May 15, 1869, the same being section 4014 of the Revised Statutes of 1881, and declaring an emergency. [Approved and in force March 5. 1889; S., 1889, p. 100.

7584. [4014] Branches. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section one of an act entitled "An act to amend the first section of an act to empower railroads to build branches to neighboring coal mines, approved December 19, 1865," approved May 15, 1869, the same being section 4014 of the Revised Statutes of 1881, be and the same is hereby amended to read as follows, to wit: Section 1. Any railroad company organized under the laws of this state is hereby authorized to build and operate, in addition to the main line authorized by its charter or articles of association, branch railroads from any point or points on its main line, to or through any adjacent mineral lands containing coal, iron, or building stone, not, however, exceeding in distance fifty miles from the nearest point on said main line: Provided, however, that no railroad company shall build any such branch railroad if the owners of one-third its stock object thereto.

7585. Emergency. § 2. An emergency is hereby declared to exist for the immediate taking effect of this act; it shall, therefore, take effect and be in force from and after its passage.

SEC.

7586. Township aid.

ARTICLE 5— PUBLIC AID.

SEC.

7587. Emergency.

AN ACT to amend section one (being section 4045 of the Revised Statutes of Indiana of 1881) of an act entitled "An act to amend the 1st and 14th sections of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in and making donations to railroad companies,' approved May 12, 1869, and amended by an act entitled 'An act to amend the 1st, 2d, 3d, 4th, 8th, 13th and 17th sections of an act entitled 'An act to authorize aid to the construction of railroads by counties and townships taking stock in and making donations to railroad companies,' approved March 17, 1875, and declaring an emergency,' approved March 8, 1879, and declaring an emergency. [Approved and in force March 2, 1889; S., 1889, p. 82.

7586. [4045] Petition for township aid— Appropriation — Aid for reconstruction. SEC. 1. Be it enacted by the General Assembly of the State of Indiana, That section one of the above entitled act be amended to read as follows, to wit: Section 1. Whenever a petition shall be presented to the board of commissioners of any county in this state, at any regular or special session thereof, signed by twenty-five freeholders of any township of such county, asking such township to make an appropriation of money