Power of directors.

located at such place near said village as the directors may deem proper, and to be so erected and constructed as to make a passage for boats and other crafts navigating said river, either by canal and lock or slack water navigation, or both, over "salt riffle,” and “grand dam riffle," and the rapids between the two, and at all times to keep said dam, canal and lock in a condition to pass without unnecessary delay, all such boats and other crafts, free of expense to the owners thereof; and any person who shall be so detained, shall be entitled to recover of the owners of the same, or of the said Niles hydraulic company, the damages which he shall prove he has sustained by such detention, before any court of competent jurisdiction, with the costs of suit."

Sec. 4. Strike out section ten, and insert the following in lieu thereof:

"Sec. 10. The directors of said company shall have power to contract with the owner or owners of any land which may be used or flowed by reason of the construction of said dam, canal, locks and races, or which may be necessary to carry out the object of said corporation in the improvement of the St. Joseph river, the creating of a water power and obtaining the necessary land on which to use the same, and to pay such owner or owners the damages they have sustained; and also to enter upon, take and use any other lands which may be necessary for the purposes aforesaid, after the necessity for how esti using such land and the compensation to be made therefor, shall have been ascertained and paid, as hereinafter provided. And if said company cannot agree with any such owner or owners of land, it shall be lawful for the parties to appoint three disinterested persons, residents of the county, to estimate and appraise such damages; and every such appraisement shall be reduced to writing and signed by the appraisers or a majority of them, and a duplicate thereof shall be furnished to each of the parties. The expense of the appraisement shall be paid by said company."

Damages,

austed.

Parties may

appoint ap

praisers.

Sec. 5. Strike out section eleven, and insert the following in lieu thereof:

4

of

"Sec. 11. Whenever such company shall be unable to agree with the owner or occupants of such lands, to be used for the purpose making said improvements, or if they cannot agree upon appraisers,

tition court

for appoint

com'rs, &c.

described in

as aforesaid, or if said appraisers so agreed upon shall fail to make Co. may petheir award within the stipulated time, or if the owner or occupant of of record any such lands shall be a married woman, minor, insane person, an inent of idiot, or a non-resident of this State, having no known agent with power to sell, the directors of such company may apply by petition to any court of record within the county of Berrien, at any session thereof legally held, for the appointment of three commissioners to ascertain and determine whether it be necessary to the public interest to take such lands for the proposed improvements; and if so, to ascertain and determine the amount of damages therefor; such petition shall state that such company have been unable to agree with certain owners or occupants of certain lands, necessary for making said improvement, as to the necessity of taking such lands for the purposes of such improvement, or as to the amount of damages to Lands to be be allowed therefor; and it shall be necessary in such petition to de- petition. scribe particularly the lands, and if known, the names of the owners; and if it shall appear to the court that previous public notice of such application has been published for three successive weeks in a newspaper published in said county, or if none in the county, then in the paper published nearest thereto, then such court shall forthwith, or as soon as the business of such court will permit, proceed to hear and decide upon such application, and may hear any reason which they may deem valid for or against the appointment of such commissioners, or of any commissioner which said court may name, and may hear any evidence applicable thereto; and if such court shall determine to appoint such commissioners, such court shall appoint three disinterested freeholders of said county, none of whom shall be residents of or owners of real estate in the township of Niles; and Cons to if it shall not be made to appear to such court that notice of such ers. application shall have been given as aforesaid, the hearing shall be adjourned either till the next term thereof, or to such other day as shall be deemed proper that such notice shall be given, proceed with the hearing, and appoint commissioners as aforesaid.”

Sec. 6. Strike out section thirteen, and insert the following in lieu thereof:

Publication of notice.

be freehold

commiss'rs.

"Sec. 13. Before such commissioners shall enter upon the duties Oath of of their office, they shall be sworn before some officer authorized to

Damages, how ascer

determined.

administer oaths, faithfully and impartially to perform their duties as such commissioners, which oath shall be in writing, and shall be returned into such court with the report of their proceedings; and shall thereupon, at the request of the directors of such company, and at their expense, give notice of the time when they will proceed to examine the plan of said improvements and determine the necessity of taking the lands of any person or persons, and to ascertain and determine the damages therefor; which notice shall be published in a newspaper published in such county, or if none in the county, then the paper published nearest thereto, for three successive weeks before the time appointed for making such examination and determintion; and at or before the time appointed in such notice, the directors of such company shall furnish to the said commissioners a map and description, by reference thereto, of all the lands the necessity for taking which and the damages for which they may wish said tained and commissioners to determine on such examination, together with the names and residence of the owners thereof or persons interested therein, as far as the same can be ascertained; and if it shall appear to said commissioners that notice in writing has been given by said company or any officer or agent thereof, to each of the owners or persons interested therein, residents of the said county, of the said examination and the objects thereof, by delivering the same to such persons, or leaving the same with some member of his family at his place of residence, ten days previous to the time of the examination, they shall proceed to examine so much of said lands as shall have been mentioned in the notice published by them, and shall hear any reasons which may be deemed pertinent, which may be urged for or against the necessity of constructing such improvement, or the necessity of taking therefor any lands of any person; and they may take any testimony having a bearing upon the question of such necessity, and in respect to the amount of damages to be allowed to any person or persons for the taking of any such lands for the purposes aforesaid; and each of said commissioners is hereby authorized to administer all necessary oaths to witnesses, in the taking of any affidavits touching any matter before them, and may issue subpoena for witnesses with the same effect as courts of law; and all witnesses shall be liable to the same penalties for disobedience as for the like

how ascer

determined.

disobedience to subpoenas issued by a court of law, and may be fined Damages; or committed by such commissioners for contempt as in courts of tained and law; and such examination may be continued as long as may be necessary, or adjourned, as to them shall seem just, not however to exceed ten days, without the consent of both parties; and if the said commissioners shall ascertain and determine that such improvement is not necessary for the public interest, or that the lands of any individual are not necessary to be taken for any part of the said improvement, they shall so certify, in writing, to the court by which they were appointed; and said company shall not be allowed to take any such lands of individuals, unless by agreement with the owners and occupants thereof; but if said commissioners shall determine that it is necessary to the public interest to take any lands for the purposes aforesaid, they shall proceed to ascertain, appraise and determine the amount of damages to the respective owners and occupants of such lands in consequence of the taking of any such lands for the purposes aforesaid, describing with convenient certainty each separate parcel, with the amount of lands to be taken by said company from each parcel, and the name and residence of each owner, as far as the same is known. They shall keep full minutes of their proceedings, with the substance of such evidence taken before them, and all the affidavits which shall be used before them; and they or a majority of them shall make and sign a report of all their doings aforesaid, accompanied by all proper exhibits and a map, with references. thereto, and shall in such report state the several amounts of damages which shall have been allowed by them to each owner and occupant in respect to each separate parcel upon which an appraisal shall have been made, stating separately the sums allowed to parties unknown, of the lands for which such damages are allowed, and also all the lands claimed by said company to have been necessary to be taken, and which such commissioners shall have decided to be necessary, and shall file the said report with the clerk of the court by which they were appointed, within twenty days after completing such appraisal. The decision of a majority of such commissioners shall be valid, but all shall take part in the hearing; such decision shall be final and conclusive upon all such persons who shall not, within fifteen days after the filing such report, make and file with the clerk of

Dan ages; such court a motion to set aside said report so far as it respects the

bow ascer

determined.

tained and lands in which such person is interested, and serve a copy thereof upon one of the director of such company, if to be found in the county; and if such director cannot be found in the county, then such filing shall be sufficient notice to the company."

Compensa

Sec. 7. Add eight new sections to stand as sections fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one and twenty-two: "Sec. 15. Said motion shall be heard at the next session of such court, unless for good cause shown the hearing shall be continued; and on such hearing either party may introduce testimony in addition to that returned by the commissioners; and said court may confirm or annul the decisions of such commissioners upon the matter in question, or may order a re-appraisal of such particular piece or parcel, and fix the time therefor. In making such re-appraisal, the commissioners shall proceed as herein before directed as near as may be; and their report thereof made as aforesaid, in respect to the particular lands in question; and such report shall be confirmed or annulled by said court, as above provided in respect to the first report; and such court may order a re-appraisal as often as they may deem necessary, till the same shall be confirmed by said court.

"Sec. 16. Said commissioners shall at any time thereafter, at the request of the directors of such company, and subject to the provisions above contained, proceed to ascertain and determine the necessity of taking the lands of any person or persons, and the amount of damages therefor, or any other portion of such improvement upon which such damages have not been ascertained; and they shall continue to be the commissioners for that purpose, in respect to said improvement, until all such questions in reference thereto (in such county) shall have been ascertained, unless the court by which they were appointed shall, on cause shown, remove them or any of them; in which case, and in case of the death or continual absence from the State of any of them, such court shall appoint another or others to fill such vacancy.

"Sec. 17. Such commissioners shall be entitled to receive two doltion of com- lars per day, for the time actually spent by them in the performance missioners. of their duties, to be paid by said company; and the person appoint

ed to attend to the interest of incompetent or absent parties, as pro