2 April 1868 § 4. see, to each and all of the several canals which connect mediately or immediately P. L. 53. with the canals so leased, sold or disposed of. Ibid. § 5. Annual meetings. 11 April 1868 § 1. P. L. 82. 12. It shall be lawful for any of such canal companies to alter the time of their of each year. respective annual meetings of stockholders to the second Tuesday in February 13. It shall and may be lawful for any canal company or companies, created by or existing under the laws of this commonwealth, from time to time, to enter into any contract or contracts with any other canal company or companies charinto contracts with tered by, or of which the canal or canals is or are authorized to extend into this other companies. Power to enter 14 April 1870 § 1. P. L. 75. Canal and navigation companies may purchase the stock or bonds of or become consoli dated with any railroad company, and vice versa. 17 April 1871 § 1. P. L. 239. Act 2 April 1868, $4, not to be deemed repealed as to canals on the Susquehanna. 5 May 1855 § 1. P. L. 450. How canal and navigation companies may obtain materials, &c." 19 Feb. 1849 § 1. P. L. 83. May enter upon &c. commonwealth, for the purpose of enlarging and improving their said canal or canals, and for the interchange of traffic, upon such terms and conditions as may be agreed upon with the company or companies owning the same, and to use and operate such canals in accordance with such contract, and to purchase and hold the stock and bonds of either of such companies: Provided, That the canals of the companies so contracting shall be either directly, or by means of intervening canals, connected with each other; and all acts and parts of acts inconsistent with this act are hereby repealed, and all such contracts now existing are hereby ratified. 14. It shall be lawful for any canal or navigation company, incorporated by this commonwealth, to purchase and hold the stock and bonds and to lease the road and property of, or become consolidated and merged with, any railroad company so incorporated, and for any such railroad company to purchase and hold the stock and bonds, and to lease the canal, navigation and property of, or become consolidated and merged with any such canal or navigation company, in the same manner as such purchases, leases, consolidation and merger are now allowed by law by and between railroad companies; and all the provisions of existing acts relative to such purchases, leases, consolidation and merger by and between railroad companies are, whenever applicable, hereby extended so as to embrace the purchases, leases, consolidation and merger hereby authorized. 66 15. The act approved April 14th, 1870, (i) entitled "A supplement to an act, entitled An act relating to railroad and canal companies,' approved April 11th, 1864," shall not operate or be deemed to repeal or affect the provisions contained in the 4th section of the act, approved April 2d, Anno Domini 1868,(k) entitled an act extending to canal companies the privileges heretofore conferred on railroad companies, and to authorize them to deepen, improve their canals, and provide improved facilities for transporting property," so far as relates to the canals situate on the Susquehanna river and its tributaries, and canals connected directly therewith; and that the said fourth section shall to that extent, and to said canals, be and continue in full force and effect. II. Of the construction and improvement of canals. 16. All incorporated canal and navigation companies shall have the same rights to obtain lands and materials for the repair, enlargement or improvement of their works as are conferred upon railroad companies, for the purposes therein named, by the 10th and 11th sections of the act of 19th of February 1849, entitled "An act regulating railroad companies"; (1) the said navigation and canal companies paying for the said land and materials as provided for in said act: Provided, That this section shall not authorize any canal or navigation company to occupy any street or alley not now occupied in any incorporated city or borough in this commonwealth. 17. The president and directors of such company shall have power and authority by themselves, their engineers, superintendents, agents, artisans and workmen, to survey, ascertain, locate, fix, mark and determine such route for a railroad as they and occupy lands, may deem expedient, not however passing through any burying-ground or place of public worship, or any dwelling-house in the occupancy of the owner or owners thereof, without his, her or their consent, and not, except in the neighborhood of deep cuttings, or high embankments, or places selected for sidelings, turnouts, depots, engine or water stations, to exceed sixty feet in width, and thereon to lay down, erect, construct and establish a railroad, with one or more tracks, with such branches or lateral roads as may be specifically authorized, and with such bridges, viaducts, turnouts, sidelings or other devices as they may deem necessary or useful between the points named in the special act incorporating such company, commencing at or within, and extending to or into any town, city or village, named as the place of beginning or terminus of such road; and in like manner, by themselves, or other person by them appointed or employed as aforesaid, to enter upon and into, and occupy (m) all land on which the said railroad or depots, warehouses, (i) Supra 14. (k) Supra 11. (1) See infra 17-18; the greater part of the 10th section of the act of 1849 is inapplicable to canal companies; and it may be doubted whether the act of 9 April 1856, P. L. 288, supplementary to the act of 1849, has been extended to them. See tit. "Railroads." (m) Their right is merely an easement, not an interest in the land. Western Pennsylvania Railroad Co. v. Johnston, 59 P. S. 290, and cases there cited. P. L. 83. offices, toll-houses, engines and water stations, other buildings or appurtenances 19 Feb. 1849 § 1. hereinbefore mentioned may be located, or which may be necessary or convenient for the erection of the same, or for any purpose necessary or useful in the construction, maintenance or repairs of said railroad, and therein and thereon to dig, excavate and embank, make, grade and lay down and construct the same; and it shall And on adjoining in like manner be lawful for such company, their officers, agents, engineers, con- premises to obtain tractors or workmen, with their implements and beasts of draft or burden, to enter upon any lands adjoining or in the neighborhood of their railroad, so to be constructed, and to quarry, dig, cut, take and carry away therefrom, any stone, gravel, clay, sand, earth, wood or other suitable material necessary or proper for the construction of any bridges, viaducts or other buildings, which may be required for materials. tract. the use, maintenance or repairs of said railroad: Provided, That before such com- Compensation to pany shall enter upon or take possession of any such lands or materials, they shall be first made or make ample compensation to the owner or owners thereof, or tender adequate security tendered. security therefor: Provided further, That the timber used in the construction or Timber to be obrepair of said railroad shall be obtained from the owner thereof only by agreement tained only by conor purchase: [And provided further, That whenever any company shall locate its road in and upon any street or alley, in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain, by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this act.] (n) Ibid. § 11. 18. When the said company cannot agree with the owner or owners() of any lands or materials for the compensation proper for the damage(p) done, or How damages to likely to be done to or sustained by any such owner or owners of such lands be assessed. or materials, which such company may enter upon, use or take away, in pursuance of the authority herein before given, or by reason of the absence() or legal incapacity of any such owner or owners, no such compensation can be agreed upon,(r) the court of common pleas of the proper county, on application thereto by petition, (s) either by said company, or owner or owners, or any one in behalf of either, shall appoint(t) seven discreet and disinterested free- Viewers to be holders of said county, neither of whom shall be residents or owners of property appointed. upon or adjoining the line of such railroad, and appoint a time, not less than twenty nor more than thirty days thereafter, for said viewers to meet at or upon the premises where the damages are alleged to be sustained, of which time and place ten days' notice shall be given, by the petitioner, to the said viewers and the other party;(u) and the said viewers, or any five of them, having been first duly Their duties. sworn or affirmed, faithfully, justly and impartially to decide, and true report to make concerning all matters and things to be submitted to them, and in relation to which they are authorized to inquire in pursuance of the provisions of this act, and having viewed the premises, they shall estimate and determine the quantity, quality and value of said lands so taken or occupied, or to be so taken or occupied, or the materials so used or taken away, as the case may be, having a due regard to, and (n) See supra 16. (6) Tenants for years are owners within the purview of the act. Turnpike Road v. Brosi, 22 P. S. 29. Brown v. Powell, 25 Ibid. 229. North Pennsylvania Railroad Co. v. Davis, 26 Ibid. 238. But a groundlandlord is not such owner. Voegtly v. Pittsburgh and Fort Wayne Railroad Co., 2 Gr. 243. See Workman v. Mifflin, 30 P. S. 362. (p) They are liable to consequential damages no further than provided by the act of incorporation. Monongahela Navigation Co. v. Coons, 6 W. & S. 101. Henry v. Pittsburgh and Allegheny Bridge Co., 8 Ibid. 85. Monongahela Navigation Co. v. Coon, 6 P.S.379. New York and Erie Railroad Co. v. Young, 33 Ibid. 175. Patten v. Northern Central Railway Co., Ibid. 426. Bald Eagle Boom Co. v. Sanderson, 32 Sm. 402. But they are liable for all injuries which are the direct and immediate consequence of the construction of the canal, to the entire tract of land Union through which it may pass. Watson v. Pittsburgh (q) That is, beyond the reach of process. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. (r) They cannot petition for the appointment of viewers, until they have applied to the owner, and endeavored to agree with him as to the compensation. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. Neal v. Pittsburgh and Connellsville Railroad Co., 2 Gr. 137. They must bring their case within the act. Cleveland and Pittsburgh Railroad Co., 10 Pitts. L. J. 74. (s) The petition should set forth the names of the owners, the fact that they cannot agree, or that they are absent or legally incapacitated to contract; and must be verified by affidavit. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. It is amendable. Pennsylvania and New York Canal and Railroad Co. v. Bunnell, 81 Ibid. 414. (t) The owners should have notice of the application for the appointment of viewers. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. (u) Notice must be given to each owner of the time and place of meeting on his premises; but they may adjourn from day to day. Proof of notice should be filed with the viewers, and returned with their report. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. P. L. 83. 19 Feb. 1849 § 11. making just allowances for the advantages which may have resulted, or which may seem likely to result, to the owner or owners of said land or materials, in consequence of the making or opening of said railroad, and of the construction of works connected therewith; and after having made a fair and just comparison of said advantages and disadvantages, they shall estimate and determine whether any, and if any, what amount of damages (v) has been or may be sustained, and to whom payable, and make report thereof to the said court;(w) and if any damages be awarded, and the report be confirmed by the said court, judgment shall be entered thereon:(x) and if the amounts thereof be not paid within thirty days after the entry of such judgment, execution may then issue thereon as in other cases of debt, for the sum so awarded, and the costs and expenses incurred shall be defrayed by the said railroad company; and each of the said viewers shall be entitled to one dollar and fifty cents per day for every day necessarily employed in the performance of the duties herein prescribed, to be paid by such railroad company. Judgment to be entered on award of damages. And execution to issue. Fees of viewers. 16 July 1842 § 3. P. L. 395. Judgments for damages to carry costs. 6 May 1844 § 5. P. L. 565. ages to be ap 19. In all cases for the assessment of damages caused by the construction of canals or railroads by incorporated companies in this commonwealth, if the viewers or a jury shall find for the plaintiff any sum of damages, such award or verdict, on the rendition of judgment, shall carry costs, unless there may be some provision in the act incorporating such company to the contrary. 20. In all cases where [by] acts creating railroad or canal companies, security to the owners of lands through which any canals and railroads may pass, is required Security for dam- to be given, and approved by any of the courts in the counties where such lands lie, said security may be given and approved of by any two of the judges of said courts during vacation: Provided, That at least five days' notice shall first be given to the owners of such lands, or their known agent or attorney, of the time and place of offering such security, and the names of the securities to be offered. proved by two judges. Notice of offering the same to be given. 5 May 1841 § 13. P. L. 247. Lateral railroad acts extended to the construction of canals. 12 April 1855 § 1. P. L. 220. over canals. 21. All the provisions of the act of the 5th of May 1832, entitled "An act regulating lateral railroads," and the supplements thereto, (y) are hereby extended to the construction of canals, not exceeding in width the canals of this commonwealth : Provided, That no canal constructed under the authority of this act shall drain the water from any canal or pool with which the same may be connected; and all such canals shall be so constructed as not to permit the water conveyed into the same to be lost or wasted by leakage or drainage. 22. The provisions of the laws of this commonwealth relative to the erection of bridges over rivers, creeks or rivulets, be and the same are hereby extended to Erection of bridges the erection of bridges over canals and railroads: Provided, That bridges erected under the provisions of this act shall not obstruct any canal or railroad over which such bridge may be erected: And provided further, That nothing in this act shall release railroad or other companies, or the commonwealth, from the requirements of existing laws. 26 March 1870 § 1. P. L. 75. Canal companies may construct lateral railroads. 21 March 1842 § 8. P. L. 145. 23. It shall be lawful for any canal company, now or hereafter incorporated by or under the laws of this commonwealth, to construct and operate lateral railroads and branches therefrom, not exceeding respectively ten miles in length, with the necessary appurtenances, from suitable points on the line of their canals to any mines, quarries or other desirable points, for the procurement of traffic for said canals; and shall have and enjoy, and be subject to all and singular the provisions and restrictions of an act of assembly regulating railroad companies, approved the 19th day of February 1849, (≈) and the supplements thereto, necessary for the location, construction and operation of the said roads and branches. III. Actions by and against canal companies. 24. When any action is commenced by any person or persons, or bodies corporate, against an incorporated railroad or canal company, in any county in which the corporate property of such company is wholly or in part situated, it shall be lawful, if served where offi- the president, treasurer, secretary or chief clerk of such corporation does not reside How process cers not found within the county. or cannot be found in such county, for the sheriff, or other officer to whom such process is directed, to serve the same on any manager or director of such company being in such county, and the service so made shall be deemed sufficient; and in case no director or manager can be found in the county, it shall be lawful for (?) An assessment of a gross amount of damages, on the petition of several joint owners, is regular. Pittsburgh and Steubenville Railroad Co. v. Hall, 25 P. S. 366. (w) It should appear on the face of the report, what is the quantity, quality or value of the lands or materials to be taken. And that there has been a comparison of the advantages and disadvantages likely to result, should be certified, though it is unnecessary to specify them in detail. The amount of damages, and to whom payable, should be distinctly stated. And the report should exhibit the grounds of the assessment, in order that the court may judge whether or not they have made an allowance for consequential damages. The supreme court cannot cor rect an error not apparent on the face of the report. Reitenbaugh v. Chester Valley Railroad Co., 21 P. S. 100. And see Pennsylvania Railroad Co. v. Bruner, 55 Ibid. 318. (x) When the damages have been assessed, and judgment entered on the report of the viewers, the right of the land-owner to recover them is completely settled, and he is entitled to execution upon it, even though the company have not taken possession, and may desire to change the route. Neal v. Pittsburgh and Connellsville Railroad Co., 31 P. S. 19; s. c. 2 Gr. 137. (y) See tit. " Railroads," and see infra 23. such officer to go into an adjoining county to serve the process as hereinbefore 21 March 1842 § 8. stated.(a) P. L. 145. P. L. 395. canal companies may be reinoved 25. It shall and may be lawful for either party, in any suit or action (b) now 14 April 1834 § 1. pending or that may hereafter be brought in any of the courts of this commonwealth, by or against any canal or railroad company, to remove(c) the same into the court Suits by or against of any other adjacent county through which the canal or railroad of such company is not located, which suits, so removed, shall be proceeded in by the proper court, into adjacent in like manner, and subject to like rules and proceedings as if it had remained in county. the court in which it was originally commenced, and upon final judgment, testatum executions may issue as in other cases: Provided, That the party so removing shall Party removing to first take and subscribe an oath or affirmation, to be filed of record with the cause, make affidavit. that such removal is not made for the purpose of delay, but because he firmly believes a fair and impartial trial cannot be had in the county through which such to remove. P. L. 896. canal or railroad may pass: And provided further, That the provisions of this act Litigation of right shall not be so construed as to interfere with the existing laws, relative to the assessment of damages to property, occasioned by the construction of such canals or railroads, nor with the right and privilege heretofore granted to any canal or railroad company, to have suits against them tried in any particular county or counties. 26. All and every suit or action now pending, or that may hereafter be brought, 14 April 1838 § 5. by or against any canal or railroad company, in any of the courts of this commonwealth, and which now are or hereafter shall be removed into a court of any other How costs and exadjacent county, by virtue of the act of the 14th April 1834, relative to suits brought penses of actions by and against canal and railroad companies, the costs and expenses thereof shall removed to be be borne and paid by the county in which suit or action was brought; and in all cases where the venue of any suit now depending has been or may be changed, and where the venue of any suit hereafter to be instituted may be changed, and where suits are directed to be brought in any particular county, the costs of summoning the jury and the pay of the jurors shall be borne by the county in which the cause of action originated. borne. Ibid. § 6. To be recovered 27. It shall and may be lawful for the county commissioners of the county into which any suit or action now is or hereafter may be removed, by virtue of the above-recited act, to ask, demand, sue for, recover and receive of the commission- from the county ers of the county from which the same may or shall be removed, all the costs and from which the expenses incurred by the county to which the same may have been removed as aforesaid. suit was removed. P. L. 153. of books and papers. 28. Arbitrators shall have power in any action depending before them, between 24 Feb. 1847 § 1. any contractors, laborers or workmen, and any company incorporated by the laws of this commonwealth, and empowered to construct, make and manage any rail- Arbitrators may road, canal or other public internal improvement, to require either party to produce compel production any books or writings, in their possession or power, which contain evidence pertinent to the issue; and if such party shall fail to produce such books or writings, or to satisfy said arbitrators why the same is not in their power so to do, it shall be lawful for the said arbitrators to find an award against such party, if plaintiff, of no cause of action; if defendant, for such sum as the plaintiff, his agent or attorney, shall make oath or affirmance, is justly due, according to the best of his knowledge and belief: Provided, That before such requirement shall be made by such arbitrators, it shall be proved to their satisfaction, on oath or affirmation, that clear and distinct notice in writing shall have been given to produce such books or writings, at least ten days previous thereto. 10 Sm. 305. serve process for 29. When any trespass or malicious mischief shall be committed by any per- 28 March 1829 § 1. son or persons, boating or travelling on the Schuylkill canal or tow-path, it shall and may be lawful for any justice of the peace of either of the said counties, when Justices may deapplied to for that purpose, to issue process as in other cases; and when the pute persons to proper officer cannot conveniently be procured to serve such process, to depute a injuries to Schuyl proper person or persons for that purpose, and such person or persons so deputed kill canal, &c. shall have all the power and authority of the proper officers to serve such process: Provided, That before any such deputation be made by such justice, the person or persons so applying shall first make oath or affirmation, that he or they verily believe that before the proper officer could be procured to serve such process, the persons so offending would escape beyond the jurisdiction of the said justice of the peace. IV. Regulations for the use and preservation of the canals. 30. Every person who shall wilfully lead or drive any horse, ox, ass, mule, 10 April 1826 § 1. sheep, swine or other cattle, upon the towing-path or berm-bank of any canal or (a) Extended to service of process on the Arbor Coal Company, in the county of Tioga, by act 24 January 1852, § 3. P. L. 12. (b) This provision was repealed, so far as applicable to actions on contracts, by act 11 February 1841, § 3, P. L. 24; but re-enacted by act 17 April 1861, P. L. 385, as to all suits, actions and proceedings against 9 Sm. 198. canal and railroad companies, whether for the assessment of damages or any other cause. (c) This may be done at any time before the jury is sworn; and if the affidavit be made before such time, it is error in the court to proceed further. Railroad Co. v. Cummins, 8 W. 450. The filing of the affidavit operates as a supersedeas. Hughes v. Mine Hill and Schuylkill Haven Railroad Co., 30 P. S. 517. 10 April 1826 § 1. 9 Sm. 198. Penalty for using towing-paths, or berm-banks, except for towing. Ibid. § 3. Penalty for obstructing the navigation by boats, &c. Ibid. § 4. Or by sinking anything therein, or placing anything on the towingpaths. Ibid. § 7. How boats meeting each other to pass. 15 March 1859 § 1. P. L. 140. Passing of boats on the Schuylkill nay igation regulated. 10 April 1826 § 8. 9 Sm. 201. Not to move faster than four miles an hour without per mission. pool, forming part of an artificial navigation, constructed under the laws of the commonwealth of Pennsylvania, except for the purpose of towing boats, craft or other floating things, upon the waters of such artificial navigation, or for the purpose of conveying articles to and from the margins of such canals or pools, to be transported thereon or delivered at their place of destination, shall forfeit and pay for each offence, any fine not exceeding the sum of ten dollars, and pay all damages consequent upon such offence, over and above the said forfeiture, and in case of default in the immediate payment of such forfeiture, after conviction, such persons shall be sentenced to imprisonment in the jail of the county where such offence may be committed, for a term not exceeding thirty days, at the discretion and upon the warrant of the court before whom such conviction shall be had: Provided, That this section shall have no effect, unless the company prosecuting shall have complied with the provisions. of its charter, in constructing passable bridges or fordings for the accommodation of the public and those concerned. 31. If any boat, craft or floating thing shall be so moored or placed in any canal or pool forming part of an artificial navigation as aforesaid, as to obstruct the free use of such canal or pool, or if any person or persons shall obstruct or prevent the use thereof, by means of the loading, unloading, misplacing or otherwise misconducting any such boat, craft or other floating thing, and shall not forthwith, upon being requested thereto by any engineer, superintendent, gatekeeper or other agent employed upon the said canals and navigation, or by any persons incommoded by such obstruction, remove the same, the person who may cause such obstruction, shall forfeit for every such offence any sum not exceeding twenty dollars, over and above the expense of removing such obstructions. 32. If any person shall wilfully obstruct the navigation of any of the said canals or pools, by throwing into the same or sinking to the bottom thereof, any vessel, timber, stone, earth or other thing, or by placing anything whatever upon any of the towing-paths or berm-banks, such person shall forfeit, for every such offence, any sum not exceeding fifty dollars, and in case such forfeiture shall not be paid forthwith, shall be imprisoned as is directed in the first section of this act.(d) 33. In all cases when any boat, craft or other floating thing, in passing upon any artificial navigation constructed as aforesaid, shall meet with any other boat, craft or floating thing, it shall be the duty of the boatmen, or other persons having charge of each of the said boats, craft or floating thing, to turn out to the right hand so far as to give to each other a free passage; and in all cases when any boat, craft or floating thing shall approach any place upon any such artificial navigation as before mentioned, which shall be less than thirty feet wide at the top water line, or which shall not permit their passing, it shall be the duty of the boatman, or other person having charge of the ascending boat, (e) craft or other floating thing, to wait at such distance from such narrow place as may be most convenient to permit the descending boat, craft or other floating thing to pass through such narrow place, until such passage is effected; and every person violating any of the provisions of this section, shall forfeit for each offence any sum not exceeding twenty dollars. 34. When any boat, craft or floating thing, in passing upon the Schuylkill navigation, shall meet with any other boat, craft or floating thing, it shall be the duty of the boatmen or other persons having charge of the said boats, crafts or floating things, to turn out so far as to give each other a free passage in the manner following, to wit: ascending boats shall keep on the tow-path side, and descending boats on the berm side: Provided, That boats propelled by steam shall keep the berm side in all cases, except when meeting a boat propelled by steam coming in the opposite direction, in which case the ascending steamship shall keep to tow-path side; and every person violating any of the provisions of this section, shall forfeit for each offence any sum not exceeding twenty dollars, to be recovered as provided by the 15th section of the act to which this is a supplement.(g) 35. No boat, craft or other floating thing shall move upon any canal forming part of an official navigation constructed as aforesaid, faster than at the rate of four miles per hour, unless by express permission of the directors, managers or commissioners of such navigation, to be contained either in a written license, or in a general printed regulation, duly made and published by such directors, managers or commissioners; and in all cases when one boat or other floating thing, moving upon any artificial navigation constructed as aforesaid, shall overtake any other taking each other boat or floating thing, moving at a rate of speed slower than that of the boat or floating thing so overtaken, it shall be the duty of the boatman or person having charge of the slower boat or thing to give every practicable facility to enable the overtaking boat or other thing to pass, and for that purpose to make room for the How boats over to pass. (d) See infra 58. (e) Where an ascending and descending boat have to pass each other at or near a narrow place in the canal, it is the duty, as between themselves, of the ascending boat to wait at such distance as to permit the descending boat to pass with safety; but if the ascending boat will not wait, the descending boat is v. |