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SEC. 31. Every ditch company organized under the provisions of this article shall be required to keep the bank of their ditch in good condition, so that the water shall not be allowed to escape from the same to the injury of any mining-claim, road, ditch, or other property located and held prior to the location of such ditch, and, whenever it is necessary to convey any ditch over or across or above any lode or mining-claim, that the company shall, if necessary to keep the water of said out or from any claim, flume the ditch so far as necessary to protect such claim or property from the water of said ditch: Provided, That in all cases where the ditch has priority of right by location, the owners of such claim or property shall be compelled to protect themselves from any damages that might be created by said ditch, and the owner of such claim shall be liable for any damages resulting to said ditch by reason of the works or operations performed on such claim or property.
SEC. 32. When any company shall organize under the provisions of this article to form a company for the purpose of constructing a flume, their certificate, in addition to the matters required in the first section of this article, shall specify as follows: The place of beginning, the termini, and the route, so near as may be, and the purpose for which such flume is intended, and, when organized according to the provisions of this article, said company shall have the right of way over the line proposed in such certificate for such flume: Provided, It does not conflict with the right of any farmer, fluming, ditching, or other company.
SEC. 33. When any three or more persons shall associate under the provisions of this article to form a company for the purpose of constructing a bridge or establishing a ferry over any of the streams of water in this territory, their certificate, in addition to the matters required in the first section of this article, shall specify as follows: The place where said bridge or ferry is to be built or established, and on what streams, and that the banks on both sides of the stream where the said bridge or ferry is to be built or established are owned by said company, or that they have obtained, in writing, the consent of the owners of the banks where the said bridge is to be built to erect the said bridge or establish the said ferry as aforesaid.
SEC. 34. Any bridge built or established under the provisions of this article shall at all times be kept in good and safe condition for travel, both night and day, unless the same be rendered impassable by reason of flood or high water; and any bridge or ferry so built or established shall, if destroyed by flood, fire, or other causes, be rebuilt or established within a period of nine months from such destruction, or the rights acquired under this article shall be forfeited and cease to exist.
SEC. 35. The company, previous to receiving any toll upon said bridge or ferry, shall set up and keep, in a conspicuous place on the said bridge or ferry, a board, on which shall be written, painted, or printed, in a plain, legible manner, the rates of toll, which rates of toll shall have been prescribed by the county commissioners, or the tribunal transacting county business in said county; and if any company shall demand or receive any greater rate of toll than the rate prescribed by said tribunal, then they shall be subject to a fine of ten dollars; and no company formed under the provisions of this article shall demand or receive tolls whenever said bridge or ferry is not in a good and safe condition for travel, and any person having paid toll on such bridge or ferry, and finding the same in a bad or unsafe condition for loaded teams, shall have the right to make complaint before any justice of the peace in the county in which the bridge or ferry is located, who shall proceed as is provided in section twenty-six of this article.
SEC. 38. Whenever any three or more persons associate under the provisions of this article to form a company for the purpose of constructing a line or lines of magnetic telegraph in this territory, their certificate shall specify as follows: The termini of such line or lines, and the counties through which they shall pass; and such corporation is hereby authorized to construct said telegraph line or lines from point to point along and upon any of the public roads, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires: Provided, That the same shall not incommode the public in the use of said roads or highways.
SEC. 39. Any company formed under the provisions of this act for the purpose of constructing any road, ditch, flume, bridge, ferry, or telegraph line shall, within ninety days from the date of their certificate, commence work on such road, ditch, flume, bridge, ferry, or telegraph line as shall be named in the certificate, and shall prosecute the work with due diligence until the same is completed; and the time of the completion of any such road, ditch, bridge, ferry, or telegraph line shall not be extended beyond a period of two years from the time work was commenced, as aforesaid; and any company failing to commence work within ninety days from the date of certificate, or failing to complete the same within two years from the time of commencement as aforesaid, shall forfeit all right to the route so claimed, and the same shall be subject to be claimed by any other company; the time for the completion of any flume constructed under the provisions of this act shall not be extended beyond a period of four years: Provided, That this section shall not apply to any ditch or flume for mining purposes constructed through any grounds owned by the corporation.
SEC. 40. Every corporation, under the provision of this act, as such, has power:*
First. To have succession by its corporate name for the period limited in its certificate of charter.
Second. To sue and be sued, complain and defend, in any court of law or equity.
Third. To make and use a common seal, and alter the same at pleasure.
Fourth. To hold, purchase, and convey such real and personal estate as the purpose of the corporation may require.
Fifth. To appoint such subordinate officers and agents as the business of the corporation shall require, and to allow them a suitable compensation.
Sixth. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock.
SEC. 41. The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in the certificate or in the act under which it shall be incorporated; but no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated.
SEC. 42. Any person who shall willfully or maliciously damage or interfere with any road, ditch, flume, bridge, ferry, railroad, telegraph line, or any of the fixtures, tools, implements, appurtenances, or any property of any company which may be organized under the provisions of this article, upon conviction thereof before any court of competent jurisdiction in the county where the offense shall have been committed shall be deemed guilty of a misdemeanor, and shall be punished by fine or imprisonment, or both, at the discretion of the court, said imprisonment not to exceed one year, and said fine not to exceed five hundred dollars, which shall be paid into the county treasury for the use of common schools, and said offender shall also pay all damages that any such corporation may sustain, together with costs of suit.
SEC. 43. Nothing in this act shall be so construed as to authorize any company organized under the same to issue notes or bills for circulation as money.
SEC. 44. Any company organized under and by virtue of any act of the territory of Dakota, or any association of individuals acting as bodies corporate, may surrender their certificates or articles of association to the secretary of the territory, and become a body corporate and politic under the provisions of this article by complying with all and singular the provisions thereof.
SEC. 45. Whenever any road, railroad, ditch, telegraph, or fluming company, organized or to be organized under the provisions of this chapter or any law of this territory, shall not have acquired, by gift or purchase, any land, real estate, or claim required for the construction or maintenance of their road, railroad, ditch, telegraph, or flume, or which may be affected by any operation connected with the construction or maintenance of the same, the said corporation may present to the district judge of the judicial district wherein such lands, real estate, or claim shall be, a petition, signed by the president, attorney, or agent of the same, describing, with convenient accuracy and certainty, by map or otherwise, the lands, real estate, or claims so required to be taken, or affected as aforesaid, setting forth the name and residence of each owner or other person interested therein as owner, lessee, or incumbrancer, as far as known to such president, attorney, or agent, or appearing of record, and praying the appointment of three appraisers to ascertain the compensation to be made to such owner and persons interested for the taking or injuriously affecting such lands, real estate, or claims as aforesaid; the said district judge shall have satisfactory evidence that notice of an intended application, and the time and place thereof, for the appointment of appraisers between said corporation and the owners and persons interested in such lands, real estate, and claims, has been given, at least ten days previously, to such owners personally, at their residence or on the premises, or by publication thereof in a newspaper printed in the county in which such lands, real estate, or claims shall lie, or if no newspaper is published in said county, then by posting three or more notices in some public places in said county, such publication to be allowed only in respect to owners or persons interested who shall appear, by affidavit, to have no residence in the county known to such president, attorney, or agent, which notice shall be published at least thirty days prior to the time fixed for the application as aforesaid. The court or judge may adjourn the proceedings from time to time, shall direct any future notice thereof to be given that may seem proper, shall have proofs and allegations of all parties interested touching the regularity of the proceedings, and shall, by an entry in its minutes, appoint three disinterested appraisers as aforesaid, specifying in such entry a time and place for the first meeting of such appraisers. The said appraisers, before entering upon the duties of their office, shall take an oath to faithfully and impartially discharge their duties as said appraisers, and any one of them may administer oaths to witnesses produced before them; they may issue subpoenas and compel witnesses to attend and testify, and may adjourn and hold meetings for that purpose, and shall give reasonable previous notice to such owners or parties interested. They shall hear the proofs and allegations of the parties, and any two of them, after reviewing the premises, shall, without fear, favor, or partiality, ascertain and certify the compensation proper to be made to said owners or parties interested for the lands, real estate, or claims to be taken or affected, as well as all damages accruing to the owners or parties interested in consequence of the condemnation of the same, taken or injuriously affected as aforesaid, making such deduction or allowance for real benefits or advantages which such owners or parties interested may derive from the construction of said road, railroad, ditch, telegraph, or flume. They, or a majority of them, shall make, subscribe, and file with the register of deeds of the county in which such real estate or lands shall lie, a certificate of their said ascertainment and assessment, in which such lands, real estate, or claims shall be described with convenient certainty and accuracy. The district judge, upon such certificate and due proof that such compensation and separate sums, if any be certified, have been paid to the parties entitled to the same, or have been deposited to the credit of such parties in the county treasury, or other place for that purpose approved by the court, shall make and cause to be entered in the minutes a rule describing such lands, real estate, or claims, in
manner aforesaid, such ascertainment of compensation, with the mode of making it, and each payment or deposit of the compensation as aforesaid, a certified copy of which shall be recorded and indexed in the register of deeds' office of the proper county in like manner and with like effect as if it were a deed of conveyance from the said owners and parties interested to the said corporation. Upon the entry of such rule the said corporation shall become seized in fee, or shall have the exclusive right, title, and possession of all such lands, real estate, or claims described in said rule, as required to be taken as aforesaid, during the continuance of the corporation, and may take possession of and hold and use the same for the purposes of the said road, railroad, ditch, telegraph, or flume, and shall thereupon be discharged from all claims for any damages by reason of any matter specified in such petition, certificate, or rule of said district judge. If at any time after an attempted or actual ascertainment of compensation under this article, or any purchase by or donation to said corporation of lands or claims for purchases aforesaid, it shall appear that the title acquired thereby to all or any part of such lands for the use of said corporation, or if said assessment shall fail or be deemed defective, the said corporation may proceed and perfect such title by procuring an ascertainment of the compensation proper to be made to any person who has title, claim, or interest in or lien upon such lands, and by making payment thereof in the manner hereinafter provided, as near as may be, and at any stage of such new proceeding, or of any proceeding under this act, the district judge may, by rule in that behalf made, authorize the said corporation, if already in possession, and, if not in possession, to take possession of and use said premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such corporation on account thereof: Provided, Such corporation shall pay a sufficient sum into court or give approved security to pay the compensation in that behalf when ascertained, and, in every case where possession shall be so authorized, it shall be lawful for the owners to conduct the proceedings to a conclusion if the same shall be delayed by the company. The said appraisers shall receive five dollars per day as compensation for each day actually employed, such compensation to be taxed and allowed by the district judge. If any appraiser so appointed shall die, be unable, or fail to serve, the court may appoint another in his place, on reasonable notice of the application, to be approved by the district judge.
SEC. 46. Whenever any corporation constituted or formed for the purpose of constructing a wagon road, according to the provisions of this article, shall have constructed one mile or more of the road by such corporation to be constructed, it shall be lawful for the county commissioners, or the tribunal transacting county business, of the county in which the portion of the road so constructed shall lie, to prescribe the rate of toll to be charged and collected by such corporation upon the portion of the road so constructed; and thereafter, and as other portions of the road to be constructed by such corporation shall be completed, such county commissioners, or tribunal transacting county business, shall prescribe rates of toll to be charged and collected upon other portions of the road so completed as aforesaid; and such corporation shall have power to erect toll-gates, not exceeding one to every ten miles, and to collect tolls thereat, at the rates prescribed as aforesaid, until such road be completed: Provided, Said road shall be completed within two years after such rates shall have been prescribed.
SEO. 47. Whenever any corporate body organized under this article shall have fully completed the wagon road to be by them constructed, and the county commissioners, or tribunal transacting county business, of the county in which the same shall be located, shall have prescribed the rates of toll to be charged and collected upon such road, such corporation shall be entitled to charge and collect toll at the rates so prescribed for two years thence next ensuing; and at the expiration of the term of two years after such rates shall be prescribed, and biennially thereafter during the existence of such corporation, the county commissioners, or tribunal transacting county business, shall prescribe the rates of toll to be charged and collected on such road for the two years thence next ensuing.
SEC. 48. Whenever any wagon road constructed by any corporation organized under this article shall be located in two or more counties, it shall be lawful for the county commissioners, or tribunal transacting county business, of the several counties into or through which such road shall pass, to prescribe the rates of toll to be charged and collected by such corporation on the portions or parts of such road lying within the limits of such counties, respectively.
SEO. 49. Upon a suit in equity being commenced by any creditor of a domestic corporation, or a foreign corporation doing business in this territory, against said corporation, or any of the directors or officers or agents thereof, in any court of competent jurisdiction of this territory, said court, or a judge thereof, shall have power to restrain, by injunction, such corporation, its directors, or officers, or agents from assuming or exercising any franchise, liberty, or privilege, or transacting any business not allowed by the charter or act of incorporation, and in the same manner to restrain any individual from exercising any corporate rights, privileges, or franchises not granted to them by law.
SEC. 50. Such injunction may be issued before the coming in of the answer, upon satisfactory proof that the defendants complained of have usurped, exercised, or claimed any franchise, privilege, or liberty, or corporate right not granted to them, or have been guilty of wasting or appropriating to themselves the funds of such corporation committed to their charge, and after the coming in of the answer, such injunction may be continued until a decree final shall be had.
NOTE. The last two preceding sections, together with the remainder of article 1, were repealed by act of Congress approved July 1, 1870; also sections four and six of chapter 24, relating to the collection of taxes from corporations.
ART. IV.-Foreign corporations. (Comp. Laws, p. 245.)
SECTION 1. Every incorporated company incorporated under the laws of any foreign state or kingdom, or of any state or territory of the United States beyond the limits of this territory, and now or hereafter doing business within this territory, shall, within thirty days after commencing so to do business, file, in office of the register of deeds of the county within which its business is conducted, a copy of its charter of incorporation; or in case such company is incorporated by certificate under any general incorporation law, a copy of such certificate and of such general incorporation law, duly certified and authenticated by the proper authority of such foreign state, kingdom, or territory.
SEC. 2. A failure to comply with the provisions of this article shall render each and every officer, agent, and stockholder of any such corporation so failing herein, jointly and severally, personally liable on any and all contracts of such company made or to be performed within this territory.
SEC. 3. The several certificates, statutes, and charters mentioned in section first of this article shall be by the register of deeds filed and preserved in his office as a part of the records thereof, and he shall be entitled to receivo a fee of one dollar for receiving and filing every such certificate and statute. Copies of such charters, statutes, and certificates, duly certified by such register of deeds under his seal of office, shall be received in all courts of this territory as sufficient evidence of the existence and corporate character of such incorporations, and of all their powers, duties, and liabilities, and the originals thereof may in like manner be used in evidence of these matters with like effect.
ART. V.-Of the dissolution of corporations.
SECTION 1. Upon dissolution, by expiration of its charter or otherwise, of any corporation now existing, or which hereafter may be formed, unless some other person or persons be appointed, by the legislature or some court of competent jurisdiction, the board of trustees or directors of such corporation, or the managers of the corporate affairs, by whatever name known, acting last before the time of their dissolution, and the survivors of them, shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle tho affairs of the same, to sue for and collect the debts and moneys due the corporation, or to compound and settle the same as they may deem best; to have, hold, reserve, sell, and dispose of property, real and personal, of every such corporation dissolved, to adjust and pay all the debts of the corporation dissolved, to divide the residue of the moneys and property belonging to the corporation dissolved, after payment of debts and the necessary and reasonable expenses, among the stockholders holding stock in such corporation, in proportion to the amount of stock of each stockholder paid up; all such trustees shall be jointly and severally liable to the creditors and stockholders of such corporation dissolved to the extent of the property and effects which shall come into their hands and possession, or into the hands or possession of any of them.
SEC. 2. The title to all real and personal estate belonging to any such corporation shall, immediately upon the dissolution thereof, unless by a decree of a court of competent jurisdiction declaring such dissolution is it otherwise ordered, pass to and rest in such trustees, directors, or other managers, and an action at law may be maintained by such trustees or directors, or the survivors of them, in their own names, by the style of the trustees of such corporation dissolved, naming it, for the recovery of all such property, or of any damage done to the same, or for the recovery of any debts due such corporation dissolved.
SEC. 3. No suit or action at law or in chancery, whereto any corporation is or may be a party, shall abate by reason of the dissolution of such corporation, by expiration of its charter of incorporation or otherwise; but the trustees or directors of such corporation, acting as trustees to the stockholders and creditors, after the dissolution, as herein provided, or the survivors of them, or the trustee or trustees, receiver or receivers, appointed by the decree of any court of competent jurisdiction, may prosecute or defend such suit or action in the name of the corporation dissolved, notwithstanding the dissolution.
SEC. 4. Any corporation dissolved may, notwithstanding such dissolution, prosecute an action at law in the corporate name for the use of the person entitled to receive the proceeds of such suit upon any cause of action accrued, or which, but for such dissolution, would have accrued to such corporation, and in the same manner and with like effect as if such corporation were not dissolved.
SEC. 5. The lien of a judgment or execution at law, or a decree of a court of equity, in favor of or against any corporation, shall not be dissolved or suspended by reason of the dissolution of such corporation subsequent to the rendition of such judgment or the entry of such decree or the issuing of such execution, but execution may be had thereof in the same manner as if such dissolution had not occurred.
SEC. 6. No execution shall issue upon judgment at law rendered against any corporation subsequent to the dissolution of such corporation, but the same, with the costs thereof, shall be paid by the trustees as other debts. SEC. 7. Nothing in this article contained shall be construed to impair the jurisdiction of the court of chancery to decree the dissolution of any corporation, or to appoint a receiver or receivers, trustee or trustees, to settle the affairs of any corporation dissolved by lapse of time or otherwise, and all trustees or managers of any corporation,
acting as the trustees of the stockholders and creditors thereof, after the dissolution of the corporation, shall in all things be subject to the control of the court of chancery; may be required to give bond, with security to be approved by the court, upon petition of any stockholder or creditor of the corporation dissolved, conditioned for the due discharge of their trust; may be required to account for the proceeds of the property and effects of the corporation, and for any failure to give such bond or render such account, or for any default or neglect of duty, they, or any of them, may be removed by the court, and a successor or successors appointed.
SEC. 8. This act shall be deemed a public act, and shall take effect from and after its passage.
AN ACT giving liens to miners and other laborers in mines, coal-banks, and upon oil-lands. (Approved December 2, 1869; Comp. Laws, p. 464.)
SECTION 1. That every miner or other person who, at the request of the owner of any ledge or lode of quartzbearing gold, silver, cinnabar, or copper, or of any coal-bank or mine, shall work in or upon such mine or bank, shall have a lien upon such vein or lode, mine or bank, to the amount due at any time when a demand shall be made upon such owner, or his or their agent, for money due for such labor, and payment shall be refused.
SEC. 2. That any person who shall labor as a mechanic or otherwise, or who shall furnish timber, lumber, rope, nails, or any other material for timbering shafts [or] levels for the mine, or who shall furnish any kind of materials for erecting windlass, whim, or other hoisting apparatus upon any vein, mine, or coal-bank, referred to in the first section, shall also have a lien upon the mine or coal-bank for which he furnished such materials or upon which he performed such labor.
SEC. 3. The party seeking a lien shall proceed, so far as the proceedings are applicable, in the same manner to enforce a lien as by law required in the case of mechanics and other persons seeking to enforce a lien upon dwelling houses and other buildings, except when other provisions are made by this act.
SEC. 4. When any sum exceeding ten dollars, for labor performed by any miner or other person upon or in any mine or coal-bank specified in section one of this act, shall be due and unpaid for ten days, it shall be competent for the person or persons to whom such sum of money shall be due to file a notice in the office of [the] county recorder in the county where such mine is situated, at any time within thirty days after the last day upon which work was done by him; which said notice shall in substance set forth the fact that the party performed labor (naming the kind) for a party or company (naming the party or company); that such labor was performed under a contract (stating the substance); also the time when the party commenced and when he ceased to work, the amount still due and unpaid, together with a description of the mine or coal-bank upon which such work was performed; which statement shall be verified by the affidavit of the party so filing it, and, when filed, the county recorder shall record the same in a "lien-book", the same as required in the case of mechanics' notices of liens.
SEC. 5. The provisions of the next preceding section shall apply to persons who shall furnish materials or work upon any shaft, whim, or other hoisting works, who, by complying with the general provisions of such section, shall have a like lien.
SEC. 6. When notices, as provided in the next two preceding sections, shall be filed, the lien shall hold not only against the owner of the mine or bank from the time when the miner or other person began work, but against all persons or company who shall have purchased such mine or coal-bank while such miner or other person was employed therein, or furnished materials used therein or thereon.
SEC. 7. Suit to enforce such lien may be commenced at any time within one year after filing such notice. SEC. 8. Any owner of any oil well or spring, who shall employ any person to perform any work of any kind around or about any oil well or spring, either in building derricks, buildings, or any kind of machinery, or in boring or drilling, shall be deemed within the provisions of this act; and all persons performing labor or furnishing materials shall have like liens upon oil territory upon which he labored or for which he furnished materials or the improvements thereon, as miners or other laborers upon or in mines as provided in this act, and shall proceed in the same manner to enforce a lien.
SEC. 9. This act shall take effect and be in force from and after its passage.
AN ACT to create a lien for miners and laborers in certain cases, and for other purposes. (Approved 16th December, 1871; Comp. Laws, p. 466.)
SECTION 1. That every miner or other person who, at the request of the owner or owners, or his or their agent, of any lode, lead, or ledge of quartz-bearing gold, silver, cinnabar, or copper, or of any coal-bank or mine, shall perform any labor or furnish any timber, rope, nails, or any other material for timbering shafts or levels for the nfine, or who shall furnish any kind of material for erecting windlass, whims, or any other hoisting apparatus or machinery, shall have a lien upon such lode, ledge, lead, mine, or bank to secure the payment of the same.
SEC. 2. Every miner or other person doing or performing any work or furnishing any material, as specified in