Section 71.590 - Condemnation of property for street railways - ascertainment and payment of damages - procedure1. Before taking or damaging any property in the construction of a railroad under such franchise, the corporation shall cause to be ascertained and determined the damages that will be done by the building and operation of such railroad, to the real and personal property situated on the route fixed by the ordinance defining the franchise, and shall pay to the owner or owners of the real and personal property so affected, or into court for them, the amount of their respective damages.2. In case the corporation fails to agree with the owners thereof for the proper compensation for the damages done or likely to be done or sustained by reason of the construction and operation of the railroad, or if, by reason of the legal incapacity of any such owner, no compensation can be agreed upon, the circuit court having jurisdiction over the town or city granting such franchise on application of the corporation shall appoint three disinterested residents of such town or city, who shall give personal notice to all owners or their agents of property affected, if they can be found, as well as ten days' notice by advertisement in the newspapers doing the printing of such town or city, of their time and place of meeting; and the commissioners having been first duly sworn to perform their duties justly and impartially and a true report to make, shall fully examine into the construction and operation of the railroad and its effects upon the real and personal property damaged thereby, making just allowances for the advantages which may have resulted or which may result to the owner or owners of property for which damages may be claimed or allowed, and after such comparison, shall estimate and determine how much damages, if any, such property may have sustained or seems likely to sustain by reason thereof, and make report of the same, and if no exceptions be filed within ten days thereafter, or in the event exceptions are filed and overruled, the court shall confirm the report and enter judgment thereon; from which judgment either or any party shall be entitled to an appeal or writ of error as in other cases. If the proceeding seeks to affect the property of persons under conservatorship, the conservators must be made parties, and if the property of married persons, their spouses must be made parties.3. The petition shall set forth the general nature of the franchise granted, the nature of the railroad to be constructed and operated, causing or likely to cause damage to private property for public use, together with all facts necessary to give the court jurisdiction in the premises, the names of owners of the several parcels of land and personal property to be affected thereby, if known, or, if unknown, a correct description of the property or interest whose owners are unknown. The petition may be presented to the circuit court. Upon filing the petition, a summons shall be issued giving the defendants at least ten days' notice of the time when the petition will be heard, which summons shall be served in the same manner as writs of summons are or may be by law required to be served. If the name or residence of any defendant be unknown, or if any defendant does not reside within this state, notice of the time of hearing the petition, reciting the substance of the petition, and the day fixed for the hearing thereof, shall be given by publication for four consecutive weeks prior to the hearing of the petition, in the paper doing the town or city printing, and the court, being satisfied that due notice of the pending of the petition has been given, shall make the appointment of the commissioners.4. The report of the commissioners to the circuit court shall be in writing and under oath, and filed with the clerk thereof, and the damages allowed to each owner of property affected shall be separately stated. The report of the commissioners may be reviewed by the circuit court on written exceptions filed by any party in the clerk's office within ten days after filing of such report, and the court shall make such order therein as right and justice may require, and may order a new appraisement on good cause shown, but the hearing of such exceptions shall be summary, and the court shall fix a day therefor without delay. The costs of the proceedings up to and including the filing of the commissioners' report shall be paid by the corporation, but all costs caused by any subsequent litigation shall be paid by the losing party. All damage found by the commissioners shall, within thirty days after filing their report, be paid to the owners of the property damaged, or into court for them, by the corporation, and if the same is not so paid, the railroad shall not be constructed.Prior revisions: 1929 § 7157; 1919 § 8606; 1909 § 9494