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than once in six months. If such treasurer neglect or refuse to comply with the provisions of this section, he shall forfeit and pay to the person or persons presenting such written request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished, to be sued for and recovered in an action.
SEC. 517. May have office elsewhere.-Any corporation formed for the purposes mentioned in this article may provide in the articles of incorporation for having a business office without this territory, at any place within the United States, and to hold any meeting of the stockholders or directors of the corporation at such office so provided for; but every such corporation having a business office out of this territory must have its main office for the transaction of business within this territory, to be also designated in such articles.
SEC. 518. Fraud-Responsibility.-If any such corporation shall willfully violate any of the provisions of this chapter relating or applying to such corporation, and shall thereby become insolvent, the directors ordering or assenting to such violation shall, jointly and severally, be liable in an action founded upon this statute for all debts contracted after such violation.
SEC. 519. Ditch corporation-Requisites.-In addition to the matters required by section three hundred and eighty-six, every corporation formed for the purpose of constructing a ditch to convey water to any mines, mills, or lands to be used for mining, manufacturing, milling, or for the irrigation of lands, must, in the articles of incorporation, specify as follows: The stream or streams from which the water is to be taken; the point or place on said stream at or near which the water is to be taken out; the line of said ditch, as near as may be; and the use to which the said water is intended to be applied.
SEC. 520. Rights.-Any ditch corporation shall have the right of way over the line named in the articles, and shall also have the right to run the water of the stream or streams named in the articles through their ditch: Provided, That the line proposed shall not interfere with any other ditch whose rights are prior to those granted under this article and acquired by virtue of such articles of incorporation. Nor shall the water of any stream be diverted from its original channel to the detriment of any miners, mill-men, or others along the line of said stream who may have a priority of right; and there shall be at all times left sufficient water in said stream for the use of miners and agriculturists along said stream.
SEC. 521. Duty to furnish water.-Every ditch corporation must furnish water to the class of persons using water in the way and for the purpose for which the articles of incorporation declare the water obtained by the corporation is to be used, whether miners, manufacturers, mill-men, or farmers, whenever they shall have water in their ditch unsold, and must at all times give the preference to the use of the water in such ditch to the class of persons so named in the articles; and the rates or tolls at which water is to be furnished must be fixed by the board of county commissioners as soon as such ditch shall be completed and prepared to furnish water.
SEC. 522. Protection from injury.-Every ditch corporation must keep the banks of its ditch in good condition, so that the water shall not be allowed to escape from it to the injury of any mining claim, road, ditch, or other property; and whenever it is necessary to extend or construct any ditch over, across, or above any lode or miningclaim or public highway the corporation shall, if necessary to keep the water of said ditch out or from any such lode, claim, or highway, flume the ditch so far as necessary to protect such claim, property, or highway from the water of such ditch.
SEC. 523. Flumes-Requisites.—In addition to the matters required in section three hundred and eighty-six, every corporation formed for the purpose of constructing a flume must, in its articles of incorporation, 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. Such corporation shall have the right of way over the line named in its articles: Provided, It does not conflict with the right of any fluming, ditching, or other corporation, or with the prior water-rights of any
SEC. 524. Tunnels-Same.—In addition to the matters required by section three hundred and eighty-six, every corporation formed for the purpose of running and excavating a tunnel for mining for gold, silver, or other ore, or quartz or coal, must, in the articles of incorporation, specify as follows: Where said tunnel is to be run; the place of commencement; the course and termination; and the metals, minerals, or ores designated to be excavated. Through all lodes crossed by such tunnel such corporation shall have the right of way.
SEC. 525. Acquiring right of way. The right of way granted in this article to any ditch, flume, or tunnel corporation may be acquired in the same manner and by like proceedings as provided for railroad corporations.
SEC. 526. Non-user forfeits rights.—Every corporation formed under the provisions of this article must, within ninety days from the date of the issue of its certificate of incorporation, commence the construction of its works or the transaction of its business, and must prosecute the work or business with due diligence until the same is completed; and the time of the completion of its works shall not extend beyond a period of two years from the time work was commenced as aforesaid; and any such corporation failing to commence work within ninety days from the date of its 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 corporation: Provided, That this section shall not apply to the construction of any works through or over any grounds owned by such corporation.
The manner of acquiring the right of way by any an ditch, flume, or tuunel corporation is the same, with like proceedings as provided by railroad corporations (see section 525), which proceedings, etc., are as follows:
SEC. 452. Taking when owner refuses—Procedure.-If the owner of any real property over which said railroad corporation may desire to locate its road shall refuse to grant the right of way through and over his premises, the district judge of the county or subdivision in which said real property may be situated, as provided in this article, shall, upon the application or petition of either party, and after ten days' notice to the opposite party, either by personal service or by leaving a copy thereof at his usual place of residence, or, in case of his non-residence in the territory, by such publication in a newspaper as the judge may order, direct the sheriff of said county to summon three disinterested freeholders of said county or subdivision (or if there be none such, then of the territory) as commissioners, who shall be selected by said judge, and who must not be interested in a like question. The commissioners shall be duly sworn to perform their duties impartially and justly; and they shall inspect said real property and consider the injury which such owner may sustain by reason of such railroad; and they shall assess the damages which said owner will sustain by such appropriation of his land; and they shall forthwith make report thereof in writing to the clerk of the said court, setting forth the quantity, boundaries, and value of the property taken, or amount of injury done to the property which they assess to the owners, which report must be filed and recorded by the clerk, and a certified copy thereof may be transmitted to the register of deeds of the county or subdivision where the land lies, to be by him filed and recorded (without further acknowledgment or proof) in the same manner and with like force and effect as is provided for the record of deeds. And if said corporation shall, at any time before it enters upon said real property for the purpose of constructing said road, pay to said clerk for the use of said owner the sum so assessed and reported to him as aforesaid, it shall thereby be authorized to construct and maintain its road over and across said premises: Provided, That if the corporation shall need or require, for the purpose of constructing said railroad, to take and occupy any real property in any unorganized county, or in other unorganized country where there is no district court established, then the judge of the district court of the nearest organized county or subdivision (wherein such court is established) upon the line of said road shall appoint commissioners to assess said damages; and he and they shall perform all other duties required of district judges and commissioners by the terms of this article, and either party shall have the right to appeal as in other cases herein provided: And provided further, That the report of the commissioners may be reviewed by the district court, on written exceptions filed by either party in the clerk's office within sixty days after the filing of such report; and the court shall take such order therein as right and justice may require, either by confirming, modifying, or rejecting the same, or by ordering a new appraisement, on good cause shown: And provided further, That either party may appeal from the decision of the district court to the supreme court, and the money so deposited shall remain in the hands of the clerk, as aforesaid, until a final decision be had, and subject thereto; but such review or appeal shall not delay the prosecution of the work on said railroad over the premises in question, if such corporation shall first have paid or deposited with said clerk the amount so assessed by said commissioners: and in no case shall said corporation be liable for the costs on such review or appeal, unless the owner of such real property shall be adjudged entitled, upon either review or appeal, to a greater amount of damages than was awarded by said commissioners. The corporation shall, in all cases, pay the costs and expenses of the first assessment. And in case of review or appeal, the final decision may be transmitted by the clerk of the proper court, duly certified, to the proper register of deeds, to be by him filed and recorded as hereinbefore provided for the recording of the report, and with like effect.
SEC. 453. Commissioners act in all cases Vacancies.-Freeholders so appointed shall be the commissioners to assess all the damages to the owners of real property in said county or subdivision; and said corporation may, at any time after their appointment, upon the refusal of any owner or guardian of any owner of lands in said county or subdivision to grant the right of way as aforesaid, by giving said owner or guardian ten days' notice thereof in the manner prescribed in the preceding section, have the damages assessed in the manner hereinbefore prescribed. In case of the death, absence, or refusal or neglect of any of said freeholders to act as commissioners, as aforesaid, the sheriff shall, upon the selection of the district judge, summon other freeholders to complete the panel, and said commissioners shall receive three dollars per day each for their services, and the same shall be taxed in the bill of costs.
SEC. 454. Guardians —Married women.-Whenever any railroad corporation shall take any real property, as aforesaid, of any minor, any person insane or otherwise incompetent, or of any married woman whose husband is under guardianship, the guardian of such minor, insane or incompetent person, or such married woman with the guardian of her husband, may agree and settle with said corporation for all damages or claims by reason of the taking of such real property, and may give valid releases and discharges therefor upon the approval thereof by the judge of the probate court.
SEC. 455. Unknown owner.-If upon the location of said railroad it shall be found to run through the real property of any non-resident owner who is unknown to the corporation, or who has not been by it informed thereof. and has neither granted nor refused to grant the right of way through and over his said premises, tl■ said corporation may give four weeks' notice to such owner, if known, and if not known, by a description of such real property by
publication four consecutive weeks in some newspaper published in the county or subdivision where such real property may lie, if there be any, and if not, in one nearest thereto on the line of their said road, that said railroad has been located through and over his lands; and if said owner do not, within thirty days thereafter, apply to the district judge to have the damages assessed in the mode prescribed in this article, said corporation may proceed to have the damages assessed, as hereinbefore provided, subject to the same right of review and appeal as in case of resident owners; and, upon payment of damages assessed to the clerk of the district court, the corporation shall acquire all the rights and privileges mentioned in this article.
SEC. 456. Claimants on public lands.-Any railroad corporation is authorized to pass over, occupy, and enjoy all the public lands, to the extent and in the manner prescribed by the act of Congress approved March 3, 1875: Provided, That the damages accruing to and occupant or possessory claimant, or other person who may reside on or have improvements upon said public land, shall be determined and paid by said railroad corporation as provided in this article for owners of private lands.
The involuntary dissolution of corporations, referred to in second subdivision of section 418, p. 263, is as follows:
SEC. 532. Territory against corporation.-An action may be brought by any district attorney in the name of the territory, on leave granted by the district court or judge thereof, for the purpose of vacating the charter or the articles of incorporation, or for annulling the existence of a corporation other than municipal, whenever such corporation shall:
1. Offend against any of the laws creating, altering, or renewing such corporation; or,
2. Violating the provisions of any law, by which such corporation shall have forfeited its charter or articles of incorporation by abuse of its power; or,
3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers; or,
4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges, and franchises; or,
5. Whenever it shall exercise a franchise or privilege not conferred upon it by law. And it shall be the duty of any district attorney, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and, upon leave granted, to bring the action in every case of public interest, and also in every other case in which satisfactory security shall be given to indemnify the territory against the costs and expenses to be incurred thereby.
SEC. 533. Leave to bring such action.-Leave to bring the action may be granted upon the application of any district attorney, and the court or judge may, at discretion, direct notice of such application to be given to the corporation or its officers previous to granting such leave, and may hear the corporation in opposition thereto.
SEC. 543. Judgment against corporation.-If it shall be adjudged that a corporation against which an action shall have been brought pursuant to this chapter has, by neglect, abuse, or surrender, forfeited its corporate rights, privileges, and franchise, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges, and franchises, and that the corporation be dissolved.
SEC. 544. Costs, how collected.—If judgment be rendered in such action against a corporation, or against a person claiming to be a corporation, the court may cause the costs therein to be collected by execution against the person claiming to be a corporation, or by attachment or process against the directors or other officers of such corporation.
SEC. 545. Closing corporate affairs.-When such judgment shall be rendered against a corporation, the court has power to restrain the corporation, to appoint a receiver of its property, and to take an account and make distribution thereof among its creditors, and the district attorney must, immediately after the rendition of such judgment, institute proceedings for that purpose.
SEC. 546. Judgment filed with secretary.-Upon the rendition of such judgment against a corporation, the district attorney must cause a copy of the judgment to be forthwith filed in the office of the secretary of the territory, whose duty it shall be to record the same.
REVISED CODES, 1877: CODE OF CIVIL PROCEDURE.
AN ACT to establish a code of civil procedure for Dakota territory. (Approved February 17, 1577; Rev. Codes, p. 483.)
PART 2-CHAP. VI.-TIME OF COMMENCING ACTIONS IN GENERAL.
SEC. 41. Seizin within twenty years.-No action for the recovery of real property, or for the recovery of possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.
SEC. 42. Same.-No cause of action, or defense to an action, founded upon the title to real property, or to rents or services out of the same, shall be effectual unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within twenty years before the committing of the act in respect to which such action is prosecuted or defense made.
CHAP. XXIX.-ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND OTHER ACTIONS CONCERNING REAL ESTATE.
SECTION 645. Right of entry.-The court in which an action is pending for the recovery of real property or for damages for an injury thereto, or a judge thereof may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action.
SEC. 646. Order for-Service.-The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may erser upon the property, with necessary surveyors and assistants, and make such survey and measurement; but if any unnecessary injury be done to the property, he is liable therefor.
SEC. 649. Mining customs.-In actions respecting mining-claims, proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim, and such customs, usages, or regulations, when not in conflict with the laws of this territory and of the United States, must govern the decision of the action.
SEC. 650. Occupying claimants.-Any person settled upon the public lands belonging to the United States, on which settlement is not expressly prohibited by Congress or some department of the general government, may maintain an action for any injuries done the same; also, an action to recover the possession thereof, in the same manner as if he possessed a fee-simple title to said lands.
REVISED CODES, 1877: PENAL CODE.
AN ACT to establish a penal code for the territory of Dakota. (Approved February 7, 1877; Rev. Codes, p. 726.)
SECTION 248. Murder by forcibly taking mine.—If any person or persons shall associate and agree to enter or attempt to enter, by force of numbers and the terror such numbers is calculated to inspire, or by force and violence or by threats of violence against any person or persons in the actual possession of any lode, gulch, or placer-claim, and upon such entry or attempted entry any person or persons shall be killed, said persons, and all and each of them, so entering or attempting to enter, shall be deemed guilty of murder, and punished accordingly. Upon the trial of such cases, any person cognizant of such entry or attempted entry who shall be present and aiding. assisting, or in anywise encouraging such entry or attempted entry, shall be deemed a principal in the commission of said offense.
AN ACT to establish a penal code for the territory of Dakota. (Approved February 7, 1877; Rev. Codes, p. 794.)
SEC. 735. Conspiracy and mobs against mines.—In all cases where two or more persons shall associate themselves together for the purpose of obtaining possession of any lode, gulch, or placer-claim, then in the actual possession of another, by force and violence, or by threats of violence, or by stealth, and shall proceed to carry out such purpose by making threats against the party or parties in possession, or who shall enter upon such lode or miningclaim for the purpose aforesaid, or who shall enter upon or into auy lode, gulch, placer-claim, or quartz-mill, or other mining property, or, not being upon such property, but within hearing of the same, shall make any threats. or make use of any language, sign, or gesture calculated to intimidate any person or persons at work on sand property from continuing to work thereon or therein, or to intimidate others from engaging to work there a or therein, every such person so offending shall, upon conviction, be punished by imprisonment in the county jail not exceeding six months and not less than thirty days, and by fine not exceeding two hundred and fifty dollers such fine to be discharged either by payment or by continement in such jail until such fine is discharged at tive rate of two dollars and fifty cents per day. On trials under this section proof of a common purpose of two or more persons to obtain possession of property, as aforesaid, or to intimidate laborers, as above set forth, accompanied or followed by any of the acts above specified, by any of them, shall be sufficient evidence to convict any one committing such acts, although the parties may not be associated together at the time of committing the same.
SESSION LAWS, 1879.
AN ACT to amend section four hundred and thirteen of the civil code. (Approved February 22, 1879, p. 13.) SECTION 1. Liability of stockholders-Duty of court in case of suit-Stockholder defined.-That section four hundred and thirteen of the Civil Code be, and the same is hereby, amended so as to read as follows:
SEC. 413. Each stockholder of a corporation is individually and personally liable for the debts of the corporation to the extent of the amount that is unpaid upon the stock held by him. Any creditor of the corporation may institute joint and several actions against any of its stockholders that have not wholly paid the capital stock held by him, and in such action the court must ascertain the amount that is unpaid upon the stock held by each stockholder and for which he is liable, and several judgment must be rendered against each in conformity therewith. The liability of each stockholder is determined by the amount unpaid upon the stock or shares owned by him at the time such action is commenced, and such liability is not released by any subsequent transfer of stock. And in no other case shall the stockholders be individually and personally liable for the debts of the corporation. The term "stockholder”, as used in this section, shall apply not only to such persons as appear by the books of the corporation to be such, but also to every equitable owner of stock, although the same appear on the books in the name of another; and also to every person who has advanced the installments or purchase money of stock in the name of a minor, so long as the latter remaius a minor; and also to every guardian or other trustee who voluntarily invests any trust funds in the stock. Trust funds in the hands of a guardian or trustee shall not be liable under the provisions of this section by reason of any such investment, nor shall the person for whose benefit the investment is made be responsible in respect to the stock until he becomes competent and able to control the same; but the responsibility of the guardian or trustee making the investment shall continue until that period. Stock held as collateral security, or by a trustee, or in any other representative capacity, does not make the holder thereof a stockholder within the meaning of this section, except in the cases above mentioned, so as to charge him with the debts or liabilities of the corporation; but the pledgor, or person, or estate represented is to be deemed the stockholder as respects such liability.
AN ACT to amend chapter three (3) of title two (2), part three (3) of the Civil Code of this territory, in relation to corporatious. (This act was passed over the veto of the governor by the necessary two-thirds vote by the council and house of representatives February 18th and 19th, respectively, 1979, and was deposited with the secretary of the territory at 10 o'clock a. m. February 20, 1879.)
SECTION 1. Interest of delinquent member of incorporated company may be sold.—Whenever any member of an incorporated company organized under articles 10, 12, and 13 of chapter 3, title 2, part 3 of the Civil Code, duly organized under the laws of this territory, where the same is not a stock company, shall refuse, fail, or neglect to pay any assessment levied by the company of which he is a member in accordance with law, after having been notified of such assessment as provided in said chapter, his share, interest, or membership in such company may be sold in the same manner and like proceedings had as in the sale of the stock of incorporated companies under said chapter, and the title to such share, interest, or membership, when so sold, shall vest absolutely in the purchaser thereof.
SEC. 2. Purchaser of interest in incorporated company becomes a member thereof-Interest may be sold, when.—Any member of an incorporated company not being a stock company may, by deed, transfer his interest, share, or membership therein, whereupon the purchaser thereof shall become a member of such company; and if any assessment or amount of money shall at the time be due and unpaid thereon, such share, interest, or membership may be sold, as in other cases, if such assessment or amount remains unpaid after said purchaser has due notice of such delinquency.
SEC. 3. Time extended for completion of works.-Every incorporated company transacting business within this territory shall be allowed twice the length of time now allowed under said chapter three (3) for the completion of its works without working any forfeiture whatever until the expiration of such extended time, and then only upon failure to complete such works.
SEC. 4. Certain associations to be held strictly to the law.—Any person or persons, or association of persons, now engaged in, or that may hereafter engage in, the construction of any street railway, toll-road, ditch for conveying water, or any other works or improvements specified in said chapter three (3), shall be required to comply strictly with all the provisions of said chapter, in the same manner as therein provided for incorporated companies, so far as the same can be done; and, upon failure of any such person or persons, or association of persons, to comply as aforesaid, the same shall work a forfeiture of any and all rights he or they may have acquired in accordance with law.