Page:Federal Reporter, 1st Series, Volume 3.djvu/116

 V. p. ST. CO. ». B. & M. B. B. 00. IN NEB. 109 �holders. The company shall, in ail cases, pay the costs of the first assessment; provided, that either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the probate judge until a final decision be had, sub- ject to the order of the supreme court." �Commissioners were appointed as required by the statutes, and, after being qualified, they proceeded in the perform- ance of their duties, and reported as follows : �"That said crossing shall be made in the east part of lot number seven, (7,) in block number one hundred and fifty- six, (15G,) in the city of Omaba, as shown on the plat marked Exhibit A ; that the manner of said crossing shall be at an angle of fifty-eight degrees and fifty-eight seconds, upon a grade even with that of the Union Pacific Eailway's track at that point, and with steel templates four (4) inches in ■width, with two and a half (2J) inches width of head, or •whatever is necessary to make a good and safe crossing at that point; that the compensation to be paid to the Union Pacific Eailway Company for such crossing shall be one thousand dollars, ($1,000.) Ail of which is respectfuUy sub- mitted. �[Signedl "Samuel E, Eogebb. �"Geo. Smith. �"MiCHAEL DONOVAN. �"Charles Turneb." If the stafute îs applicable to this case, and has been fol- lowed in the condemnation proceedings, the complainant is bound, and has no remedy except the right to contest the question of damages on appeal to the district court. Counsel for complainant insists that the proceedings in condemnation are void upon several grounds, which will now be consid- ered. �1. It is claimed that, inasmuch as the complainant's fran- chise is derived from the United States, no state legislation is valid which provides for condemning the right of way for another railroad across its right of way and track. �It is now well settled that the right of eminent domain ifl a ����