MINES AND MINING
RIGHTS OF WAY AND EASEMENTS FOR DEVELOPMENT OF MINES
47-905. Appointment of commissioners — Trial by court if commissioners not appointed. At any time after the service of the summons the plaintiff may upon ten days’ notice to the defendant, apply to the district court or the judge thereof for the appointment of commissioners to assess the damages resulting from the grant of such right of way. If upon the hearing of such motion, and the affidavits and proofs offered by the respective parties, the judge shall be of the opinion that the plaintiff has made a prima facie case entitling him to the relief demanded in the complaint, or any part thereof, he shall appoint three commissioners, who must be disinterested persons, residents of the county, to assess the damages resulting to the claims, mines or lands of the defendant. But if such commissioners are not applied for and appointed, or their award is not approved by the judge or court, or if an appeal is taken from their award as hereinafter provided, the action shall be tried and determined by the court, and the provisions of the Code of Civil Procedure applicable thereto shall govern the proceedings therein as in other civil actions. Either party shall be entitled to a jury trial and may move for a new trial and appeal as in other cases.
[(47-905) 1876, p. 70, sec. 5; R.S., sec. 3134; am. 1899, p. 350, sec. 3; reen. R.C. & C.L., sec. 3227; C.S., sec. 5541; I.C.A., sec. 46-805.]