Section merely referred to in Clark v. Clark, 133-30; Reeves v. Reeves, 82-352; McKinnon v. McDonald, 57-7.

1568. Alimony in real estate, writ of possession issued. In all cases in which the court shall grant alimony by the assignment of real estate, the court shall have power to issue a writ of possession when necessary in the judgment of the court to do so.

Code, s. 1293; 1868-9, c. 123, s. 1. Where alimony allotted to wife in specific property of husband, title to such property remains in him, and will revert at death of wife or upon reconciliation: Taylor v. Taylor, 93418.

1569. Effects of absolute divorce. After a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine, and either party may marry again unless otherwise provided by law: Provided, that no judgment of divorce shall render illegitimate any children in esse, or begotten of the body of the wife during coverture.

Code, s. 1295; 1871-2, c. 193, s. 43. Upon granting of absolute divorce, all rights arising out of marriage cease and determine: Duffy v. Duffy, 120-346-hence court has no power to allow permanent alimony in such cases, Ibid.

Judgment for divorce declaring marriage void ab initio will not bastardize issue: Setzer v. Setzer, 97-252.

Where wife, domiciled in another state, obtained decree for divorce a vinculo therein, husband appearing by attorney, he is bound by judgment rendered, and his property rights in her estate here terminated from date thereof: Arrington v. Arrington, 102-491.

For effect of absolute divorce on right to administer, see sections 7, 8, 9-on property rights, see section 2109.

1570. Custody of children in divorce. After the filing of a complaint in any action for divorce, whether from the bonds of matrimony, or from bed and board, both before and after final judgment therein, it shall be lawful for the judge of the court, in which such application is or was pending, to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper, and from time to time to modify or vacate such orders, and may commit their custody and tuition to the father or mother as may be thought best; or the court may commit the custody and tuition of such infant children, in the first place, to one parent for a limited time, and after the expiration of that time, then to the other parent; and so alternately: Provided, that no order respecting the children shall be made on the application. of either party without five days' notice to the other party, unless it shall appear that the party having the possession or control of such

children has removed or is about to remove the children, or himself, beyond the jurisdiction of the court.

Code, ss. 1296, 1570; 1871-2, c. 193, s. 46. For effect of abandonment on custody of children, see section 180. Right of appeal in habeas corpus as to custody of children, see section 1854. In divorce proceedings, whether to grant custody and tuition of children to father or mother, discretionary with court: Setzer v. Setzer, 129-296-and court may, upon notice, change custody before or after judgment, Ibid.

Court will not award custody of child to nonresident mother if it does not appear that child desires to go with her, or that husband is not proper person to have child, or that child will be benefited by change: Harris v. Harris, 115-587.

CHAPTER 32.

ELECTRIC COMPANIES.

1571. May use public highways. Any duly incorporated company possessing the power to construct telegraph or telephone lines, lines for the conveying of electric power or for lights, either or all, shall have the right to construct, maintain and operate such lines along any railroad or other public highway, but such lines shall be so constructed and maintained as not to obstruct or hinder the usual travel on such railroad or other highway.

Code, s. 2007; 1899, c. 64, s. 1; 1903, c. 562; 1874-5, c. 203, s. 2. Section merely referred to in Railroad v. Railroad, 83-496.

1572. May acquire easement in right of way. Such telegraph, telephone, or electric power or lighting company shall have power to contract with any person or corporation, the owner of any lands or of any franchise or easement therein, over which its lines are proposed to be erected, for the right of way for planting, repairing and preservation of its poles or other property, and for the erection. and occupation of offices at suitable distances for the public accommodation: Provided, that this section shall not be construed as requiring electric power or lighting companies to erect offices for public accommodation.

Code, s. 2008; 1899, c. 64; 1903, c. 562, ss. 1, 2; 1874-5, c. 203, s. 3. A railroad company can not grant easement over its right-of-way to telegraph company; this can be done only by owner of soil: Hodges v. Hodges, 133-237; Narron v. R. R., 122-856.

1573. May exercise right of eminent domain; conditions; repeal of special charter rights. Such telegraph, telephone, electric power

or lighting company shall be entitled to the right of way upon making just compensation therefor, over the lands, privileges and easements of other persons and corporations, and the right to erect poles and to establish offices, and to take such lands as may be necessary for the establishment of their reservoirs, ponds, dams, works or power houses, and the right-of-way through all lands between their reservoirs, ponds, dams, works and power-houses, with the right to divert the water from such ponds or reservoirs and conduct same, by flume, ditch, conduit, water-way or pipe-line, or in any other manner, to the point of use for the generation of power, at said power houses, returning said water to its proper channel after being so used: Provided, that the power given under this section shall not be used to interfere with any mill or powerplant actually in process of construction, or in operation; and provided further, that water-powers, developed or undeveloped, with necessary land adjacent thereto for their development, shall not be taken; and that this section shall not authorize the taking of residence property, or vacant lots adjacent thereto, in towns or cities, or other residence, gardens, orchards, graveyards and cemeteries. Any provisions in any special charters heretofore granted in respect to the exercise of the right of eminent domain which are in conflict herewith, are hereby repealed.

Code, s. 2009; c. 64; 1903, c. 562; 1874-5, c. 203, s. 4; 1907, c. 74. As to eminent domain granted telegraph companies, see Hodges v. Tel. Co., 133-225; Phillips v. Tel. Co., 130-513-electric power and lighting companies, see Brown v. Power Co., 140-333; Brown v. Electric Co., 138-533street railway companies, Hester v. Traction Co., 138-288; Merrick v. Street Rwy., 118-1081; Railroad v. Street Rwy., 120-520.

1574. Proceedings to condemn land. Whenever such telegraph, telephone, electric power or lighting company shall fail on application therefor to secure by contract or agreement such right of way for the purposes aforesaid over the lands, privilege or easement of another person or corporation, it shall be lawful for such company, first giving security for costs, to file its petition before the superior court for the county in which said lands are situate, or into or through which such easement, privilege or franchise extends, setting forth and describing the parcels of land, privilege or easement over which the way, privilege or right of use is claimed, the owners of the land, easement or privilege, and their place of residence, if known, and if not known that fact shall be stated, and such petition shall set forth the use, easement, privilege or other right claimed, and must be sworn to, and if the use or right sought be over or upon an easement or right of way, it shall be sufficient to give jurisdiction if the person or corporation owning the easement or right of way

be made a party defendant: Provided, that only the interest of such parties as are brought before the court shall be condemned in any such proceedings, and if the right of way of a railroad or railway company sought to be condemned extends into or through more counties than one, the whole right and controversy may be heard and determined in one county into or through which such right of way extends: Provided further, that it shall not be necessary for the petitioner to make any survey of or over the right of way, nor to file any map or survey thereof, nor to file any certificate of the location of its line by its board of directors.

Code, s. 2010; 1899, c. 64, s. 2; 1903, c. 562; 1874-5, c. 203, s. 5. Private property may not be taken for public use, directly or indirectly, without compensation: Phillips v. Tel. Co., 130-513; Staton v. R. R., 111278; see also sections 2575 and annotations thereunder-therefore perma nent damages may be awarded land owner injured by putting telegraph poles on his land, Phillips v. Tel. Co., 130-513.

The act of congress of July 24, 1860, does not give authority to enter private property without consent of owner, but provides that where consent obtained, no state shall prevent use of such postroads for telegraph purposes by such corporations as avail themselves of its privileges: Ibid.

Telegraph line built along and on the right-of-way of railroad is an additional burden for which land owner entitled to just compensation: Ibid, and cases cited on page 524; Hodges v. Tel. Co., 133-225-so also where electric lines built along streets or sidewalks abutting owner entitled to compensation, Brown v. Electric Co., 138-533-so also where power company built dam and backed water on railroad right-of-way to detriment of land owner, Brown v. Power Co., 140-347.

Where proceedings to condemn portion of railroad right-of-way for telegraph poles, etc., land owner must be made party: Phillips v. Tel. Co., 130-513.

Land owner is not given the right hereunder to file petition for damage; he must sue in trespass: Ibid.

Purchaser of land subsequent to the taking and erection thereon of a telegraph line, may recover permanent damages, and in suit therefor telegraph company may acquire easement: Ibid.

Electric company can not cut down shade tree along sidewalk in city without abutting owner being justly compensated: Brown v. Electric Co., 138-533-and where company cut it down in absence of plaintiff and over protest of his wife, plaintiff entitled to punitive damages, Ibid.

Construction of street-car track does not impose any additional servitude upon property fronting on street so occupied so as to necessitate condemnation proceedings against the owners: Hester v. Traction Co., 138-288; Merrick v. Street Rwy., 118-1081-provided the railway track is so constructed as not to shut abutter out or off with embankments, Mer. rick v. Street Rwy., 118-1081.

The running of street cars over a railroad bridge imposes an additional servitude, for which street car company must render compensation: Railroad v. Street Rwy., 120-520.

1575. Copy of petition to be served. A copy of such petition, with a notice of the time and place the same will be presented to the superior court, must be served on the persons whose interests are to be affected by the proceeding at least ten days prior to the presentation of the same to the said court.

Code, s. 2011; 1874-5, c. 203, s. 6; 1899, c. 64, s. 3. Condemnation proceedings by telegraph company against railroad company to condemn rightof-way, to which landowner not a party gives no rights against landowner: Phillips v. Tel. Co., 130-513; Narron v. R. R., 122-856.

1576. Proceedings same as for railroads. The proceedings for the condemnation of lands, or any easement, or interest therein, for the use of telegraph, telephone, electric power or lighting companies, the appraisal of the lands, or interest therein, the duty of the commissioners of appraisal, the right of either party to file exceptions, the report of commissioners, the mode and manner of appeal, the power and authority of the court or judge, the final judgment, and the manner of its entry and enforcement, and the rights of the company pending the appeal, shall be as prescribed for condemning lands to the use of railroads.

Code, s. 2012; 1899, c. 64; 1903, c. 562. For condemnation proceedings by railroads, see sections 2580-2599.

Section refers to proceedings subsequent to filing of petition and service of required notices: Phillips v. Tel. Co., 130-525-in other words, refers to proceedings after parties are all before court, Ibid.

1577. Commissioners to inspect premises. In considering the question of damages when the interest sought is over an easement, privilege or right of way, the commissioners may inspect the premises or rest their finding on such testimony as to them may be satisfactory.

For certain powers of electric companies, see sections 1132, 1133.

CHAPTER 33.

ESTATES.

1578. Estates in tail converted into fee simple. Every person seized of an estate in tail shall be deemed to be seized of the same in fee simple; and all sales and conveyances, made bona fide and for valuable consideration, since the first day of January, in the year of our Lord one thousand seven hundred and seventy-seven,