immediate or imminent, they shall so state in writing to such probate judge, who shall thereupon cause a copy of said finding of said persons to be served on the owner or owners, or person or persons in charge thereof, with a notice requiring him or them to proceed forthwith to make the same secure, or to draw the water therefrom without delay; and unless such person or persons shall comply with such notice in the shortest practicable time, or unless the said person or persons, upon a hearing before said probate judge, upon notice to the complainant thereof, shall show that the said dam or reservoir is secure, or that no property or life would be endangered by its giving way, it shall be the duty of said probate judge to issue his writ commanding the sheriff to draw from said dam or reservoir the waters thereof.

Proceeding to procure jury tion as to whether dam or reservoir is secure.

SEC. 7. Upon such trial it shall be the duty of the probate judge to prepare a list from among the persons of the county competent to serve as jurors, of the names of twelve persons, who, in his judgment, are best qualified to judge of the sufficiency of any dam or reservoir, who may be interrogated as to causes of challenge for cause by any person interested, and if any shall not be indifferent as between the parties, or other cause of challenge for cause shall exist, and said person shall be to try queschallenged, the probate judge shall excuse him and summon others until twelve discreet persons remain against whom no challenge for cause exists, and the complainant and others, if any prosecuting with him, as prosecutors, and the owner, or persons complained of, or in charge of, or owning said dam or reservoir, as defendants, shall alternately strike from said list until it is reduced to six, who shall compose the jury to try the issue or issues named in section 5 of this act, or the parties aforesaid, if they can agree, may select the jury therefor.

SEC. 8. The person or persons, corporation or company, owning or using said reservoir or dam and the waters therein, may appeal from any decision of the probate judge and the verdict of the persons appointed by

Party owning

dam or reser

voir may ap

peal from debate judge to

cision of pro

district court

such probate judge, to the district court, as appeals are taken in other cases, upon giving to any person or persons owning property on said stream below said dam or reservoir which may be destroyed by the bursting thereof, and who shall have appeared and claimed such security in such sum or sums as the probate judge may determine, security against loss or damage resulting from the bursting of said dam or reservoir, which said appeal shall be tried by a jury, who may hear testimony as to the questions involved, and shall also personally inspect the dam, reservoir, or stream, and such appeal shall stay all proceedings as to said dam or reservoir, and the waters therein, except when it shall appear that the danger therefrom is imminent, as aforesaid, in which case it shall be the duty of the said probate judge, while the court over which he presides has jurisdiction in the case, and of the judge of the district court after the case is appealed to that court, by proper writs of prohibition, mandamus, or assistance, to be issued provisionally, to protect life and property against any threatened assault upon either, by the careless or insecure accumulation of waters by any person or persons whomsoever, in the manner aforesaid; and if any person or persons shall resist any officer in the execution of any writ so issued by the said probate judge, or justice of the district court, or shall fail to assist such officer under officer in the execution of such writ, when thereto requested by him, the person or persons being thereof convicted shall be punished as for resisting an officer, as now provided by law.

Trial on ap

peal.

Penalty for resisting an

this act.

Compensation of jurors

SEC. 9. The persons named in sections 3 and 7 of this act, serving as jurors, shall be entitled to all their necessary expenses of transportation, and mileage and per diem of jurors, as provided by law; and if it shall be under this finally determined that no cause existed for the complaint, the complainant shall pay the costs thereof; and in the first instance, such complainant shall advance the necessary expenses of such jurors and their fees, but if the said complaint is true, the person or persons, corporation or

act.

company, owning, using, or proposing to use said dam or reservoir, shall pay the same, and judgment shall be rendered accordingly, in which case the same shall be a lien upon the said reservoir, and the ditches leading thereto and therefrom, and the waters thereof.

SEC. 10. That when hereafter any person, company, or corporation, engaged in constructing any dam or reservoir for the accumulation of water, shall be complained of by any person or persons whose life or property may be endangered by the breaking thereof, that the same is insecure, insufficient, and dangerous, it shall be the duty of the probate judge to appoint three experts, under whose supervision the same shall be thereafter constructed, nor shall the same be filled with water until the owner or owners thereof shall have filed in the office of the clerk of the probate court a certificate, signed by said experts, that the same is so built that no danger need to be apprehended therefrom; and whenever any such complaint shall be made of any reservoir heretofore built of like purport, it shall be the duty of the probate judge to proceed as in this section is provided, and jurisdiction is hereby conferred upon said court to protect, by proper orders made in proceedings therefor, all persons, towns, and communities, against dangers resulting from insecure reservoirs.

When ap

pointment of intend

experts to su

construction

of dam or resmade.

ervoir to be

Penalty for erecting or maintaining dam or reservoir so as to

SEC. 11. Any person, persons, or company guilty of filling, erecting, constructing, or maintaining a dam or reservoir which is so filled, erected, constructed, or maintained as to endanger life or property in the man'ner heretofore in this act provided, shall be deemed anger life guilty of erecting, constructing, filling, or maintaining a nuisance, and being thereof convicted, shall be punished as provided by law.

Approved February 16th, 1877.

or property.

Ditches and

flumes to be

kept in repair

Penalty if the

owner of

ditch or flume

allow same to

overflow public highway.

Duty of road

supervisors

under this act

DITCHES AND FLUMES.

AN ACT to compel owners of ditches or flumes to keep the same in repair.

Be it enacted by the Legislative Assembly of the Territory of Montana:

SECTION 1. The owners of all ditches or flumes shall keep the same in such repair so that the water therein shall not overrun the sides thereof and run into and upon any public highway in the territory of Montana.

SEC. 2. Should the water of any ditch or flume at any time overflow its banks, and run into or upon any public highway by reason of the negligence of the owner, the owner thereof shall be deemed guilty of a misdemeanor, and, upon conviction thereof in any court of competent jurisdiction, shall be fined in a sum not less than fifty dollars nor more than one hundred dollars.

SEC. 3. It is hereby made the duty of all road supervisors, in their respective districts, to prosecute all persons violating the provisions of this act, and any such supervisor failing to perform the duty herein required of him shall be subject to a fine of not less than twenty dollars nor more than fifty dollars.

SEC. 4. This act shall be in force from and after its passage.

Approved February 1st, 1877.

Canvass of

ELECTIONS.

AN ACT concerning elections.

Be it enacted by the Legislative Assembly of the Territory of Montana:

SECTION 1. That section 27 of an act entitled "An Act to provide for biennial elections in the territory of votes cast in Montana," approved February 11th, 1876, be and the same is hereby amended to read as follows: "SECTION

county.

27.

After the fifteenth day after the close of any elec

tion held under the provisions of this act, or sooner if all the returns shall be received, the chairman of the board of county commissioners, or in his absence any other member of the board, shall, taking to his assistance the probate judge or a justice of the peace, and one other officer of the county, or any county officer, proceed to open the returns and make abstracts of the votes. Such abstracts of votes for delegate to congress shall be on one sheet; the abstract of votes for members of the legislative assembly shall be on another sheet; and the abstracts of votes for territorial and district officers shall be on another sheet; and the abstracts of votes for county and township officers shall be on another sheet. And it shall be the duty of the clerk of said board of county commissioners immediately to make up a certificate of election to each of the persons having the highest number of votes for members of the legislative assembly, county and township officers, respectively, and to deliver such certificates to the persons entitled to them by mailing the same in 'registered' letters to the address of such persons respectively: Provided, That when a tie vote shall exist between two or more persons for any district or county office, the clerk of the board of county commissioners shall immediately give notice of another election, giving at least ten days notice. And it shall be the duty of the clerk of the board of county commissioners of such county, on receipt of the returns of any general or special election, to make out his certificate, stating therein the compensation to which the judges and clerks of the election shall be entitled for their services, and lay the same before the county commissioners at their next session, and the board of county commisoners shall order the compensation aforesaid to be paid out of the county treasury."

SEC. 2. All acts and parts of acts in conflict with

this act are hereby repealed.

SEC. 3. This act shall take effect and be in force from and after its passage.

Approved February 15th, 1877.