Capertee Tramway Act of 1896 60 Vic (NSW)

CAPERTEE TRAMWAY. Preamble. An Act to authorise John Lang, of Sydney, in the Colony of New South Wales, merchant, his heirs, executors, administr: itors, and assigns, or any company duly registered for that purpose by agreement with the said John Lang, his executors, administra- tors, or assigns, to construct and maintain a 'Tramway from a point near the north- east corner of lease number twenty, in the parish of Gindantherie, county of Cook, to the Mudgee Railway ; and to use steam or other motive power upon the said Tram- ray, and to carry passengers, goods, live stock, ore, and other thines over the said Tramway, for hire, for the public generally. [7th October, 1896. | HEREAS the agricultural and pastoral lands to the west of the Mudgee line, in the valleys of the Capertee, Coco, and ncigh- bouring streams, are of such value and extent that they would be greatly convenienced and rendered of greater value and utility and enabled to produce crops that, owing to the difficulty of transit, are not at present put in, but would be if railway accommodation were provided, while the extensive mineral deposits known to exist in the mountain ranges would be explored and developed: And whereas John Lang, merchant, is desirous of constructing a tram- way from mineral lease number twenty, parish of Gindantherie, county of Cook, to the Mudgee Railway: And whereas it is proposed to construct such tramway through certain lands, streets, and roads described in the Schedule hereto, but the said tramway cannot be constructed without legislative authority: And whereas it is expedient to confer upon the said John Lang authority to construct, maintain, and use the said tramway subject "to the provisions herein- after contained: And whereas it is expedient that power should be conferred upon the said John Lang to transfer and assign his rights, powers, authorities, obligations, and liabilities under this Act to any company 1896. 60° VIC. 3 Capertee Tramway. company duly incorporated for that purpose: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parlinment assembled, and by the authority of the same, as follows :— 1. It shall be lawful for the said John Lang, his heirs, authority to con- executors, administrators, and assigns, or any company duly registered struct bamway. for that purpose by agreement with the said John Lang, his heirs, executors, administrators, or assigns, upon the terms and conditions and subject to the provisions hereinafter contained, to make, construct, control, and maintain a tramway for the carrying of minerals, fuel, goods, live stock, and other things for hire, also passengers, from a point near the north-cast corner of mineral lease number twenty, parish of Gindantherie, county of Cook, as aforesaid, as also along the line of tramway, by the route, and over, across, and along the roads, streets, rivers, watcr-cowrses, lands, and reserves, both public and private, described in the Schedule hereto; and to use so much of the said roads and streets, and to take and use so much of the lands and reserves, both public and private, as may be necessary for the purposes of such tramway, but so that the same shall not oceupy in part thereof on public or private lands a greater space in breadth than ninety-nine feet, including the support and foundations thereof: Provided that: it shall be lawful to deviate from the line of tramway deseribed in the Schedule to this Act, on cither side thereof, at any part thereof to a distance not exceeding one and a half miles, and the said tramway shall be constructed in a proper and workmanlike manner to the satis- faction of the Enginecy-in-Chief for Railway Construction and the Xailway Commissioners. 2. The gauge of the said tramway shall be at the option of the Cauge, levels of line, said John Lang, his heirs, executors, administrators, or assigns from ™P!™ ke. two feet to four fect cight and a half inches, and where it traverses public thoroughfares shall be laid and maintained at about the general level of such thoroughfares and so that the rails shall not project above the surface thereof; and the said John Lang, his heirs, executors, administrators, or assigns shall maintain in perfect order and repair the sail tramway, and the ballasting of the same between the rails of the suid tramway, and for the spaee of one foot six inches on each side of the said rails, and furthermore shall construct and maintain all necessary bridges and causeways in connection with the said tramway : Provided that such repairs, construction, and maintenance shall be carried out to the satisfaction of the Railway Commissioners, who may at any time call upon the said owner to provide such additional works as may, in the opinion of the Railway Commissioners, be necessary for the proper and sale working of the branch line, and should the said owner fail to carry out such works the Governor, with the advice of the Execu- tive Council, may declare the line to be closed, until such time as the works specified have been carried out, and if the line should be worked during such closure, the said John Lang, his heirs, executors, adminis- trators, or assigns shall be subject to a penalty not exceeding one hundred pounds per day for cach and every day the line is so worked. 3. The said John Lang, his heirs, executors, administrators, or Works for benefit of assigns shall construct and at all times maintain the following works ov for the safety of the public and the accommodation of the owners and occupiers of lands adjoining the said tramway, that is to say :— Such and so many convenient gates, bridges, arches, culverts, and Gates, bridges, &e. passages over, under, or by the sides of, or leading to or from the said tramway, as shall be necessary for the purpose of making good any interruptions caused by the said tramway to 4. 60° VIC. 1896. Capertee Traimway. to the use of the lands through which the said tramway shall be made; and such works shall be made forthwith after the part of the said tramway passing over such lands shall have been laid out or formed, or during the formation thereof. Fences. Also sufficient posts, rails, hedges, "dite hes, mounds, or other fences for separating the land taken for the use of the said tramway from the adjoining lands not taken, and protecting such lands from trespass, or the horses or cattle of the owners or occupiers thereof from straying thereout by reason of the said tramway, together with all necessary gates made to open towards such adjoining lands and not towards the said tram- way ; and all necessary stiles, and such posts, rails, and other fences shall be made forthwith after the taking of any such lands, if the owners thereof shall so require, and the said other works as soon as conveniently may be. Drains. Also all necessary arches, tunnels, culverts, drains, or other passages cither over or under, or by the sides of the said tramway, of such dimensions as will be sufficient at all times to convey the water as clearly from the lands lying near or affected by the said tramway as before the making of the said tramway, or as nearly so as may be, and such works shall be made from time to time as the said tramway works proceed : Provided always that the said John Lang, his heirs, executors, administrators, or assigns shall not be required to make such accom- modation works in such a manner as would prevent or obstruct the working or using of the said tramway, nor to make any accommoda- tion warks with respect to which the owners and occupiers have agreed to receive and shall have been paid compensation instead of making them. Penalty on persons 4, If any person omit to shut and fasten any gate set up at ates. fstenither side of the tramway for the accommodation of the owners or occupiers of the adjoining lands, so soon as he and the carvi ages, cattle, or other animals under his care have passed through the same, he shall forfeit for every such offence any sum not exceeding ten pounds. Authorised persons 5. The said John Lang, his heirs, executors, adininistrators, and {o have rightsover assiens, and all other persons duly authorised, shall have all necessary rights over the roads, streets, and lands described in the Schedule to this Act as are required for the construction, repair, completion, and use of the said tramway, and for the erection, maintenance, and repair, and all neeessary sidings and buildings in connection therewith: Provided that there shall be no interference with ordinary traffic beyond what is rensonable and necessary for such purpose. To carry passengers, 6. It shall be lawful for the said Jolin Lang, his heirs, exeeu- &e, for hire, tors, administrators, and assigns, his agents or servants, to carry passengers, goods, live stock, minerals, material, and other things over and along the said tramw: ay for hire 'for the public. The maximum tolls, rates, fares, and charges to be fixed by any by-laws made hereafter shall not execed the following, that is to say: Rates of farcs and (1) For passengers, a sum not exceeding twopence cach per mile. charges. (14) For goods and merchandise a sum not exceeding sevenpence per ton per mile, with such minimum rate for parcels as may be fixed by the by- laws: Provided postal mail-bags shall he carried on the saine conditions as provided by the Government railways. (111) For live stuck a sum not exceeding sixpence per head per mile for horses or horned cattle, and for sheep a sum not exceeding one penny per head per mile, with a minimum charge of fifteen shillings in cither case. (iv) For ores, kerosene shale, and other minerals net exceeding fourpence per ton per mile per truck load. 7. 1896. 60° VIC. Capertee Tramway. 7. The tramway shall be for the use of the public and for the conveyance for hire of passengers, goods, minerals, and live stock: Provided that all tolls he at all' times eh: weed equally to all persons, and after the same rate, whether per ton, | per mile, or otherwise, in respect. of all passengers and of all goods, minerals, live stock, or carriages of the same description, and conveyed or propelled by a like carriage or engine passing only over the same portion of line of tram- way under the same circumstances; and no reduction or adyance in any such tolls shall be made, directly or indircetly, in favour of or against any particular company or person travelling upon or using the tramway. 8. It shall be lawful for the said John Lang, his heirs, executors, administrators, and assigns to use and employ steam or ether motive power, and carriages, waggons, or trucks to be drawn thereby upon the said tramway: Provided that all rolling stock before and during use shall be subject to the approval of the Railway Commissioners : Provided further that if any rolling stock be used without such approval, the said John Lang, his heirs, executors, administrators, or assigns shall be subject to a penalty not exceeding one hundred pounds. 9. It shall be lawful for the said John Lang, his heirs, executors administrators, and assigns, and his and their workmen and servants to enter upon the Railway Commissioners' property at a point on the Mudgce line, and run a line parallel with the existing line for any neces- sary distance the point of entry, parallel line, the plans and work to be approved by the Railway Comunissioncrs, and such payment to be made for the use of any land or station as may, in the opinion of the Railway Commissioners, be deemed reasonable. AIL works necessary in connection with the junction of railway line to be done by the Railway Commissioners at the expense of the said John Lang. 10. In case of accidents or slips happening or being apprehended to the cuttings, embankments, or other works of the said tramway, * it shall be lawful for the said John Lang, his heirs, exceutors, adminis- trators, and assigns, and his or their workmen and servants, to enter upon the lands adjoining thereto at any time whatsoever for the pur- pose of repairing or preventing such accidents, and to do such works as may he necessary for the purpose; but in every such ease the said Joln Lang, his heirs, exee Wi Ors administrators, ov assigns shall, within fourteen days after such entry, make a report to the Railway Commis- sioners, specifying the nature of stich accident or apprehended aceident and of the works necessary to be done, and such powers shall cease and determine if the said Railway Commissioners shall, after considering the said report, certify that their exercise is not necessary for the publie safety: Provided also that such works shall be as little injurious to the said adjoining lands as the nature of the aecident or appre- hended accident will admit of and shall be executed with all possible despatch, and full compensation shall be made to the owners and occupiers of such lands for the loss or injury or inconvenience sustained by them respectively by reason of such works, the amount of which compensation, In case of any dispute about the same, shall be settled by arbitrdors in the manner hereinafter mentioned. 11. The said John Lang, his heirs, executors, administrators and assigns shall not be entitled to any mines of coal, slate, or other minerals under any land whereof the surface only is vested in him or them by virtue of this Act, except only such parts thereof as shall be necessary to be dug or carried away in the construction of the works hereby authorised, 'and such mines shall not be deemed to vest in the said John Lang, his heirs, executors, administrators, and assigns. 12. Tramway for use of public. To employ steam or other motive power. » Authority to enter upon Railway Commissioners' pros perty and construct: line of railway. Power to enter upon g lands to vidents, subject to certain restrictions. 3 Tohn Lang, his Ihe executors, adininist ratora, and assigns not entitled to minerals Lease of Crown lands may be granted. Compensation for resumptions, &c. Service of notice on owners of lands. Compensation to be settled by arbitration. 60° VIC. 1896. Capertee Tramway. 12. It shall be lawful for the Minister for Lands, with the consent of the Governor, with the advice of the Executive Council, to grant to the said John Lang, his heirs, administrators, or assigns, a lease of such Crown lands as may be necessary for the purposes of this Act at an annual rental of ten pounds per vear; and such lease as aforesaid shall operate and take effect merely as a license to the said John Lang to con- struct and maintain the works hereby contemplated, and shall terminate when the Government shall have resumed the tramway. 13. Before proceeding with the construction of the said tram- way extension or any section thereof, the said John Lang, his heirs, executors, administrators, or assigns shall give notice of the lands taken or required for the said tramway in manner hereinafter provided. Every such notice shall state the particulars of the lands so taken or required as aforesaid. That the said John Lang, his heirs, executors, administrators, or assigns is or ave willing to treat as to the compen- sation to be made to all parties for the lands taken or to be taken, and the damage sustained or to he sustained by them by the exercise of the powers conferred by the Act, and shall demand in the said notice from such parties, and the said parties are hereby required to deliver forthwith to the said John Lang, at the cost of the said John Lang, his heirs, executors, administrators, or assigns, the particulars of their estate and interest in such lands, and of the claims made by them in respect hereof, and such other particulars in such form as may be prescribed together with an abstract of their title to such land, and if they claim in respect of damage the nature of the damage which they have sustained or will sustain by reason of the taking of such lands. 14. Subject to the provisions hereinafter contained as to com- pensation to absent owners, all notices required to be served by the said John Lang, his heirs, executors, administrators, and assigns upon the parties interested in or entitled to sell any such lands shall either be served personally upon such parties or left at their last usual place of abode (if any such can after diligent inquiry be found), and in case any such parties shall be absent from the Colony, or cannot be found after inquiry, shall be left with the occupier of such lands, or if there be no such occupier shall be affixed upon some conspicuous part of such lands; and a copy of such notice shall be published by and at the expense of the said John Lang once a week for four consecutive weeks in a Sydney newspaper, and similarly in the Government Gazette, and shall also be posted and kept posted at the post office nearest to the land to which such notice refers for a period of one month. 15. If within sixty days of the commencement of this Act the said persons other than the Railway Commissioners through whose land the tramway shall pass, or any of them, and the said John Lang, his heirs, executors, administrators, or assigns shall not agree as to the amount of compensation to be paid by him or them for the said lands belonging to the said parties, or any of them, or for any damage that may be sustained by them or him, by reason of the execution of the works, or if any other question as to compensation shall arise under this Act, the amount of such compensation shall be settled by arbitra- tors in manner hereinafter mentioned (that is to say), unless both parties concur in the appointment of a single arbitrator, each party on the request of the other shall nominate and appoint an arbitrator to whom such dispute or other matter shall be referred; and any appointment of an arbitrator shall be under the hand and seal of such person or persons respectively; and such appointment shall be delivered to the arbitrator or arbitrators, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made; and after any such appointment shall have been made, neither 1896. 60° VIC. Capertee Tramwvay. neither party shall have power to revoke the same without the consent of the other, nor shall the death of either party operate as a revocation ; and if for the space of fourteen days after such dispute or other matter shall have arisen, and after a request. in writing shall have been served by the one party on the other party to appoint an arbitrator, such last- mentioned party shall fail to appoint such arbitrator, then upon such Taihu it shall be kuvful for the Attorney-General for the time being of the said Colony, on the application of the party who has himself appointed an arbitrator, to appoint such arbitrator to act on behalf of both parties, and such arbitrator may proceed to hear and determine the matters which shall he in dispute, and in such case the award or determination of such single arbitrator shall be final and conclusive : Provided that the said John Lang shall compensate owners for all lands taken at such price as may be agreed upon or awarded by the arbitrators, together with interest at the rate of six pounds per eentum per annum from date of resumption. 16. If before the matter so referred shall be determined any arbitrator appointed by either party shall die, or become ineapable, or refuse, or for fourteen days neglect to act as arbitrator, the party by whom such arbitrator was appointed may nominate and appoint in writing seme other person to act in his place, and if for the space of seven "days after notice in writing from the other party for that purpose he fail to do so, the remaining or other arbitrator may procced alone; and every ¢ arbitrator so to be substituted as woresaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such his death, refusal, neglect, or disability as aforesaid. Where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint in writing under their hands an umpire, to decide any matters on which they shall differ, or which shall be referred to them under the provisions of this Act, and if such wnpire shall dic, or refuse, or for seven days neglect to act after being called upon so to do by the arbitrators or ¢ cither of them, they shall forthwith after such death, refusal, or neglect appoint another umpire in his place, and the decision of every such umpire upon the matters so referred to him shall be final. 18. If in cither of the cases aforesaid the arbitrators shall refuse, or for seven days after request of either party to such arbitrators neglect {0 appoint an umpire, it shall be lawful for the Attorney- General for the time being, on the application of either party to such arbitration to appoint an umpire, and the decision of such umpire on the matters on which the arbitrators dilfer or which shall be referred to him under this Act shall be final. 19. If, when a single arbitrator shall have been appointed, such arbitrator shall dic or become incapable, or shall refuse, or for fourteen days neglect to act before he shall have made his award, the matters referred to him shall be determined by arbitration under the provisions of this Act, in the same manner as if such arbitrator had not been appointed, 20. If when moze than one arbitrator shall have been appointed, and when neither of them shall die, become incapable, refuse, or neglect to act as aforesaid, such arbitrators shall fail to make their award within fourteen days after the day on which the last of such arbitrators shall have been appointed, or within such extended term (if any) as shall have been appointed for that purpose by both of such arbitrators, under their hands, the matters referred to them shall be determined by ihe umpire to be appointed as aforesaid. b 21, Proceedings in case of disability of arbitrator. Appointment of umpire. Neglect to appoint umpire, In case of disahiiity of single arbitrator, Arbitrators failing to make their award, matters referred to unpire, 8 60° VIC. 1896. Capertee Tramway. Arbitrators may 21. The said arbitrator or arbitrators, or his or their umpire, grder Progueion of may call for the production of any documents in the possession or power of either party, which they or he may think necessary for determining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose. Deelaration by 22. Before any arbitrator or umpire shall enter upon the con- arbitrators orumpire. sideration of any matter referred to him he shall, in the presence of a justice of the peace, make and subscribe the following declaration, that is to say,— I, A.B., do solemnly and sincerely declare that I will faithfully and honestly and to the best of my skill and ability hear and determine the matters referred to me under the provisions of the Capertce 'Tramway Act. Made and subscribed in the presence of C. D. And such declaration shall be annexed to the award when made; and if any arbitrator or umpire having made such declaration shall wilfully act contrary thereto he shall be guilty of a misdemeanour. Damage and 23. For the purpose of ascertaining the amount of compensation cousideved by. to be paid by the said John Lang, his heirs, executors, administrators, arbitrators, or assigns regard shall in every case be had by the arbitrators or their umpire (as the case may be), not only to the value of the land to be taken but also to the damage (if any) to be sustained by the owner of the lands by reason of the severing of the lands taken from other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of any of the powers under this Act by the said John Lang, his heirs, executors, administrators, or assigns, and they shall assess the same according to what they shall find to have been the valuc of such lands, estate, or interest at the time notice was given of such lands being required or having been taken: Provided always that in ascertaining the amount of such compensation, the arbitrators or their umpire shall take into consideration by way of set off or abate- meut any enlargement in the value of any land belonging to such owner, and so severed as aforesaid by the construction of the railway extension or any section thereof. Cost of arbitration, 24. The amount of the costs of any such arbitration and incident how tobe borne. —_ thereto shall be in the discretion of the arbitrators, and the costs of the arbitrators shall be borne by the parties in equal proportions, unless the amount awarded shall be one-fourth or more less than the amount which shall have been offered by the said John Lang, his heirs, exccu- tors, administrators, or assigns, in which case the whole costs of the arbitration, and also the costs of and incident to the said arbitration, Costs may be taxed. Shall be paid by the claimant: Provided that if either party shall he dissatisfied with the costs allowed by the said arbitrators as aforesaid, the costs may be taxed by the Prothonotary, or other proper officer of the Supreme Court, and the amount allowed by such officer shall be the amount of costs to he paid. Arbitrators or 25. The arbitrator, arbitrators, or umpire shall deliver their or award to John Lang, his award in writing to the said John Lang, his heirs, executors, his heirs, executors, administrators, or assigns, who shall retain the same, and shall forth- seine and with, on demand, at his or their own expense, furnish a copy thereof to the other party, and shall at all times, on demand, produce the said Compensation to be award, and allow the same to be inspected or examined by such party paid within sixty or any person appointed by him for that purpose, and the amount laysafter publication : . "ape . ° A . of award, awarded shall be paid within sixty days after the publication of the award. 26. 1896. 60° VIC. Capertee Tramway. 26. 'The submission to any such arbitration may be made a rule of the Supreme Court on the application of either of the parties. 27. No award made with respect to any question referred to arbitration under the provisions of this Act shall be set aside for irregularity or error in matter of form. 28. The said John Lang, his heirs, executors, administrators, or assigns shall make compensation and satisfaction, to be ascertained and recovered in case of difference in the manner hereby provided, for temporary, permanent, or recurring injury, and all other damage, loss, costs, charges, and inconvenience which may in anywise be occasioned to the owners and occupiers of the lands through which the said tramway shall pass by the non-performance or negligent performance by the said John Lang, his heirs, executors, administrators, or assigns of any of the matters or things hereby required or authorised to be performed by them. 29. In every case where the said John Lang, his heirs, executors, administrators, or assigns shall take temporary possession of lands by virtue of the powers hereby granted, it shall be incumbent on him or them, within three months after entry upon such land, upon being required so to do, to pay to the occupier of said lands the value of any crop or dressing that may be thereon, and damaged or injured by such entry, as well as full compensation for any other damage of a temporary nature which he may sustain by reason of such entry, and shall also from time to time during their occupation of the said lands pay half-ycarly to such occupier, or to the owner of the lands, as the case may require, a rent to be fixed by two justices in ease the parties differ; and shall also, within two months after such entry, pay to such owners and occupiers, or deposit in a bank for the benefit: of all parties interested, as the case may require, compensation for all permanent or other loss, damage, or injury that may have been sustained by them by reason of the exercise as regards the said lands of the powers hereby granted, including the full value of all clay, stone, gravel, sand, and other things taken from such lands. 30. If the owner of any lands required to be taken for the con- struction of the said tramway is absent from the Colony, or cannot upon inquiry be found, or is under disability, or if any such lands are vested in persons who have respectively only limited or qualified interests therein, and who cannot enter into binding agreements with the said John Lang, his heirs, exceutors, administrators, and assigns, for the purchase of such lands, ov join in submitting their claims for compensation to arbitration as hereinbefore provided, the purchase money or compensation payable by the said John Lang, his heirs, executors, administrators, or assigns, in respect of such lands, shall be determined by the valuation of a surveyor, to be nominated as herein- after mentioned. 31. Upon application by the said John Lang, his heirs, execu- tors, administrators, or assigns to two justices, and upon such evidence as may be satisfactory to them that there isno person in the Colony or to be found who can enter into a binding contract with the said John Lang, his heirs, executors, administrators, and assigns, or join with the said John Lang, his heirs, executors, administrators, or assigns, in submitting his claims for compensation to arbitration in respect of any lands required to be taken for the construction of the said tramway, and that the provisions as to services of notices have heen complied with, such justices shall by writing under their hands nominate a licensed surveyor for determing such compensation as aforesaid, and such surveyor shall determine the same accordingly, and shall annex to his valuation a declaration in writing subscribed. by him of the correctness thereof. 32. Submission may be made a rule of Supreme Court. Award not to be set aside for irregularity. Compensation in causes of negligence. Compensation in cases of temporary possession. Proceedings in absence of owner. Justices to appoint surveyor in certain cases. Declaration by surveyor, Production of valuation, &c. Cost of valuation how borne, Compensation not exceeding £50 how to be dealt with. Compensation how dealt with in absence of owner, Cases of dispute Sheriff may issue warrant. 60' VIC. 1896. Capertee Tramway. 32. Before such surveyor shall enter upon the duty of making such valuation as aforesaid, he shall, in the presence of such justices or one of them, make and subscribe the following declaration at the foot of such nomination, that is to say— T, A.B., do solemnly and sincerely declare that I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me. Made and subscribed in the presence of ALB. And if any such surveyor shall corruptly make such declaration, or having made such declaration shall wilf ully act contrary thereto, he shall be guilty of a misdemeanour. 33. The said nomination and declaration shall be annexed to the valuation to be made by such surveyor, and shall be preserved together therewith by the said John Lang, his heirs, executors, administrators, or assigns ; and they shall at all times produce the said valuation and documents on demand to all parties interested in the lands com- prised in such valuation. 34. All the expenses of and incident to any such valuation shall be borne by the said John Lang, his heirs, executors, administrators, or assigns. "35. If the amount of compensation determined by any such surveyor does not exceed the sum of fifty pounds, it shall; except in the cases where the owner is absent from the Colony, or cannot be found, be paid by the said John Lang, his heirs, executors, adminis- trators, and assigns to the person or persons for the time being entitled to the rents and profits of lands in respect whereof the same shall be payable for their own use and benefit, or in the case of the coverture, infancy, idiotcy, lunacy, or other incapacity of any such persons, then such money shall be paid for their use to their respective husbands, guardians, committees, or trustees of such persons. 36. If the amount of compensation determined by any such surveyor as aforesaid exceeds the sum of fifty pounds, or in the cases where the owner is absent from the Colony, or cannot be found, whether it exceeds the sum of fifty pounds or not, it shall be paid by the said John L