the use or purchase thereof, of when, by reason of the legal incapacity at absence of such owner or owners, no such agreement can be made, a particular description of the lands or materials, so required for the use of the said company, in the construction or repairs of said road, shall be given in writing, under oath or affirmation of some engineer or proper agent of the company, and also the name or names of the occupant or occupants, if any there be, and of the owner or owners, if known, and their residence, if the same can be ascertained, to one of the justices of the supreme court of this state, who shall cause the said company to give notice thereof to the persons interested, if known and resident in this state, or, if unknown or out of this state, to make publication thereof, as he shall direct, for any term not less than twenty days, and to assign a particular time and place for the appointment of commissioners, hereafter named; at which time and place, upon satisfactory evidence to him of the service or publication of such notice as aforesaid, he shall appoint, under his hand and seal, three judicious impartial, and disinterested persons, not resident in the county in which the lands or materials in controversy lie, or the owners reside, commissioners to examine and appraise the said lands or materials, and to assess the damages; the said commissioners are also directed and required to assess the damages which any individual may sustain by said road, arising from the removing, making, and maintaining the fencing on the line of the said route, through any improved lands through which the same may run, upon such notice, to be given to the persons interested, as shall be directed by the justice making such appointment to be expressed therein, not less than twenty days; and it shall be the duty of the said commissioners, having first taken and subscribed an oath or affirmation before some person duly authorized to administer an oath, faithfully and impartially to examine the matter in question and to make a true report, according to the best of their skill and understanding, to meet at the time and place appointed, and proceed to examine the said land, or materials, and make a just and equitable estimate or appraisement of the value of the said lands materials, and assessment of the damages sustained by the owner or owners thereof, by reason of the taking the same for the use of the company, which shall be paid by the company for such lands or materials, or damages aforesaid; and the said commissioners shall make a report in writing, under their hands, or the hands of any two of them, of the value of said lands, materials and damages, which report shall, within ten days thereafter, be filed, together with the aforesaid description of the land or materials, and the appointment and oaths and affirmation aforesaid, in the clerk's office of the county in which the said lands and materials are situate, to remain of record therein; and the said report, or a copy thereof, certified by the clerk of the said county, shall at all times be considered as plenary evidence of the right of the said company to have, hold, use, occupy, possess and enjoy the said lands or materials, and of the right of the said owner or owners to recover the amount of the said valuation and assessment, with interest and costs, in an action of debt, in any court of competent jurisdiction, in a suit to be instituted against the company, if they shall neglect or refuse to pay the same for twenty days after demand made of their treasurer, and until the same be paid, shall constitute a lien upon the property of the company in the nature of a
