Sec. 2. If such railroad corporation, lessee, assignee, receiver or other person or corporation aforesaid neglect or refuse to construct such fence, barriers or cattle-guards as provided in the preceding section, the owner of any lands abutting on the land or right of way of said railroad shall have the right (after giving thirty (30) days' notice in writing of his intention so to do, to be served upon the nearest freight receiving and shipping agent employed by the company or person controlling and operating said railroad), to enter upon the land, right of way and track of said railroad, and may build, erect and construct such fences, barriers and cattle-guards as therein provided for, so far as the lands of such landowner abuts on the land and right of way of such railroad, and when he has completed the same, he may present for payment to the agent of such corporation or person controlling and operating such road at the nearest shipping station to the tract of land so fenced, an itemized statement, verified by the affidavit of such person, or his agent, of the expenses thereof, including material and labor, and if such corporation or person so operating said road neglects or refuses for sixty (60) days to pay said account, such landowner may recover, in any court of competent jurisdiction, the reasonable value of such fence, barrier and cattle-guards from said corporation or person operating the same, together with reasonable attorney's fees: Provided, however, If such railroad corporation or other person operating the same, so liable for the value of such fence, cattle-guards and barriers, shall, within said sixty (60) days, make a tender of a sum of money to such person in satisfaction of such claim or liability against such corporation or person, and such person to whom such tender is made shall refuse to accept the same in satisfaction of such claim, and shall sue for the recovery of the value of such fence, barriers and cattle-guards, and shall not recover more than the amount so tendered, he shall not in such action recover attorney's fees.
Formerly: Acts 1885(ss), c.91, s.2.
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