Bowers v. Braddock Borough

172 Pa. 596 | Pa. | 1896

Opinion by

Mr. Justice Geeen,

The first and principal question urged in the argument of the appellant is, “ does the act of May 16, 1891, P. L. 75, supersede and repeal the act of March 24, 1878, P. L. 129, in so far as it relates to the assessment of damages for change of grade in boroughs ? ” We have just filed an opinion in the case of Seaman v. The Borough of Washington, ante, 467, in which we decide this question in the negative, and hold that the act of 1878 is not repealed by the act of 1891. For the reasons there stated we make the same ruling in the present case.

As to the second question presented, we can see no reason why the court below committed error in refusing to set aside the viewers’ report and send back the case to the same or new viewers. Even if we regard the affidavits of the officials on which the application was based, which we cannot do, they simply make out a case of negligence on their own part in not regarding a proper service of notice of the proceedings to assess the damages.

As to the third question, Was the appeal of the borough taken in time, it is perfectly clear that it was not. The general act of June 13, 1874, P. L. 283, which gives an appeal to the common pleas in all cases of the assessment of damages for property taken, injured or destroyed, directs that such appeal shall be taken, “ within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.” Whatever may be the precise meaning of the words “ ascertainment of damages,” it certainly does not mean an ascertainment after the report of the viewers has been filed in court, because the filing of the report is a definite act which cannot occur until after the viewers have acted in the ascertainment of the damages. Therefore it is safe to say that the time within which the appeal must be filed is thirty days from the filing of the report. This very point was decided in the case of Gwinner v. Railroad, 55 Pa. 126. The filing of exceptions to the report of viewers has nothing to do with the right of appeal. That right can only be exercised according to the terms in which it is given. The hearing of the exceptions can go on and be completed before the case is actually tried, and if the exceptions are decided favorably to the appellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed. The assignments of error are all dismissed.

Judgment affirmed.