43 Pa. Super. 119 | Pa. Super. Ct. | 1910
Opinion by
The appellant owns and lives on a farm in Lancaster county through which the railroad company, the appellee, located and 'constructed one of its branch lines. As the line was con
Some time later the appellant began this proceeding by filing his petition in the court of common pleas, in which, after describing the manner in which his property had been divided, he further averred as follows, “and the said Pennsylvania Railroad Company has neglected and refused to make a causeway or bridge over said road for the use of himself and- the occupants of his land to cross or pass over the same with wagons, carts and implements of husbandry as occasion may require, and has also neglected to maintain and keep in good repair any such causeway. That no crossing or causeway has been made at any place along the line of said railroad, where it crosses your petitioner’s land, for his benefit or use. That they have placed across their track on the east side of the plaintiff’s land a kind of crossing, put up, as petitioner believes, for the accommodation of the contractor of the said railroad, and is not located in any proper place, nor is it any benefit to your petitioner’s premises, and is not maintained nor kept in good repair by said railroad company.” The petition then prayed for the appointment of viewers to assess the damages sustained by the petitioner by reason of the neglect and refusal of the railway to make or to properly maintain a causeway in the manner provided by the act of assembly. The court below in the first place granted a rule to show cause why the viewers should not be appointed as prayed for. The defendant company filed an answer in which it traversed the allegations of fact in the petition alleging that it had constructed one crossing or causeway for the use of the plaintiff and was maintaining it in proper repair. The company then proceeded to take the depositions of witnesses against'the protest of plaintiff’s counsel who filed the following objection thereto: “I object to the taking of depositions on this rule for the reason that the matters referred to in the petition and
The eleventh section of the Act of February 19, 1849, P. L. 79, provides that when the company and the landowner are unable to agree upon the damages done to the land of such owner, “the court of common pleas of the proper county, on application thereto by petition either by said company or owner, shall appoint seven discreet and disinterested freeholders,” etc. Provision is then made for the view, report, etc., the various steps of such proceeding being so familiar that they need not here be quoted.
The twelfth section of the same act imposes upon the railroad company, in a case like the one now before us, the obligation of making and maintaining a good and sufficient causeway whenever the same may be necessary to enable the occupant of the land to cross or pass over the same with wagons, carts and implements of husbandry as occasion may require. In other words, this section of the act requires the railroad company to do precisely the things which the petition avers, in the very words of the act, it has neglected and refused to do. The act then provides that in case of such neglect or refusal after request made, the company “shall be liable to pay any person aggrieved thereby all damages sustained by such person in consequence of such neglect or refusal; such damages to be assessed and ascertained in the same manner as provided in the last section for the assessment of damages.” We have just seen under the eleventh section that whenever the owner presents his petition to the court setting out the necessary jurisdictional facts, it is made the duty of the court to appoint viewer's. It is upon this body, and not upon the court appointing them, that the law has imposed in the first instance the duty of ascertaining the facts upon which the owner’s claim for damages must rest. It would be a novelty entirely
We may concede that the court is invested with supervisory power over their report when made. If, for instance, upon exceptions to the report it should appear that the petition upon which the whole proceeding rests was lacking in the averment of any essential or jurisdictional fact, the whole proceeding might be set aside, but no authority we think can be found for the proposition that it was the legislative intent that the court could refuse the prayer of the landowner on a petition in which every necessary jurisdictional fact was properly averred. The law, however, does not make the finding of the viewers, even on questions of fact, necessarily conclusive. To either party aggrieved thereby the right of appeal is given, so that ultimately contested questions of fact may be passed upon by a jury sitting with a trial judge under the forms of the common law.
Now the proceeding contemplated under the twelfth section is precisely the same as if it were under the eleventh, and we are unable to escape the conclusion that the learned court fell into error in undertaking to determine, in the manner we have indicated, the truth of the allegations of fact averred in the petition and denied in the answer.
There are a number of considerations that must be kept in mind in determining whether or not the company has performed its statutory obligation. It is probably true that in the first instance the company is invested with discretion to locate a crossing or causeway they are required ro build and maintain. In the exercise of that discretion they certainly
It is clear of course under the language of the statute that the owner is given the right to but one crossing or causeway for his entire tract. The act does not attempt to define or describe the character of the structure, as that would necessarily vary according to the conditions and circumstances. One case might of necessity demand the construction of an overhead bridge, another of an archway or tunnel under the right of way, whilst in many cases the reasonable convenience of the owner can be satisfied and the obligations of the statute fulfilled by the construction of a grade crossing in a proper location.
As we have already stated, the learned counsel for the appellee has been unable to furnish any authority in support of the order appealed from, nor do we find the reasoning of the opinion of the learned judge below convincing. In Bredin v. Pittsburg & Western Railway Co., 165 Pa 262, the landowner filed his petition for the appointment of viewers. The railway company opposed the appointment for a number of reasons involving matters of fact, the chief among them being
Whilst, therefore, there is some paucity of authority on the exact question now before us, what we have is in harmony with the conclusion'that seems to plainly flow from an examination of the language of the act of assembly itself.
The order discharging the rule for the appointment of viewers is reversed and set aside. The rule is reinstated and a procedendo awarded. The costs of this appeal to be paid by the appellee.