Gettysburg Memorial Ass'n v. Sherfy, 117 Pa. 256

Gettysburg Memorial Ass'n v. Sherfy

117 Pa. 256 | Pa. | 1887

Opinion,

Me. Justice Steeeett:

The Gettysburg Battlefield Memorial Association, plaintiff in error, was duly incorporated by the act of April 30, 1864, and supplement of April 24, 1886, for the purpose of securing portions of the battlefield of Gettysburg, preserving the natural and artificial defences and perpetuating the prominent points with memorial structures, laying out and maintaining roads and avenues for accommodation of thp public, etc. By the 3d section of the supplement the association is authorized ' to enter upon and appropriate private property for the use of said public roads and avenues; and to that end, the provisions of the general railroad law of 1849 and its supplements, relating to the appropriation of land, adjustment of damages, etc., are extended to the association. Acting under the authority thus given, the plaintiff in error surveyed and laid out an avenue or road upon lands of defendant; and, being unable to agree with him as to the amount of damages that should be paid, resort was had to the provisions of the act last above referred to.' A bond was tendered, refused and approved by the court, and viewers, duly appointed for the purpose, assessed the damages at $1,000. From that assessment the association appealed in due form; but, for the reasons that the costs were not paid and no recognizance given, the court, on application of defendant in error, struck off the appeal and entered judgment for the amount awarded by the viewers. The sole question is whether the court erred in thus striking off the appeal.

The act of April 9, 1856, supplementary to the railroad law of 1849 and explanatory of the act of April 20,1855, provides that “upon the report of said viewers or any four of them being filed in said court, either party, within thirty days thereafter, may file his, her or their appeal from said report to the court.” It was under this clause of the act that the appeal was taken; and there appears to be nothing, either in it or in *259any other clause of the act, requiring appellant to pay costs or enter into a recognizance for the payment thereof, as a condition of its right to appeal. That right is statutory and the court has no power to impose terms not required by the act. We think therefore that the court erred in sustaining the motion of plaintiff below.

Order of court striking off appeal and confirming report of viewers is reversed and set aside and it is ordered that the appeal be reinstated and record remitted for further proceedings, on said appeal.