126 Pa. 305 | Pa. | 1889
Opinion,
These were writs of certiorari to review the proceedings in a road ease. It appears that on June 15, 1887, the court below appointed viewers to view and lay out a public road in YVarriorsmark township, Huntingdon county. The viewers examined the proposed route, reported in favor of the road, and assessed the damages. Their report was approved nisi. On December 12, 1887, a petition was presented for a review, and on the same day viewers were appointed as prayed for in the petition. About the same time, certainly at the same term, each of the defendants in error presented a petition asking the court to set aside the report of the jury, so far as the assessment of damages was concerned, upon the ground that said damages were inadequate, and to appoint a jury to assess the damages. It was in reality an application for review upon the question of damages. The court below appointed a jury upon each petition, who reported damages slightly in excess of those awarded by the original jury of view. The jury of review were equally divided. Three of their number were in favor of the new road; the other three were against it. Under these circumstances the court below held that the original report must stand. The costs of the three reviews upon the question of damages were ordered to be paid by the county. This order is assigned for error. The important question presented by the record is the power of the court below to appoint a separate jury to re-assess the damages.
The first section of the act of May 14, 1874, P. L. 164, provides, “ That hereafter it shall be the duty of all persons appointed in the, several counties of this commonwealth to view and review any public or private road or bridge, if they
Section 2 of said act repeals all acts and parts of acts inconsistent with the above provisions.
The prominent feature in this act is the change in the mode of assessing damages. It provides, as clearly as language can do, that the jury appointed to view and lay out a road, and also a jury of review, shall assess the damages caused thereby. To this extent the general road law of 1836 is repealed. The reasons which induced the legislature to make this change are not expressed in the act, yet it is not difficult to see why it was done. It simplifies the proceedings and makes them less expensive. This alone would justify the change. But there is another and more important reason. Under the old system, the assessment of damages was a separate proceeding, by another jury, subsequent to the location of the road by the viewers and the approval of their report. It sometimes happened that the viewers located a road where it was subsequently ascertained that the damages for opening it were so large as to be greatly disproportioned to the public necessity for the road, and the ability of the township tó pay. In such cases had the jury of view also ascertained the damages they might well have hesitated to report in favor of the road. The expenses of opening a road, and the amount of damages to be paid to the landowners, are legitimate matters of consideration by a jury of view when they are called upon to decide upon the propriety of locating a road. We can readily understand, therefore, why the act of 1874 required the jury of view to pass upon both the location of the road and the assessment of the damages.
The act of 1886 contains no provision for a review upon the question of damages. The Newville Road ease, 8 W. 172, rules this point. The syllabus of that ease, owing to a typographical blunder, is incorrect, and. is in direct conflict with tho decision. It was said by Sergeant, J., referring to the question of damages: “ An adequate remedy is given to all parties interested by' the power possessed by the court to disapprove and set aside the assessment for any impropriety in the jury or defect in the proceedings, and to award another view in lieu of the former. On carefully examining, however, the whole of the provisions of this act (1886) I am satisfied that the right to a review does not extend to the case of the assessment of damages. In the first place tho action of the jury in these cases is not so much that of viewers (though they are directed to view the premises and are frequently termed viewers), as that of assessors of damages, which is the great object qf their appointment and their main business. And in
The order of the court below appointing viewers upon the petition of the respective defendants in error to assess damages, and all subsequent proceedings thereon, are reversed and set aside in each case, at the costs of the respective petitioners.