91 Pa. 260 | Pa. | 1879
delivered the opinion of the court,
It may be that the exceptants below, who are the plaintiffs here, would ‘have been entitled to a trial by jury had they taken the proper steps to obtain it. Their exception was as follows:—
“ And the said exceptants also demand that the question as to the damage done to their real estate by the appropriation of the same for public use as a highway, may be inquired of by a jury, and that the court will form an issue to try the same.”
The 8th sect, of art. 16 of the constitution provides that in all cases of appeal from the assessments of damages made in such cases by viewers or otherwise, the amount of such damages shall, on the demand of either party, be determined by a jury according to the course of the common law. The Act of 13th June 1874, Pamph. L. 283, was intended to give effect to this constitutional provision. By that act an appeal is given to the Court of Common Pleas, to be taken “ within thirty days from the ascertainment of the damr ages or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.” The 2d sect, of said act requires that the appeal shall be signed by the party taking the same, or his agent or attorney; and that it shall be accompanied by an affidavit that it was not intended for delay, &c. None of these requisites was complied with. In fact there was no appeal to the Common Pleas. There was a demand upon the Court of
The 5th and 10th assignments of error relate to the question of notice. It was not alleged that the property holders had no notice of the meeting of the viewers, but that such notice does not sufficiently appear by the report. The report sets forth “ that they met pursuant to legal notice.” This is not as full as it might and ought to have been, yet we think it sufficient, in the absence of an allegation by any property holder that he had not received notice. The question of notice is one of fact, and we may well presume the court below decided it correctly. In the tenth assignment, which refers to the supplemental report, the averment is made directly that in point of fact no notice was given by the viewers of the time and place of meeting to prepare their supplemental report. There was no necessity of giving notice as to that, and it is referred to merely to show that the omission of such an averment in the exception to the original report was not an accident. The report was referred back to correct clerical errors and omissions. That this may be done is well settled: Boyer’s Road, 1 Wright 257.
The improvements appear to be sufficiently noted in the supplemental report. The report was sent back to the jury partly for that purpose. This was regular under Potts’s Appeal, 3 Harris 414. There is nothing before us to show that any buildings are interfered with.
That the road occupies a street already opened for a distance of five hundred and ninety-four feet, we do not regard as material. This was manifestly to reach the terminus at Springdale Station. While it is true, as a general rule, that a road cannot be located on another, regularly laid out and opened, yet it may be laid on another so far as it may be necessary to reach the point of ending called for in the order: Reserve Township Road, 30 P. F. Smith 165; Road from West Chester, Road to Chester, and Germantown Road, 2 Rawle 421; Hess Mile Road, 9 Harris 217; Southampton Road, Id. 356.
. There is no force in the exception (see 9th assignment) that “the same persons who are viewers did not act upon or sign the supplemental report.” The supplemental report was signed by two of the three viewers who signed the original. The third viewer, J. B Stilley, was the county engineer, and prior to the supplemental report had been succeeded in office by J. H. Reno. The Act of Assembly of February 24th 1845, Pamph. L. 52, provides that the number of .road and bridge viewers in Allegheny county shall be three, one of whom shall be a surveyor, if deemed necessary, and a majority of whom shall concur in the report. It is asserted in the
The alleged agreement between the petitioners and the- railroad company, referred to in the 12th assignment, does not appear upon the record. Any comment thereon is unnecessary.
What has been said substantially covers the numerous assignments of error. While the record is somewhat ragged, we are unable to see such serious error as would make it our duty to reverse. The proceedings, therefore, are Affirmed.
