Line v. Philadelphia, Harrisburg & Pittsburg Railroad, Appeal, No. 155

Appeal, No. 155 | Pa. | Jun 3, 1907

Opinion by

Mr. Justice Fell,

Two questions are raised by the assignments of error. The first relates to an order of the court referring back to the viewers their report with directions to state the quantity and quality of the land condemned; the second to the allowance of a recovery for probable injuries by flood to land not appropriated. In the order directing the view the land was described by metes and bounds and the quantity stated. The report was excepted to by the defendant for the reason that the quantity and quality of the land were not set forth. This exception was sustained and the report was sent back to the viewers with direction to set out these facts. No exception was taken to this order and by agreement of the parties filed of record a statement of the quantity and a description of the land was added without recalling the jury of view. The reference back to the viewers was not that they should reconsider their finding or any disputed matter, but that they should complete their report by the addition of matter as to which there was no dispute. In Springbrook Road, 61 Pa. 151, where viewers were allowed to amend their report, it was said by Sharswood, J.: “ It would be intolerable to set aside such report for merely formal errors, where the amendment is made within the time allowed by law for filing the orignal report.”

In widening its road the defendant changed the course of a millrace on the plaintiff’s land to secure a better crossing and increased the flow of water therein in order to have a larger supply at its station. There was testimony tending to show that the change in the course of the stream and the increase of the flow of water would subject the plaintiff’s land to overflow at times of flood. The work of widening the roadway had been completed. There was no complaint of negligent construction. The plaintiff’s claim was for depreciation in the value of his land as a consequence of the plan of construction which the defendant had adopted as best suited to its purpose. The distinction between injuries that might result from faulty construction and those that would naturally result from the change in the course of the stream were carefully observed by the learned trial judge in ruling on offers of proof and in the charge, and the recovery was limited to the latter.

The judgment is affirmed.