235 Pa. 486 | Pa. | 1912
Opinion by
These two appeals, to be regarded as writs of certiorari, bring up records in each of which the appellant contends error is disclosed in the refusal of the court below to approve its bond to secure to the appellee pay
The appellee was, strictly speaking, correct in the averments set forth in his first, second, fourth and fifth exceptions, for all the appellant relied upon as to the presentation of the bond to the appellee and that he and it could not agree upon the amount of damages claimed, was the affidavit of one K. C. Wilson. Who he was does not appear, and he may not have had any connection whatever with the company. His affidavit merely sets forth that he endeavored to agree with the appellee as to the amount of damages claimed, but was unable to do so, and that he tendered the bond, which was not accepted, and thereupon notice was given the appellee that it would be presented to the court below for approval. From all that appears from Wilson’s affidavit, he may have been merely an outsider. But, waiving this, the unanswered averments of the appellee in his eighth, ninth and tenth exceptions clearly stood in the way of the approval of the bond. They were that there was no averment or proof that the appellant was a Pennsylvania corporation; that there was no proof that it had the power to appropriate land and waters in the jurisdiction of the court; and there was a distinct denial of any authority conferred upon it by statute or by charter to appropriate the land and water described in the bond. Before a bond given to secure a landowner for his damages for land taken from him by a corporation, under its right of eminent domain, can be approved, it must affirmatively appear to the court that the company tendering it is vested with such right. It is only by virtue of such power that a corporation can call upon a court to exercise its jurisdiction to approve a bond. In the present case, though given a full year to do so, the appellant failed to submit anything to the court showing that it possessed the right of eminent domain, while, on the other hand, such right was specifically denied by the appellee. The record having been in this state at the
Though the Act of April 29, 1874, P. L. 73, under which water companies are incorporated and given the right of eminent domain, does not require a formal petition to be presented to the court, asking for the approval of a bond refused by a land owner when tendered to him by the company to secure to him damages for the taking of his property, the proper and better practice is to file such a petition at the time the approval of the bond is asked for: 2 Lewis on Eminent Domain, (3rd Ed.) 969. Such a petition should set forth (1) the corporate power of water company to take the land under its right of eminent domain; (2) an accurate description of the land by metes and bounds, evidenced by an accompanying draft of the same; (3) the failure of the company and of the land owner to agree upon the amount of damages claimed; (4) the tender by the company to the landowner of a bond, with at least two sufficient sureties; (5) the refusal of the land owner to accept the bond, and that written notice was given to him of the time when the same would be presented for filing in court for approval. Such a petition, unanswered, would show not only the court’s jurisdiction in the premises, but its duty to approve the bond. If the averments in the petition, or any of them, should be denied by the land owner, the findings of the court on a hearing, on exceptions or answer to the petition, would become part of the record, from which an appellate court could determine whether error was committed in approving or refusing to approve the bond. If such a course had been pursued in the present case, there would be no difficulty in determining whether the court had improperly refused to approve the appellant’s bond. As the record stood at the time the approval of the bonds was refused, the court could not have approved them, and both appeals are dismissed with costs.