| Pa. | Jul 1, 1855
The opinion of the Court was delivered by
In the case of Zack against this company, we have decided that such a report as this is not at all a satisfaction of the law, since it does not set forth all the matters submitted to them. It gives no idea of the character of the ground, and scarcely any of its figure; for, while the distances are given in the petition and order, and there discordantly, there are no courses given, except eastwardly, southwardly, &c.; and, if the figure has its opposite sides parallel, as the reference to streets would indicate, then the distances are impossible. It states not one of the advantages or disadvantages which the owners may derive or suffer from the use that is to be made of the ground, and we do not know that they have considered them.
It is not at all our province to judge, at least in tiie first instance, of the quantity of ground necessary for the purposes of the railroad at this place; and, since the law does not say that the com-, pany shall be the judge of this matter, and it is not probable that
It seems to us that there are several matters of fact which are preliminary to the appointment of the viewers, and which ought to be shown to the Court to have been performed, in order to justify the appointment. Thus it must appear, when the company are the petitioners, that they have surveyed, located, marked, and determined the ground which they deem necessary for their purposes, and which they propose to take, and that they have made an effort to agree with the owners for the compensation. These facts, and especially the last, cannot be taken for granted on the mere allegation of the petition; and therefore the very least that can be expected is, that they shall be supported by an affidavit, else they become a mere matter of form, for the viewers do not find them as facts.
In this case the landowners had no day in Court until the report was filed. Then they denied that there had been any effort made to agree, and they deny it here, The record does not show how the fact is, and it is very apparent that the Court did not pass upon it. If it had appeared that the landowners were present at the appointment of the viewers, this fact would have been taken as admitted, unless the objection had then been made. But when the appointment is made ex parte, the objection is, of course,- in time, if made after the report, and then it must be decided before judgment can be entered on the report. This is say- ' ing nothing more than that such summary proceedings must appear on their face to be all regular.
This case is a very peculiar one, and of course requires a very special .report, in which, at the least, .all the matters of quantity, quality] value, and boundaries of the land, and the' title to the streets spoken of, ought to appear. Without this there can be no intelligent review of the proceedings.
The delays in this case cannot enter into our judgment, for both parties had the same rights in bringing it to an issue. The process began in error, and it must start anew.
All the points in this case have been considered in the cases of Darlington and Zack against this same company, and the principles there expressed require a reversal of these proceedings.
Judgment reversed at the costs of the plaintiff below, the railroad company.