Philadelphia & Erie Railroad v. Cake

95 Pa. 139 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court,

The sixth assignment of error must be sustained. It sets forth that the court below erred in disallowing the seventh exception filed by the defendant. Said exception is as follows.; “ That the viewers do not state that in estimating and determining the damages, they had any regard to or made any just allowance for the advantages which may have resulted, or which may seem likely to result, to the said Henry L. Cake in consequence of the making or opening of said railroad, and of the construction of works connected therewith, nor that they made any fair or just comparison of the advantages' and disadvantages.” That this is a radical defect and an adequate ground for setting aside the report, has been repeatedly decided. It is sufficient for present purposes to refer to Ohio & Pennsylvania Railroad Co. v. Wallace, 2 Harris 245; Reitenhaugh v. The Chester Valley Railroad Co., 9 Id. 100; Zack v. The Pennsylvania Railroad Co., 1 Casey 394; O’Hara & Darlington v. Pennsylvania Railroad Co., Id. 445; The Railroad Co. v. Porter, 5 Casey 165. It is no answer to say that it would be useless to set forth such matters in the report. The law requires it and for sufficient reasons. As was said in Zack v. The Railroad Co., supra, “ The report is to be reviewed by the court; and this can be of no value if no facts be set out in it, unless the court choose to hear the evidence over again. If the facts be not set out and are not required to be, then a review in this court is worth nothing. Besides it is important in reviewing a case tried out of the general course of the law to see what matters have been inquired of, that it may be known that the cause has been fully and rightly considered.”

This disposes of the case and renders a discussion of the remaining assignments unnecessary. It is proper to say, however, that it was the plain duty of the learned judge of the court below, upon his own statement of the case, to have set aside this report. He says in his opinion : “ The evidence shows and I find as a fact that the damages found by the viewer's are grossly excessive.” Notwithstanding this finding, he entered judgment upon the report upon a mistaken idea that he had no power to set it aside, and sent the case up to this court with what amounts to an invitation to us to do what he omitted to do. All this, however, appears only in the opinion of the court which forms no part of the record. How far we would be justified in looking at it when the court below has declined to exercise its discretion from an erroneous view of its power, and has sent up its opinion for the very purpose of showing us its reasons for declining to act, and to invite our review of its ruling, it is not essential riow to decide. We reverse the case upon the grounds previously referred to.

The judgment is reversed, and the report of the viewers set aside.