38 Pa. 368 | Pa. | 1861
The opinion of the court was delivered,
— Under the general road laws the Court of Quarter Sessions has power to adopt either the report of the jury of view, or that of the jury of review: Buckwalter’s Road, 3 S. & R. 236 ; Bachman’s Road, 1 Watts 400. Both the view and review are for the purpose of informing the conscience of the court, and therefore either or both may be rejected. In approving one rather than the other, the court does not pass upon the subject, of damages awarded to the landowners, for with them the juries of view and review have nothing to do; damages are assessed by a distinct proceeding, and, as it has been held that there is no power to grant a review of an assessment of damages (8 Watts 178), as to them there is no opportunity to choose between a report of a jury of view, and one of review. But the Act of April 23d 1857, entitled an ‘Act to amend the road laws of Bucks County”, has made very considerable changes in the law applicable to roads in that coünty. It has imposed upon juries of view and review, not only the duty of laying out and reporting the proposed new road, if they shall deem there is occasion for it, but also the duty of assessing the damages that may be caused by it to landowners through whose property it may pass. Under' this local system, therefore, there is to be an assessment of damages with every view and review, and it is to be returned as a constituent part of every report. One object,of the legislature ' doubtless was, in requiring that the viewers of the road shall, also assess the damages if they report favourably to the road, to assist the court to judge whether the public convenience . requires it, sufficiently to warrant the payment of the damages which it may cause. Whether that be so or not, an assessment is peremptorily required with every view and review. In Durnall’s - Road, 8 Casey 383, it was ruled that under a statute quite similar, enacted for Chester county, objections to the amount of damages assessed by the jury, may be a ground for a review. The mean- • ing of this is, that any landowner, dissatisfied with the assessment of his damages, may petition for a review. Of course the review .
Even if it were a matter of discretion, we are of opinion that the selection should not have been made, without actual notice to Mrs. Bilbrough. True, she had petitioned for a review; that was a mode of opposition to any road at all. She ought not to have been held under obligation to move for the confirmation of either report. If confirmation of either was desired by the applicants for the road, she should have been warned by a rule to show cause, especially under the circumstances of this case. She may have been misled, and probably was, by the collateral issue between the petitioners for the road and the county, and this is the more probable, as no exception was taken to the amount reported in her favour by the jury of review. In that issue she had no interest. To her it was a matter of indifference whether the damages were paid by the petitioners for the road, or by the county. When the petitioners were ordered to pay them the public ceased to have any interest in the amount of the assessment, and not till then could Mrs. Bilbrough have taken any action. But contemporaneous with that order, and without any further notice to her, was the adoption by the court of the report of viewers, in other words, was the selection of the first assessment. Even if the court had the power to make such a choice, we think it was unduly exercised. But in cases where the first and second jury report the same road and differ only in the assessment of damages, our opinion is, that the court cannot adopt the first in preference to the second assessment. To such a choice their discretion does not extend, for the assessment,
The order of the Court of Quarter Sessions is reversed, and the record is remitted with a procedendo.
