Shiloh Street, Appeal, No. 124

Appeal, No. 124 | Pa. | Jan 3, 1893

Opinion by

Mr. Justice Williams,

This case is ruled by the appeal of Travers et al., decided at the present term [the preceding case]. The report of the viewers was fatally defective on its face, and for the reason pointed out by the sixth exception made in the court below it should have been set' aside or re-committed.

It is true that the viewers state in the report “ we find the total damages, costs and expenses of the improvement to be twelve thousand six hundred thirty-five dollars and thirty-five cents ” but they proceed to state how this sum is made up. Part of it was for “ damages allowed by us.” The other and larger part was made up by the incorporation into the report of a document entitled as follows:

“ Chief Department of Public Works.

“ Statement of Costs: ”

This document showed that the city had paid $10,285.35 for grading, paving, curbing and crossings. The viewers do-not pretend that they have inquired after, or ascertained, what the work was worth or even considered that question. What they do report as to this item is what the city has paid as appears by the certificate of somebody or as copied by themselves from the books of the department of public works. This is directly in the face of the opinion of this court in Bingaman v. The City of Pittsburgh, 29 W. N. 364, 147 Pa. 353" court="Pa." date_filed="1892-02-01" href="https://app.midpage.ai/document/bingaman-v-city-of-pittsburgh-6240580?utm_source=webapp" opinion_id="6240580">147 Pa. 353.

But there is another fatal objection to this report apparent on its face. It shows that exceptions to it were filed with the viewers at the proper time, heard by them, and their report afterwards modified and corrected “ in conformity with justice and equity.” But what were the exceptions ? What questions did the viewers consider when they heard them ? Did they rule with or against the appellants ? The report does not tell us. The exceptions are not returned so that we can find out from them. This omission made it possible for the learned judge to refuse to hear exceptions filed before him upon any question of fact, and to give the following reason for his holding : “It will not do for parties to abstain from presenting their case to the board of viewers and then come into court with exceptions in matters which they should have presented to the viewers.” It was conceded that the parties did present their case to the board of viewers on exceptions heard by them, but what was the case presented ? Did it rest on questions of law or fact? The report and the papers returned with it did not show. The appellants had been turned away by the viewers, and because the report was on its face defective in not showing the questions raised before them, the court turned them away also.

The decree is reversed at the costs of the appellee and a procedendo awarded.