Tucker v. Erie & North-East Railroad

| Pa. | Jul 1, 1856

The opinion of the court was delivered by

Knox, J.

The objections to the confirmation of the report made by the viewers in this case may be briefly stated thus:—

1st. That the petition for the view was not signed by any officer of the company, nor by any one having authority to sign it.

2d. That the jury did not take into consideration the expense and costs of keeping up the fences on each side of the railroad for all time to come, and did not take into consideration future damages that will or may happen to exceptants’ estate.

3d. That it does not appear from the record that any effort was made by the company, previous to the application for the appointment of viewers, to agree with the owners of the land taken, either upon the damages or the viewers, and that, in fact no such effort was made ; and,

4th. That the report was not signed by the viewers.

The petition for the appointment of viewers was under the corporate seal, and signed by the attorney of the corporation. The objection that it was not signed by an officer of the company is not a valid one. We are inclined to the opinion that a petition of this character may be presented with the attorney’s signature alone; but, even if it were otherwise, the seal of the corporation attached to the petition is the highest evidence of its authenticity.

It is impossible for us to ascertain what was, or what was not considered by the jury in determining the amount of damages sustained, but it is clear that the report is a substantial compliance with the Act of Assembly incorporating this company. Under the act of incorporation the duty of the jury is to ascertain and report to the court the value of the lands taken, and the amount of damages accrued “ to the owners of any lands, houses, or other buildings,” injured by the company. The report under consideration finds the value of the lands taken, and the amount of damages sustained by reason of the location and construction of the road. It was unnecessary to state in detail how the damages accrued, ■whether by injury to buildings or lands, by reason of increased expenses in fencing. And as to future damages, we must presume that the jurors included everything that was a legitimate subject of inquiry, under the order in virtue of which they were acting.

In the case of O’Hara v. The Pennsylvania Railroad Company, 1 Casey 445, it was held that the petition when presented by the company ought to aver that an unsuccessful effort had been made to agree upon the compensation with the owner; and that this averment should be supported by affidavit. The inability to agree upon compensation or upon the men to assess damages, is stated in the petition, and appended to it is the affidavit of Judah C. Spencer, in which he deposes that he was appointed by the Erie and North-East Railroad Company to agree, if possible, with the persons named in the petition, upon the compensation to he given for the land and the damages; or if that could not be done, then to agree upon five men to assess the damages and value the land; but that he was unable to agree upon either with any of the persons named in the petition.

The objection made to the affidavit is that it does not state affirmatively that the deponent made an effort to agree upon the compensation, &c., before the petition was presented; and that the inability might have been owing solely to the absence of any effort to agree. In the exceptions filed in the Court of Common Pleas it was alleged as a fact that no such effort was made. These exceptions were overruled, and the fact was therefore found against the exceptants. Whether other evidence was offered to the Common Pleas besides what we have upon the record, we do not know, but we are of opinion that Mr. Spencer’s affidavit necessarily implies that the effort to agree with the landowners had been previously made by him; for if this were not so, how could he swear that lie was unable to agree ? If he had not tried to agree he certainly could not say whether or not he was able to do so. A necessary implication arising upon what is expressly stated is equal to an express averment.

The exception that the report was not signed by the viewers was based upon the fact that the report embraced several distinct properties owned by different persons, and that each estimate of value and damages was not separately signed. There is nothing in the statute, nor in any practice which has arisen under it, nor in any construction given to it, which requires that each finding of the jury should he separately signed by the jurors.

The practice has been otherwise, and we cannot say it has been illegal.

We see no good reason for setting aside the confirmation of this report.

Proceedings affirmed at the cost of the appellants.