Boyd et al. v. Negley

• Decision Date: 31 October 1861
• Citation: 40 Pa. 377
• Parties: Boyd <I>et al. versus</I> Negley.
• Court: Pennsylvania Supreme Court

40 Pa. 377

Boyd et al. versus Negley.

Supreme Court of Pennsylvania.

October 31, 1861.

ERROR to the District Court of Allegheny county.

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The case was argued by R. & S. Woods for Boyd and wife, and by Hamilton & Acheson for William P. Baum, plaintiffs in error; and by

Marshall & Brown, for defendant in error.

The opinion of the court was delivered, October 31st 1861, by STRONG, J.

No less than fourteen errors have been assigned in this case, not one of which, in our judgment, has any existence. It is urged that the petition was so defective as to require the court to refuse to order a view, and to quash the entire proceeding even after the viewers had reported. The first alleged defect in the petition which is insisted on, is that Mary Peadon is named as a reputed joint owner, with the plaintiffs in error, of one of the tracts over which the proposed railroad was located when in truth she was not a joint owner. We are unable to perceive that this was any sufficient reason for refusing the view or quashing the petition, or that the plaintiffs in error could in any manner have been injured by the averment. The mistake did not appear on the face of the petition, and it was, therefore, no reason for refusing the view. Besides, the Act of Assembly does not in terms require that the names of the intervening land-owners should be set out in the petition, though it is quite proper that they should be. Notice must be given if the owners are known and resident in the Commonwealth, yet it is supposed they may be unknown. But Boyd and wife were named as owners in the petition. This at most was all that they had a right to ask. It gave them an opportunity to show that the proposed road was not necessary, and failing in that, to have their damages assessed, and Mary Peadon's name was stricken from the record, by leave of the court, after the report of viewers, and before the final assessment of damages. There is nothing in the argument that in consequence of a joint assessment by the viewers, the plaintiffs in error were compelled to appear, in order to prevent the participation of Mary Peadon. The assessment was not an adjudication between them, and if it had been, it would not justify us in reversing the action of the court now, when the damages have been assessed in favour of the rightful owners.

That William Richey, the alleged tenant of Boyd and wife, was not named in the petition is no ground of complaint by them, and he cannot be hurt by a proceeding to which he was not a party.

Another objection to the petition is, that it represented a desire of the petitioner to make, construct, and use his proposed railroad with double or single track, as may be found most suitable for the purpose of carrying his coal or coal of other parties thereon. It is said the law authorizes no such petition....