Hays v. Risher

• Decision Date: 01 January 1858
• Parties: Hays versus Risher.
• Court: Pennsylvania Supreme Court

32 Pa. 169

Hays versus Risher.

Supreme Court of Pennsylvania.

ERROR to the District Court of Allegheny county.

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G. P. Hamilton, for the plaintiff in error.

Woods & Loomis, for the defendant in error.

The opinion of the court was delivered by WOODWARD, J.

It is a mistake to suppose that, under the latteral railroad law of 25th May 1832, the viewers, and in case of appeal, the court and jury, are to fix the location of the road. No such duty is assigned them by the statute. On the contrary, the first section authorizes the petitioner to enter upon the intervening lands to survey and mark such route as he shall think proper to adopt, and requires him to set forth in his petition to the court, the beginning, courses and distances of the selected route, and the point of its intersection with the public improvements.

By the 4th section, fifteen days' notice of the time of filing this petition is to be given, and if the road set forth is not such a one as the Act of Assembly contemplates, then is the time for the parties in interest to appear and object to the appointment of a view. I will not say that exceptions, most appropriate to be urged at that time, may not be taken at subsequent stages of the proceeding, but the better practice undoubtedly is, to arrest the proceedings in limine, if, on the face of the application, fatal objections are revealed. The language of the act is mandatory, that the court shall appoint a view, but this means that they shall appoint a view only when the petitioner brings his case within the act.

The viewers when appointed are not to relocate the route adopted by the petitioner, but they are to view and examine it, and to decide whether it is necessary and useful for public or private purposes, and to report what damages the intervening owners will sustain by reason of the construction of the road upon that route.

These duties of the viewers performed, the court confirms or rejects their report "as to right and justice shall appertain." Here another opportunity is presented to bring to the notice of the court any legal objections that may lie against the proceedings.

Or either party may appeal, when the duties assigned to the viewers become the duties of the court and jury. The appeal does indeed open up the case de novo, but the case is precisely that which was before the viewers. The jury have no more to do with locating the road than the viewers. They rejudge the questions passed on by the viewers, and these only.

The proceedings in this case were marked with great regularity. The petition described the road with all necessary precision. No objections were made to the appointment of viewers, and their report is full to every point. The defendant appealed and obtained the benefit of a trial by jury, and now, after judgment on their verdict, the first of the fourteen errors assigned is, that the court erred in dismissing the exceptions (nine in number) which he filed to the report of the viewers.

As to all the exceptions which related to the damages and the action of the viewers, the court were right in dismissing them, on the ground of the appeal; and as to the rest, their want of merit was a sufficient ground for dismissing them.

The chief ground of complaint both in the exceptions and the errors assigned is, that the plaintiff did not lay his road by a direct, and of course, the nearest line to the slackwater navigation.

This objection might have been taken when the petition was filed, but it could not have availed had it been. The act does not require the petitioner to adopt a straight line. The nearest route may often be the most impracticable and expensive, and the landing reached by it altogether unsuitable. Very good reasons were given in the argument for the deflection which the petitioner made from a right line, but his proposed road being pronounced by the viewers necessary and useful, it is quite immaterial whether it is as short as it might have been or not. The first road laid under this law (Harvey v. Thomas, 10 Watts 63) was not on the nearest route to the water.

The testimony of McGowin was offered to prove that the present location was not reasonably necessary within the meaning of the Act of Assembly, because there was one shorter, cheaper, and more convenient.

This was an attempt to relocate the road of the petitioner. This and similar offers were pressed upon the court under the misapprehension that the case involved a question in engineering. I repeat that this was to mistake the Act of Assembly. The question, whether the route adopted by the petitioner was necessary and useful, was in the case, but whether a shorter, cheaper, or more convenient route could be found was not in the case, except as that question may have involved these inquiries.

The petitioner had every motive for adopting the best route, for the whole expense of construction, as well as the damages of the defendant, were to be borne by him. It was the policy of the enactment to intrust this question to his instincts of self-interest, setting over him such guards, however, as would compel him to repair all damages ...