Boyd v. Negley

The opinion of the court was delivered, by Strong, J. Having examined the evidence reported by the master in this cas.e, we are of opinion that the lateral railroad has been built on the line on which it was first located by the petitioner, and that the assessment of damages was made both by the [390] viewers and the appellate jury, for such a location. The seeming confusion in regard to this matter, arises fr.om the fact that more than one line was run before the viewers came upon the ground. Of these one was run and marked, partially at least, by Mr. Earley. It was not, however, run for the petitioner, but at the instance of the appellant. Another line was run by Morley, and still a third by Mr. Negley himself. It was this last line that was adopted by him and marked upon the ground; and it was this line that was exhibited to the viewers and the jury as the located route of the proposed railroad. For a road on such a route the damages were finally assessed, and upon the route the road has been built. Thus much is satisfactorily established by the evidence. But it is' said the route upon which the railroad has been built does not correspond with the route described in the petition. There is no substantial variance between the line of construction and the line of the location, as it was surveyed and marked upon the ground. But there is a slight variance between that line and the description of it contained in the petition. A mistake was manifestly made in the description. But the true and authorized line of the road, is that which was surveyed by the petitioner and marked upon the ground. The description is but evidence of the line. The mistake in this case was the omission of one section about 30 feet in length. It was undoubtedly amendable at any stage of the proceedings, and hence, if necessary, we will treat it now as amended, especially as the damages have been assessed for the route actually appropriated. Under the Act of Assembly it was the duty of the viewers and the jury to view the route surveyed and marked on the ground, and to make report thereon. It must be presumed, and indeed it is proved, they did so. If, as appears to have been the case, the route selected and marked on the ground was mistakenly described in the petition ; and if the viewers and the jury proceeded to assess damages on the route marked rather than on that described, the owner of the land might then have objected, and an amendment of the petition would have been allowed. But at this late period, when the assessment of damages has become final, and when the road has been constructed on the line surveyed, marked on the ground and considered by the viewers, it is not to be deemed wrongly located because the description in the petition does not correctly, in all particulars, point out the same line as that actually adopted. It is next contended that the grade of the road has been changed since the damages were assessed, and that the change causes an increased hurt to the appellant. The petition did not undertake to describe the grade of the proposed road. Such a description whs not necessary, as was ruled in Risher v. Hays, 4 Wright 377. But when a petitioner adopts a grade before the [391] damages are assessed, and marks the grade adopted upon grade-pins along the route, it would be inequitable to permit him to change it after the assessment, and to adopt another more injurious to the owner of the land. In such a case, the jury ought to be presumed to have assessed such damages as would be caused by the construction of a road with the grade marked, and with the filling or embankments indicated. If, therefore, it clearly appeared that the jury had been informed that the petitioner intended to construct the road with another grade less hurtful to the owner of the land, than the one which he finally adopted, a court of equity should doubtless interfere. There is, however, no satisfactory evidence that the damages were assessed with reference to any defined grade. It does not appear that any grade-pins were set up on the line at the time of the assessment. Line-pins were, but they do not appear to have been marked for grade. The jury, therefore, could not have been misled by them. One witness testifies indeed, that a surveyor of the petitioner exhibited to the jury a map and profile of the road ; and that the grade now differs from that represented in the profile. But he speaks of the profile from recollection only. It is not exhibited, nor has any effort been made to procure it. Besides, the injury from a change of grade is alleged to be changing it in front of the mansion-house of the appellant. The answer denies that any change has been made at that point, and the force of the answer is not overcome by the single oath of Mr. Darly. It is also to be observed, that no one of the jurors, of whom several were examined, asserts that any grade was pointed out to them. That a change of grade has been made in some parts of the line is proved, and it is admitted in the answer. That, however, is not cause for complaint, unless the jury was led to believe that the road would be constructed at a different grade less injurious to the appellant, and that does not satisfactorily appear. The appellant, therefore, fails to establish such a case as entitles him to the relief for which he prays, and his appeal must fail. The decree of the District Court is affirmed.