Huntingdon Co. v. Kauffman

Opinion, Mr. Chief Justice Paxson : These were writs of certiorari to review the proceedings in a road ease. It appears that on June 15, 1887, the court below appointed viewers to view and lay out a public road in YVarriorsmark township, Huntingdon county. The viewers examined the proposed route, reported in favor of the road, and assessed the damages. Their report was approved nisi. On December 12, 1887, a petition was presented for a review, and on the same day viewers were appointed as prayed for in the petition. About the same time, certainly at the same term, each of the defendants in error presented a petition asking the court to set aside the report of the jury, so far as the assessment of damages was concerned, upon the ground that said damages were inadequate, and to appoint a jury to assess the damages. It was in reality an application for review upon the question of damages. The court below appointed a jury upon each petition, who reported damages slightly in excess of those awarded by the original jury of view. The jury of review were equally divided. Three of their number were in favor of the new road; the other three were against it. Under these circumstances the court below held that the original report must stand. The costs of the three reviews upon the question of damages were ordered to be paid by the county. This order is assigned for error. The important question presented by the record is the power of the court below to appoint a separate jury to re-assess the damages. The first section of the act of May 14, 1874, P. L. 164, provides, “ That hereafter it shall be the duty of all persons appointed in the, several counties of this commonwealth to view and review any public or private road or bridge, if they [314] shall decide in favor of locating said road or bridge, to endeavor to procure from the persons over whose land such location may be made releases from all claims for damages that might arise from the opening of such road or the building of such bridge; and in every case where said viewers shall fail to procure such releases, and it shall appear to them that any damages will be sustained, it shall be their duty to assess the damages and make report thereof, signed by a majority of their number, and return the same, together with all releases obtained, to the Court of Quarter Sessions, and the damages so assessed shall be conclusive, or may be subject to appeal, review or modification, as may be provided by existing laws in the different counties of this commonwealth.” Section 2 of said act repeals all acts and parts of acts inconsistent with the above provisions. The prominent feature in this act is the change in the mode of assessing damages. It provides, as clearly as language can do, that the jury appointed to view and lay out a road, and also a jury of review, shall assess the damages caused thereby. To this extent the general road law of 1836 is repealed. The reasons which induced the legislature to make this change are not expressed in the act, yet it is not difficult to see why it was done. It simplifies the proceedings and makes them less expensive. This alone would justify the change. But there is another and more important reason. Under the old system, the assessment of damages was a separate proceeding, by another jury, subsequent to the location of the road by the viewers and the approval of their report. It sometimes happened that the viewers located a road where it was subsequently ascertained that the damages for opening it were so large as to be greatly disproportioned to the public necessity for the road, and the ability of the township tó pay. In such cases had the jury of view also ascertained the damages they might well have hesitated to report in favor of the road. The expenses of opening a road, and the amount of damages to be paid to the landowners, are legitimate matters of consideration by a jury of view when they are called upon to decide upon the propriety of locating a road. We can readily understand, therefore, why the act of 1874 required the jury of view to pass upon both the location of the road and the assessment of the damages. [315] The question which confronts us here is whether there can be a review upon the matter of damages merely. Here again we must turn to the act of 1874, winch provides, as already stated, that, “the damages so assessed shall bo conclusive, or may be subject to ajipeal, review, or modification, as may be provided by existing laws in the different comities of this commonwealth.” What is the meaning of this language? The plaintiff in error contends that the words “existing laws in the different counties of tills commonwealth” apply only to special or local laws and not to the general road laws, for the reason that the latter are expressly repealed by the act of 1874. We do not agree to this view. The act of 1886 is repealed only to the extent of requiring the jury of view and review to assess the damages. We hold that the true intent and meaning of the language above quoted is this, that the damages ascertained and assessed by' the jury of review are conclusive, unless an appeal, review, or modification thereof is provided for by the laws existing in the particular county at the time. Those laws consist of either the general road laws, if iu force in the particular county, or if not in force, the local or special law which has superseded it. It was conceded that there is no local or special law upon this subject for the county of Huntingdon. The act of 1886 contains no provision for a review upon the question of damages. The Newville Road ease, 8 W. 172, rules this point. The syllabus of that ease, owing to a typographical blunder, is incorrect, and. is in direct conflict with tho decision. It was said by Sergeant, J., referring to the question of damages: “ An adequate remedy is given to all parties interested by' the power possessed by the court to disapprove and set aside the assessment for any impropriety in the jury or defect in the proceedings, and to award another view in lieu of the former. On carefully examining, however, the whole of the provisions of this act (1886) I am satisfied that the right to a review does not extend to the case of the assessment of damages. In the first place tho action of the jury in these cases is not so much that of viewers (though they are directed to view the premises and are frequently termed viewers), as that of assessors of damages, which is the great object qf their appointment and their main business. And in [316] the 80th section of the act, this distinction is apparent, where it speaks of all cases of view, review, or assessment of damages. But what is still stronger, the 54th section provides for the expense both of viewers and reviewers of roads, whether public or private; and the 55th section provides for the expense of a view to assess damages occasioned by a public or private road, but says nothing of the expense of a review for that purpose, which it is not supposed would have occurred had such a thing been intended. There is, therefore, as the law stands, no provision for paying the expenses of such review.” This ease was cited approvingly in Bensalem Tp. Road, 38 Pa. 368. That case was decided under a special law for Bucks county by which the jury of view were required to assess the damages. It was said by Justice Strong: “In Durnall’s Road, 8 Cas. 383, it was ruled that under a statute quite similar,- enacted for Chester county, objections to the amount of damages assessed by the jury may be a ground for a review. The meaning of this is that any landowner, dissatisfied with the assessment of damages, may petition for a review. Of course the review extends to the entire action of the viewers in laying out the road and estimating the damages.” Durnall’s Road, supra, and Chartiers Tp. Road, 34 Pa. 413, both of which were decided under local laws bearing some resemblance to the act of 1874, have been relied upon to some extent to show that there might be a view for damages apart from a view or review of the road. The opinion in each of those cases was delivered by Justice Lowrie, who said, referring to this subject, in the subsequent case of Spring Garden Road, 43 Pa. 144, that such was not the meaning of the court. The key to what the court did mean is probably to be found in the remark of Justice Strong, above cited, that a landowner who is dissatisfied with the award of damages may have a review, but the review “ extends to the whole action of the viewers in laying out the road and estimating the damages.” We do not think, however, either of the foregoing cases, or any of the others cited, rules this case, for the reason that the act of 1874 makes the award of damages conclusive, unless an appeal or review thereof be provided for by the existing laws in force in the particular county. There is no such law in the county of Huntingdon. It follows that it was error to grant a review upon the question of damages alone. [317] It was also error to put the costs of these reviews upon the county. The law makes no provision for the payment of reviewers upon the question of damages: Newville Road, supra. The act of May 19, 188T, P. L. 139, was not intended for any such purpose. The object of that act was not to interfere with such matters as were already regulated by law, such as the compensation of viewers, but to provide for such costs as were not fixed by statute, such as taking depositions, making surveys, etc., when necessary, after the report of the viewers and exceptions had been filed. It would be a strained construction of that act to hold that it authorized the court to set aside all the prior acts of assembly upon this subject, and introduce an arbitrary foe bill in regard to the compensation of viewers. The order of the court below appointing viewers upon the petition of the respective defendants in error to assess damages, and all subsequent proceedings thereon, are reversed and set aside in each case, at the costs of the respective petitioners.