Bredin v. Pittsburg & Western Railway

Pee Curiam, This certiorari brings before us nothing but the record proper of the court below. There is nothing in it that is sufficient to convict the court of error in allowing the amendment, or in appointing the viewers. Defendant company’s main objections to the latter are grounded upon matters of fact which are not admitted and upon which we cannot undertake to pass at this stage of the proceedings. As to the alleged grant of the right of way by Mrs. Nancy Bredin in April, 1879, the paper itself shows that said grant was “on the condition that said railway shall be constructed and in running order within three years from date.” It is not even alleged that this condition was performed by the grantee of said right of way, or by any company claiming through or under said grantee.. On the contrary, it is stated in defendant’s history of the case that it “ entered upon, located and constructed its railroad over and across said land, completing and putting the same in operation in January 1883,”—about nine months after the time, named in said condition, had expired. In plaintiff’s replication, denying the allegations contained in the 4th paragraph of defendant’s answer, he avers that, under the last will of his mother, Mrs. Nancy Bredin, duly probated etc., the title to the land appropriated by said company defendant became vested in him on the 7th day of July,1881, and that defendant company did not commence to construct its road over said premises until long afterwards, the day of September, 1881, and did not complete the same until January, 1883. Other questions of minor importance are suggested by defendant’s objections to the appointment of viewers, but it is neither necessary nor proper to consider them at present. If it should ever become necessaiy, these and other questions of fact can be better settled by proceeding in the regular and orderly way. The viewers have full power to inquire and report, inter alia, what, if any, damages should be paid by defendant company, and to whom payable. An attempt to anticipate and settle all questions, both of law and fact, before viewers are even appointed, is at least suggestive of obstructive proceedings. Neither of the specifications of error is sustained. Proceedings affirmed, without prejudice, and appeal dismissed with costs to be paid by appellant; and it is ordered that the record be remitted with a procedendo.