delivered the opinion of the court, October 6th, 1884.

This case comes before us on exceptions to a report of viewers of railroad damages in the court below, and on appeal from the decision of the court dismissing the exceptions. Nothing is brought up but the record, which consists of the petition, the order to viewers and the report, with the exceptions thereto and the judgment of the court. There are no depositions and if there were they could not be regarded. The whole case is spread upon the papers and we can consider no allegations outside of them. As set out in the petition, the plaintiff’s claim is for damages for constructing and laying down an additional track in Third street in the borough of Chambersburg, and thereby so occupying and obstructing the said street in front of the lands of the petitioners, as to occasion damage and inconvenience to the owners. The lands are there described as fronting on the street. There is no allegation of any attempt to settle the damages by agreement, but the appointment of viewers is asked to assess the damages if any and make report/ The order to viewers recites'the petition and appointment of viewers, and directs the latter to view the premises, estimate and determine the quantity, quality and value of land taken, ascertain the damages and report the same to the court in the usual manner in such cases. The report sets out that no land of the petitioners lias been taken or occupied, but that the railroad company has constructed an additional and third track, for the purpose of a siding, on Third street, which third track passes along a portion of the lot of the petitioners, as indicated on an annexed draft, and obstructs the approach of said lands, and concludes by assessing the damages resulting or likely to result *220to the petitioners “in consequence of the making of the said additional track of railway, and of the construction of works in connection therewith,” at two hundred and fifty dollars. This is the entire case of the petitioners as it appears upon the record before us. The proceeding is under the general railroad Act of 1849.

It affirmatively appears by the report that no land of the petitioners has been taken or occupied, and hence the case does not come within that clause of the Act which gives damages for land taken. The only other part of the Act under which the proceeding can be sustained, if at all, is the third proviso of the 10th section which is in the following words: “ That whenever any company shall locate its road in and upon any street or alley, in any city or borough, ample compensation shall be made to the owners of lots fronting upon such street or alley, for any damages they may sustain, by reason of any excavation or embankment made in the construction of such road, to be ascertained as other damages are authorized to be ascertained by this Act.” There is no difficulty in the interpretation of this language. It authorizes a recovery of damages if any excavation has been made, or any embankment, in the street or alley fronting the petitioner’s land, and damage has resulted therefrom. In the present case it is neither alleged in the petition, nor found by the report, that there is either an excavation or an embankment, in the street where the additional track is laid. The report says the track obstructs the approach to the petitioners’ hinds, but it does not say the obstruction is by means of an embankment or excavation, and unless that is the form of the obstruction the Act does not apply. Ven’ many persons regard any railroad track, especially a steam railroad, upon the street in front of their property as an obstruction to the approach whether the track be laid on the grade, or above it, or below it. We have no means of knowing whether the viewers in this case so regarded it or not, nor is it necessary we should. If there was an embankment or an excavation in the street, in front of the land of these petitioners, it was very easy to say so. The court can not infer it, and it is altogether unfair to a judicial tribunal to compel it to infer a cause of action when it is so very simple and easy a matter to allege and prove it, if it really exists. We are at a loss to understand why these proceedings are deficient in this respect. The papers appear to be carefully drawn, the Act is specific in designating the very thing for which damages may be given, and yet nowhere in this record is there an averment which brings the case within the terms of the Act. An obstruction by a track laid on the grade is not a cause for which damages may be *221awarded, under the Act of 1849 and no decision to that effect lias ever been rendered by this court. On the contrary, so far as our utterances have gone on that subject, they are directly against such a right. Thus in Newcastle and Franklin Railroad Company v. McChesney, 4 Nor. 526, Mr. Justice Woot>-WAMD in delivering the opinion of the court said : “It was for mischiefs arising from an excavation or embankment within the boundaries of a public highway, by which the value of private property would be impaired, that the legislature intended to provide. The Act of 1849 cannot be carried by intendment beyond the purpose it expressed. No remedies in statutory form can be asserted, and no remedies at common law can be defeated by implication from its terms.” And again on page 527. “ The subject matter of legitimate inquiry was the extent of the damage caused to the plaintiffs, by the embankment made by the defendant in Mill street. The liability of a railroad company was expressely limited to cases in which an ‘ excavation ’ or an ‘ embankment ’ should be made in the course of the ‘ construction of their road.’ If the track had conformed to the grade line of the street, the plaintiffs would have had no remedy at all, for the statute would have had no application.” We see no reason for departing from these views, but consider them entirely sound. It is not for the courts to make statutory law. That is the exclusive province of the legislature.

The decree of the court below is reversed and the petition and all proceedings thereunder are dismissed and set aside at tne cost of the petitioners.