Bowers v. Braddock Borough

Supreme Court of Pennsylvania January 6, 1896

Bowers v. Braddock Borough, 172 Pa. 596 (Pa. 1896)

33 A. 759; 1896 Pa. LEXIS 816

Dein, Fell, Geeen, Green, McCollum, Mitchell, Sterrett, Williams

Opinion of the Court

Opinion by

Mr. Justice Geeen,

The first and principal question urged in the argument of the appellant is, “ does the act of May 16, 1891, P. L. 75, supersede and repeal the act of March 24, 1878, P. L. 129, in so far as it relates to the assessment of damages for change of grade in boroughs ? ” We have just filed an opinion in the case of Seaman v. The Borough of Washington, ante, 467, in which we decide this question in the negative, and hold that the act of 1878 is not repealed by the act of 1891. For the reasons there stated we make the same ruling in the present case.

As to the second question presented, we can see no reason why the court below committed error in refusing to set aside *600the viewers’ report and send back the case to the same or new viewers. Even if we regard the affidavits of the officials on which the application was based, which we cannot do, they simply make out a case of negligence on their own part in not regarding a proper service of notice of the proceedings to assess the damages.

As to the third question, Was the appeal of the borough taken in time, it is perfectly clear that it was not. The general act of June 13, 1874, P. L. 283, which gives an appeal to the common pleas in all cases of the assessment of damages for property taken, injured or destroyed, directs that such appeal shall be taken, “ within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act, and not afterwards.” Whatever may be the precise meaning of the words “ ascertainment of damages,” it certainly does not mean an ascertainment after the report of the viewers has been filed in court, because the filing of the report is a definite act which cannot occur until after the viewers have acted in the ascertainment of the damages. Therefore it is safe to say that the time within which the appeal must be filed is thirty days from the filing of the report. This very point was decided in the case of Gwinner v. Railroad, 55 Pa. 126. The filing of exceptions to the report of viewers has nothing to do with the right of appeal. That right can only be exercised according to the terms in which it is given. The hearing of the exceptions can go on and be completed before the case is actually tried, and if the exceptions are decided favorably to the appellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed. The assignments of error are all dismissed.

Judgment affirmed.

Reference

Full Case Name: William Bowers v. Braddock Borough
Cited By: 18 cases
Status: Published
Syllabus: [Marked to be reported.] Boad law — Streets—Borough—Change of grade — Acts of March 24, 1878, and May 16, 1891. The act of March 24,1878, P. L. 129, in so far as it relates to the assessment of damages for change of grade in a borough, Í3 not repealed by the act of May 16, 1891, P. L. 75. Where a petition for the appointment of viewers to assess damages for injuries caused by change of grade of a street in a borough avers that the borough authorities failed to agree with the petitioner as to damages, the court will not set aside the viewers’ report on an affidavit by the burgess that he had forgotten to give the notice of the meeting of viewers to the clerk of council, or to the borough solicitor, and that the borough was not represented before the viewers. In such a case the Supreme Court cannot consider the affidavit of the burgess, and if it could, the ground alleged for setting aside the report is not sufficient. Road law — Change of grade — Appeals—Act of June 13, 1874. Under the act of June 13, 1874, P. L. 283, which gives an appeal to the common pleas in all cases of the assessment of damages for property taken, injured or destroyed, and directs that such appeal should be taken “within thirty days from the ascertainment of the damages, or the filing a report thereof in court,” the time within which the appeal must be filed is thirty days from the filing of the report. The filing of exceptions to the report of viewers has nothing to do with, the right of appeal. That right can only be exercised according to the terms in which it is given. The hearing of the exceptions can go on and be completed before the case is actually tried and if the exceptions are decided favorably to the appellant so as to defeat the proceeding, no trial will be necessary. If otherwise the trial can then proceed. There was therefore no inconsistency in filing exceptions to the report of the viewers and at the same time entering an appeal to the common pleas under the act of June 13, 1874, P. L, 283.