Bowers v. Braddock Borough

Citations

• 172 Pa. 596
• 33 A. 759
• 1896 Pa. LEXIS 816

Syllabus

<p>[Marked to be reported.]</p> <p>Boad law — Streets—Borough—Change of grade — Acts of March 24, 1878, and May 16, 1891.</p> <p>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March 24,1878, P. L. 129, in so far as it relates to the assessment of damages for change of grade in a borough, Í3 not repealed by the act of May 16, 1891, P. L. 75.</p> <p>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.</p> <p>Road law — Change of grade — Appeals—Act of June 13, 1874.</p> <p>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.</p> <p>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 t