Wilson v. City of Scranton

Citations

• 141 Pa. 621
• 21 A. 779
• 1891 Pa. LEXIS 1113

Syllabus

<p>[To be reported.]</p> <p>(a) A landowner in Scranton having filed a petition for the assessment of damages arising from the construction by the city of a sewer through his property, three viewers were appointed, in accordance with the provisions of the act of May 24, 1887, P. L. 204, afterwards declared unconstitutional in Ayars’ App., 122 Pa. 266.</p> <p>(£>) On the trial of an issue, on an appeal by the city from the award of the three viewers, after the jury were sworn and had been sent to view the property at the request of the city its counsel moved to strike off all the proceedings, on the ground that the board of viewers was illegally constituted and without jurisdiction:</p> <p>1. The objection came too late: the appointment of three viewers under the void act of 1887, instead of seven as required by § 58, act of May 23, 1874, P. L. 267, was an irregularity which did not affect the jurisdiction of the court over the parties and the subject matter under the last mentioned act: the appeal taken had rendered it immaterial.</p> <p>2. In appropriating land for a sewer, a city is not obliged, nor in strictness is it authorized, to take more than is actually necessary for its purpose ; and the extent of the use and control of the land which it shall appropriate therefor is within its own discretion, provided the limits of such necessity are not exceeded.</p> <p>3. Wherefore, in a proceeding to assess damages for such a taking, the city may show that by a joint resolution of councils, approved by the mayor, it has taken corporate action, limiting the extent of the use actually appropriated, and then show, by experts, the effect upon the value of the property of the taking as thus limited.</p>