Pennsylvania Railroad v. First German Lutheran Congregation , 1867 Pa. LEXIS 45 ( 1867 )

The opinion of the court was delivered, by

Agnew, J.

The 1st assignment of error comprehends thirteen exceptions, which were all overruled by the court below. Most of them relate to the decision of the viewers upon the evidence and on the merits, and we are asked to consider them on the authority of Railroad Co. v. Heister, 8 Barr 445. That case really does not support the doctrine sought to be drawn from it. It admits the rule to be as set forth in Allison v. The Delaware and Schuylkill Canal Co., 5 Whart. 482, that this court cannot examine into the merits of the report of viewers, and places its interference on the refusal of the court below to interfere under mistaken views of its own power. The whole tone of the opinion shows that the case is exceptional, and is unfortunate in its tendency to mislead in its seizing upon matters for interference which numerous cases before and since have held as constituting no part of the record. It will be serviceable, therefore, to collect and collate the cases which prove the extent of the revisory power of this court, first stating the position of the case before us..

The charter of the Pennsylvania Railroad Company is contained in the Act of 13th April 1846, Pamph. L.- 312, and its various supplements. The 12th section of this act and the 4th section of' the supplement of 27th March 1848, Pamph. L. 274, confer the power of assessing the damages fór property taken for the railroad upon viewers, whose report is made upon their own view, and is subject to the confirmation of the Court of Common Pleas. That court, therefore, holds a supervisory power over their proceedings, to see that they are regular and not contrary to law. It may set aside the report for gross errors or misconduct in the viewers, or for very gross inadequacy or excessiveness in the damages. But no appeal is given to this court and the judgment of the lower court is therefore final, except for errors or irregularities manifest upon the face of the record.

The power of the legislature to regulate the mode of assessing the damages in this way is clear. A railroad corporation is a creature of law, deriving its powers and privileges from the will of the legislature, and its charter is therefore the law of its birth and its growth. In taking private property for its road it exercises a part of the sovereign power of the state — that of eminent domain, w'hich is uncontrolled by constitutional restriction, except that of making just compensation, the mode of ascertaining which is regulated by the law which gives the consent of the legislature to the taking. The corporation, itself the creature of the law, can therefore demand no trial or superior supervision withheld from it by the law. Indeed the right of trial by jury has never been held to belong to the citizen himself in proceedings by the state under her powers of eminent domain: McKinney v. Monongahela Nav. Co., 2 Harris 65.

The only supervision of this court in proceedings of this sort is that given by the general law conferring the authority to correct all and all manner of error of the justices, magistrates and courts o‘f this Commonwealth in the process, proceedings, judgments and decrees, both in criminal and civil proceedings: Acts 22d April

1722, § 13, and 16th June 1836, § 1; Brightly’s Purd. 1861, p. 928, pi. 19. If anything can be considered settled it is that the power under these acts is confined to those matters which appear upon the face of the record, so that neither upon a writ of error nor upon a certiorari will this court travel out of the record to take up the evidence, oral or written, or the unrecorded determination of any inferior tribunal, unless when legally brought up by a bill of exceptions tacked to the record. And the bill of exceptions itself lies only in the eases given by express statute. It therefore does not lie to the opinion of the Common PÍeas in receiving or rejecting testimony on a motion for summary relief: Shortz v. Quigley, 1 Binn. 222. It will not lie to a decision upon the right of counsel to conclude to the jury: Robeson v. Whitesides, 16 S. & R. 320. But what is more to the purpose, in Bell v. Bell, 9 Watts 47, the statute of Westminster 2d, giving the bill of exceptions to any one impleaded, &c., does not extend to an inquiry of damages executed at the bar of the court. See also Clymer v. Thomas, 7 S. & R. 180.

What is properly brought up by a certiorari is so fully stated by Gibson, J., in Union Canal Co. v. Keiser, 7 Harris 137, it may be given in his own language. The proceeding related to the assessment of damages for diverting wrater from a mill. “ Being here on certiorari” (he says), “ we are not at liberty to rejudge the judgment of the inquest; nor, if we had the power, have we the lights proper to do so. The Statute of Westminster 2d gives a bill of exceptions only in a trial according to the course of the common law, and there is no other means of putting evidence on a record. The testimony of the witnesses at the hearing of the inquest is consequently not before us; nor would depositions at the hearing of the exceptions to the inquisition have been so. No lawyer ever heard of sending up evidence given to freeholders on a plaint under the Landlord and Tenant Act. Under what seal would such evidence come, or by whom would it be certified ? A certiorari lies not to an inquest, but to a court which has cognisance of exceptions to its inquisition; and the regularity of the proceedings is all that is examinable on it. Exceptions to the merits of the inquisition being addressed as they are like a motion for a new trial to the discretion of the judge, are determinable by him exclusively ; for we would be incompetent to judge how far he ought to have believed the witnesses. The legitimate business of a court of error is not the trial of facts.”

The extent of the-revisory power of this court upon a certiorari, had been before fully stated by the same judge, when Chief Justice, in The Commonwealth v. Nathans, 5 Barr 124, a case of wife desertion removed from the Quarter Sessions. It was there held to be confined to the correction of irregularity in the proceedings and of excess in jurisdiction. S.ee also Commonwealth v. Nathans, 2 Barr 144. The subject was again examined and fully discussed by Coulter, J., in Derry Overseers v. Brown, 1 Harris 390, a pauper case; and the same principle stated. These principles were applied to the following cases. The dissolution of a foreign attachment and discharge on bail: Miller v. Spreeher, 2 Yeates 162. The irregularity of an execution depending on extrinsic facts: Righter v. Rittenhouse, 3 Rawle 273. Contested election cases: Carpenter’s Case, 2 Harris 486; Wallington v. Kneass, 3 Id. 313. Proceeding to alter the boundary of townships: Catharine and Frankstown Townships, 7 Casey 303. Proceeding of Quarter Sessions, on remission of forfeited recognisance: Harres v. Commonwealth, 11 Id. 416 ; Commonwealth v. Justice, 10 Id. 165. The incorporation of a borough: Sewickley Borough, 12 Id. 80. Proceeding upon a warrant of arrest under Non-imprisonment Act 1842: Berger v. Smull, 3 Wright 302.

The following cases are directly on the subject of railroad and canal damages. In Willing v. Baltimore and Ohio Railroad Co., 5 Whart. 460, it was held that the Court of Common Pleas had no power to re-examine the merits of the report of viewers, and set it aside for mere inadequacy or excessiveness of damages, under a law authorizing exceptions to the report to be heard, and the report affirmed or set aside by the court, as should be lawful and right. The authority of this case was doubted by Justice Rogers, in Railroad v. Heister, 8 Barr 453; but in Railroad v. Gresner, 8 Harris 240, the principle of Willing’s Case, as to the damages, was reaffirmed. And before this, as early as 2 Watts 199, this court had decided, in Commonwealth v. McAllister, that it had not the means of judging of the truth or justice of this exception, even if it had the power to correct it. Then “came the case of Allison v. Canal Co., 5 Whart. 482, affirming Commonwealth v. McAllister, and concluding with this authoritative ruling: “ Such of the other exceptions as have been urged depend on depositions which we have determined, perhaps after some contrariety of decision in cases of this kind, to be inadmissible ; and this is to be taken for the established practice of the court.” The ease of the Union Canal Company, already cited, sets forth the reasons of this rule, and shows, as remarked in Commonwealth v. McAllister, the court has no means of reaching questions not found in the record itself. This disposes of all the matters dehors the record set forth in the exceptions contained in the 1st assignment of error; and also of the matter contained in the 2d assignment of error.

This brings us to the exceptions involving matters contained in the record. There is nothing in the 1st and 2d exceptions, the power of amendment being clearly contained within the power over the proceedings conferred upon the Common Pleas.

The 7th and 8th exceptions raise the question whether that portion of the lot occupied by the parsonage fell within the power of the viewers under the Acts of 23d April and 12th August 1864. It is urged that these laws apply only to a place of public worship, and not to a parsonage, which is but a dwelling for the convenience of the pastor. The general proposition is probably correct; but the case before us does not fall within it. The company would be a trespasser ab initio, if the case he one not within the power of the viewers. By the llth section of the charter of 1846 the company was forbidden to pass through a dwelling-house as well as through a place of public worship and a burial-ground. The 3d section of the supplement of 1848 removed the prohibition from dwellings kept for rent, leaving it in force as to dwellings in the possession and occupancy of the owners. The enabling Act of 23d April 1864 extended to tunnels under a place of public worship only; leaving burying-grounds and homesteads in possession subject to the prohibition. No authority being given to tunnel under dwellings in possession of the owner, an injury by tunnelling beneath a dwelling rendering it unsafe for occupation would be an infringement of the rights reserved to the owner, and therefore protected from interference by the charter. In this instance the tunnel passes beneath a corner of the church, and under the whole width of the parsonage. If the parsonage be viewed as wholly independent of the church, the greatest portion of the tunnel was unlawfully located beneath it, and the argument which denies the power of the viewers over it forbids the entry of the company. But as we view the case, giving the Acts of 1864 their true interpretation, the entry of the company upon the lot common to both buildings is an undivided act, operating upon one and the same ownership, and compensated by the same proceeding. The second proviso of the Act of April 1864 requires the viewers, if they find that a place of public worship is so damaged by the tunnel as to render it unsafe to be occupied, to assess the damages at the full value of the buildings and lot so occupied. The supplement of August 1864 repeats this language, and adds or lots connected therewith. The appraisement was therefore not to be confined to the church or principal building, or that portion of the ground occupied by it, but embraced the lot and buildings. A congregation often is the owner of a lot embracing not only the church, but other buildings, such as the sexton’s house, or a parsonage, or society or school rooms, which are mere appendages, and cannot be separated from the main building without inconvenience and perhaps great loss to the congregation. It would be manifestly unjust to the congregation whose church has to be abandoned, by reason of want of safety, to compel it to divide its lot and retain its mere church appendages. As in a partition, therefore, where division would prejudice or spoil the whole, the law required the viewers to value the lot and the buildings. In this case the-report of the viewers finds “ that the said church and parsonage are so built and connected together upon the said lot of ground as to be in the opinion of the undersigned an entirety, and incapable of being separated without great damage and prejudice to or spoiling both of said buildings.”

The unity of the buildings is therefore a fact spread upon the record. This reasoning is reinforced by the Act of August 1864, which requires the conveyance of the lot or lots and buildings to the company on payment of the damages. The law, therefore, converts the proceeding into an involuntary sale on part of the owner, when it is found that the church is rendered unsafe. This want of safety operates as a dispossession, and justice and fair dealing demand that the property shall be treated as an entirety, and not disintegrated to the disadvantage of the owner. He must convey the whole, and the company must take and pay for the whole. The assessment of the whole was therefore proper, and so much of the report as varied the case to suit the view the court might take of the law becomes surplusage merely.

The 11th, 12th and 13th exceptions involve the time at which the damages should be assessed. There is nothing on the face of the report showing what period the viewers adopted as the time of the computation. The finding is, as of course, of the date when it was done; but the presumption is that the viewers, in making this assessment, did so as of the proper legal period.

The contrary not appearing, the offer to show the time by evidence has already been shown to be outside of the record and not falling within the supervising power of this court. The law has given no appeal to us on the facts.

Finding no error in the record, the judgment is therefore affirmed.