Frazee v. Manufacturers Light & Heat Co. , 1902 Pa. Super. LEXIS 254 ( 1902 )

Opinion by

Beaver, J.,

Upon the petition of the plaintiff, viewers were regularly appointed to view and assess the damages sustained by him by reason of the appropriation by the defendant of the right of way through his land for the location of a pipe line for the transportation of natural gas under the right of eminent domain. The viewers made their report from which the plaintiff appealed.

On the trial of the appeal before a jury, the defendant moved the trial judge to direct the jury to go upon the premises and view the location of the pipe line before rendering their verdict. The motion was admittedly based upon the 2d section of the Act of May 21, 1895, P. L. 89.

The court refused the motion on the ground that the act of assembly referred to did not apply; and that is the only question in the case. Does the Act of May 21, 1895, P. L. 89, apply to the trial of appeals from the reports of viewers assessing damages for land occupied for and by a pipe line under the right of eminent domain?

The title of the act is “ An act relating to actions brought to ascertain or recover damages for appropriation of rights of w&y or easements in lands by corporations invested with the right of eminent domain and empowering and authorizing owners of land and corporations, municipal or otherwise, desiring to exercise the right of eminent domain in such lands, to waive the assessment of damages by viewers and granting the right to either party to demand and have the jury engaged in trying such action visit and view said land and premises.” The 2d section provides that either party to such action as is referred to in section 1 of this act shall have the right during the trial of such action .... to have the jury visit and view the premises, etc., but the actions referred to in section 1 are those only which are described in the title of the act and are clearly only such as are brought directly to recover damages without the intervention of viewers to assess the damages. The present case having-arisen by appeal from the award of viewers regularly appointed, as required by law, at the time of the passage of the act referred to, is not within its provisions and the demand of the defendant was not, therefore, of right but was merely an appeal to the discretion of the trial judge. There is neither evidence nor suggestion of an abuse of discretion and the judgment is, therefore, affirmed.