Pittsburgh National Bank of Commerce v. Shoenberger

Mr. Justice Green

delivered the opinion of the court, January 4th, 1886.

We feel obliged to say in this case that both under the act of 5th of May, 1832, and its supplement of April 18th, 1865, lateral railroads cannot be built of greater width than tAventy feet. Of course, under the act of 1865, if a greater Avidth than that is necessary for the construction of sidings, wharves, chutes, etc., mentioned in that act, such additional width could be used for those specific purposes. In that event the special additional structures, together with the quantity of ground requisite for the purpose,' should be carefully described in the petition and order, so that they may appear on the record. Both the original act and the supplement authorized the construction of double track roads, and hence no inference of additional width can be drawn from the fact that double track roads are authorized by the supplement. As a greater Avidth than twenty feet is-expressly prohibited by the original act of 1832, the Avidth becomes a jurisdictional fact, Avliich may be taken advantage of at any stage of the proceedings. We think, also, that as damages are to be assessed in the same manner as under the act of 1849, the number of viewers should be seven instead of six.

The judgment of the court beloAv is reversed, and the petition, order, and all -proceedings are dismissed and set aside, at the cost of the defendants in error.