Pringle Street

Opinion by

Mr. Chief Justice Sterrett,

The vice of this decree, awarding a mandamus against the borough appellant, is that there was no judgment, or decree in the nature of a judgment, or any definitely ascertained indebtedness of the borough to the appellees or either of them on which any execution process could by any possibility issue. It was a mistake to assume that the confirmation of the report of the viewers in January, 1873, was in effect a decree for the payment of money by the borough to the appellees or to any other person, because the viewers neither assessed, nor intended to assess, any sum or sums of money, as damages, against the borough in favor of anybody. That clearly and conclusively appears by their report. After setting forth therein that, “ In opening said Pringle street, beginning at Main street and running up to the Pringle House, we find that no person would sustain damages exceeding the advantages, the said street being opened nearly all the way between these two points,” the viewers proceed to say: “ in our opinion the damages would be $750 by the opening of the street from the southeasterly side of said Pringle House to the creek, and in. our opinion the individuals owning lots and land along the line of said street would not be benefited by the opening or extending of the said street from the southeasterly side of said Pringle House to the creek, and it is also our opinion that the borough would not be benefited by the opening of said street between the last two points named; therefore we hereby report that it would be burdensome, wrong and unjust to assess the lot owners or the borough with advantages sufficient to pay the damages that would be caused by the opening of said street from the southeasterly side of the Pringle House to the creek.” In other words, while they express their opinion that the damages caused by the opening of the northwesterly portion of the street would be $750, they not only omit to specify how much thereof should be paid to the respective owners of property abutting tbereon, but they decline to assess the same against the borough, or against other property owners in the form of special benefits, and distinctly give their reasons therefor.

While the report is clearly not a proper execution of the order issued to the viewers, and perhaps ought to have been set aside or recommitted to them, the court and all parties concerned appear to have acquiesced in the action and suggestions of the viewers, and thenceforth, for over twenty years, treated the proceeding as an opening and settlement of damages merely of the southwesterly portion of the street, from Main street to the Pringle House, and a temporary abandonment of proceedings as to the northwesterly portion of the street. But, however that may be, it is very clear that there is nothing in the report of the viewers or in the confirmation thereof by the court to sustain the mandamus.

It follows from what has been said that the learnod court erred in awarding the mandamus; and all the assignments of error, except the first, should be sustained.

Decree reversed and petition dismissed with costs to be paid by the appellees.