Wilson v. City of Scranton

OPINION,

Me. Justice Mitchell :

If the appellant were right in regarding the motion to strike off the proceedings as raising a question of jurisdiction, its contention here would have to be sustained. But there was no defect of jurisdiction in the initiation of the proceeding, which was by a petition filed by the plaintiff asking the assessment of the damages to his property by the city’s action in building the sewer. Of this subject the court had general jurisdiction under the act of 1874, and was the proper place for the filing of the petition. The plaintiff, therefore, was in court upon a valid application to its unquestionable powers. The appointment of three viewers, under the void act of 1887, instead of seven, as required by the act of 1874, was an irregularity for which the appointment would undoubtedly have been vacated had the objection been made in time, but it did not affect the jurisdiction of the court over the parties or the subject-matter. The viewers thus appointed having gone on and made their report, the city appealed, an issue was framed, and the jury sworn, and then for the first time the objection was made. It was too late. The parties were properly in court; the appeal had started the proceedings de novo according to the course of the common law, and the previous irregularity had become immaterial. The learned judge was right in overruling the motion.

The other assignments are more serious. A fundamental error runs through the trial, in assuming that the city had taken the ground occupied by the sewer, absolutely, and was therefore liable for its full value. The city might have done so, and perhaps the fair presumption would be that it had; but it was not obliged, nor in strictness was it authorized, to take more than was actually necessary for its purpose. The limit of the public right is the public necessity, and the residue, as it may be called, of the use of the land, remains unaffected in the owner. The extent of such residue depends on the nature of the public use, and that may vary all the way from the exclusive occupation for a school-house or public building to the easement of running a gas pipe underneath or a telegraph wire overhead. The city was therefore entitled to show the extent of its actual taking. This, however, could only be shown by corporate action. The city would not be bound by the opinions of experts, even of the city engineer, as to the amount of interest in the land that should be taken. That was within its own discretion, provided, of course, it did not exceed the limits of necessity for its purpose. The plaintiff was entitled to have its intention shown by action binding on the corporation, and put on the record in such form as to give him a cause of action in case the city officials 'should at any future time attempt to do anything in excess-of their privileges actually acquired and paid for. This, however, being properly shown, the extent to which the rights so acquired would interfere with the plaintiff’s enjoyment and use of his land, and the consequent effect on its value, could be shown by experts as in other cases.

The resolution offered by appellant appears to have been a joint resolution of councils, approved by the mayor. It was objected to as irrelevant, immaterial, and incompetent. The argument of appellee specifies the further objection that it was not proved, identified, or certified as required by the act of 1874. As this matter does not appear on the record, we do not pass upon it, but the resolution, if properly proved, was competent. And, the limits of the city’s exercise of the right of taking the property being thus shown, the questions to the plaintiff and others, as to the actual state of things on the land and the effect on its value, should have been admitted.

I take this occasion to call the attention of counsel to the making up of paper-books. A brief table of contents is not an index. In the present case one hundred and twenty-six pages are lumped together, without other clue than the single word “ evidence ” in the so-called index. It would greatly facilitate our labor, if counsel, in addition to the quotation of the evidence required by Rule XXIV. to be made in the assignments of error, would add a reference to the printed page where such evidence is to be found in its appropriate place.^*

Judgment reversed, and venire de novo awarded.

* The entire “Index” to the appellant’s paper-book in this case was as follows:

INDEX.

Page.

Abstract of proceedings, . . . . 1

Verdict and judgment, . . . . 4

History of the case, . . . . . 4

Plaintiff’s points, . . . . . 5

Defendant’s points, . . . . . 7

Charge of court, . . . . . 8

Assignments of error, . . . . . 18

Argument, . . . . . 22

Evidence (App.), . . . . . 1

Opinion of Court (App.), . . . . . 128

It is important to know in what stage of the trial of a case an offer is made, the admission or rejection of which is assigned for error. The offers in this case could be found only after a laborious hunt after them, made with great patience. See Hessel v. Bradstreet Co., ante 501, and the prefatory note to this volume.