
    TURNER’S APPEAL.
    loa proceeding to assess damages for land taken by a railroad; an objection, io 1 he claimant’s title must be made when the viewers are appointed, or by an appeal.
    The Court will not allow an answer, denying the title of the claimant, to be filed nunc pro tunc, after the report of the jury.
    Certiorari to the Common Pleas of Philadelphia County. No. 256 Jan. Term, 1870.
    This was a proceeding to assess damages to the land of John Turner, sustained by the construction of The Connecting Railway. The viewers reported inter alia as follows : “We heard the said parties, their counsel and witnesses, and we have estimated, and determined the quantity of land taken from said petitioner, and occupied by the said Railway Co., being the two strips or triangular pieces of land, represented on the plan hereto annexed, to be 856 ft. and 81-100 sq. ft., and the quality of said land to be unimproved land, suitable fo.r suburban residences, and the value of land so taken and occupied to be $100. Having had a due regard to, and having made just allowance for the advantages, which may have resulted, or seem likely.to result to the said John Turner, in consequence of the opening and making of said railroad, and the construction of works connected therewith, and after having made a just and fair comparison of said advantages and disadvantages, we estimated and determined that said John Turner has been damaged to the amount of $1,000, that is to say, in or by reason of the value of the land taken $100, and in or by reason of the depreciation of his remaining land, $900. And we report, that the said sum of $1,000 was to be paid by the Connecting Railway Co., to the said John Turner. We annex hereto, part of this, our report, a plan, being part of the certified copy of the proceedings, in the case hereto annexed, showing the land of the petitioner taken and occupied by the said Railway Co., and the remaining land of said petitioner, of which the laud taken is a part.” On Nov. 14, 1869, the Court decreed as follows: It is ordered and decreed, that the company pay the jurors their fees, amounting to .$210, provided, that if the Court should ultimately adjudge so, the same shall be repaid to said Co. by the said John Turner ; with right of either party to a certiorari should said adjudication be deemed erroneous. On Nov. 25, the Connecting Railway Co. appealed from the report of the viewers, but on Dec. 31, 1869, the Court struck off the appeal in the following opinion per
    Allison, J.
    The Connecting Railway Company, by the fourth section of the act of the 14th of April, 1863, is made subject to all the provisions and restrictions, and entitled to all the privileges of the general laws of Pennsylvania affecting railroad corporations. P. L. 1863, P. 457.
    The third section of the act of April 9th, 1856, P.’ Laws 288 gives to either party an appeal from the report of a jury appointed to assess damages, for land or materials, taken for the construction of'a railroad; which appeal may be tried by a jury. The appellant may also file exceptions with the appeal. If they are allowed, a hew view must be ordered, but if disallowed the trial proceeds.
    The supplement to the act incorporating the Connecting Railway Company, passed the 7th of May, 1864, P. L. 896, repeals, so much of the 4th section of the act of 1863, as subjects the said company to all the provisions and restrictions, and entitles-them to all the privileges of the general railroad law, affecting railroad corporations, in reference to securing, assessing and paying damages, resulting from the location of said railroad.
    
      A subsequent portion of this section gives to the company, and the claimant for damages, a right to file exceptions, either to the regularity of the proceedings, or to the assessment of damages.
    The right of the railroad company to appeal from the assessment of damages, and to have a trial by jury, on said appeal, is clearly taken away by the act of 1864.
    The appeal and trial by jury which is given to either party, by the act of 1856, is out of the course of proceedings, which from time immemorial had been followed in regard to the assessment of damages for land taken for highways in Pennsyl vania. The questions of value have been decided by the Court, on exceptions filed to the report of the jury appointed to assess such damages, and when by the act of 1864, the privileges and restrictions of the act of 1856, in regard to the assessment and payment of damages, were taken away from both the company and the owner of the land or material, this right of appeal, with its incidents, could no longer be claimed. The parties are turned over 'to their exceptions, to be decided by the Court without a jury trial, as is done in all cases of damages, under the general road law.
    The appeal of the company is stricken off.
    On the 25 Nov. the Connecting Railway also filed exceptions, which were as follows : 1st. The Connecting Railway have not entered upon the land of the petitioner, and have not laid out upon, or appropifiated from the same for their usó, as roadway, the two triangular pieces of land as sA?d in the report of the viewers; 2nd. the plan annexed to said petition, and made part thereof, shows that only part of the public. highway, called Ellwood lane, has been appropriated by the Railway Co.; 3rd. the plan annexed to the said petition does not show that the petitioner was the owner of the land, lying on the southeast side of Ellwood Lane, and therefore the inference cannot be made that he is the owner of any part of the land ; 4th. the damages awarded are excessive ; 5th. the damage of which the petitioner complains of, by the use of part of Ellwood Lane is not direct, but consequential. The Court sustained, the exceptions, and set aside the report of the viewers on Dec. 18, 1869, in the following opinion per
    Ludlow, J.
    Two motions have been made in this case, we will dispose of both in this opinion.
    John Turner petitioned the Court at October Term, 1869, for a jury to assess the damages which he declared he. had sustained by reason of the construction of this railroad through his land. The jury proceeded in the ordinary method to discharge the duty imposed upon them, and after they had made a report the counsel for the railroad company came into Court and asked to file an answer nunc pro tunc denying the title of the petitioner to the land in question.
    This practice we cannot sanction and for the reason, that in Church v. Northern Central Railroad, 9 "Wr. 339, it was decided, “that if the party against whom the application is made does not at the time of the application for the appointment of viewers, object to the quantum of interest or title set forth, he is too late, and the only remedy is by appeal, unless. some special statute directs another course to be pursued, or the facts appear by the record or evidence legally before the Court. To permit an answer to be filed nunc pro tunc, and after the jury have completed their labors, would be merely by am ingenious method to get rid of an adverse report contrary to law ; it may be doubted whether in any case, at any time, an answer as such ought to be filed; it has never been the practice, and in the single instance in which in a road case an answer appears upon our records, it is to be remarked, that no objection was made to the answer, and the matter passed unnoticed by the Court.
    The motion therefore in this cause to file an answer nunc pro tunc is overruled.
    The second motion to sot aside this report upon exceptions filed to it, brings up for consideration a number of questions, and among others the one which declares the damages found to be excessive.
    
      It cannot be questioned that it. is our right and duty to examine all the evidence produced before the jury, and if for any reason we discover that the damages ought not to have been awarded, then they must necessarily be excessive. We do not look at that which can in any sense be said to bo dehors the record, but at that upon which the verdict has been founded, and if the evidence discloses as a matter of fact or law, that the land in truth does not belong to the petitioner, our sense of justice and right will not permit us to confirm the report awarding-damages.
    The Connecting Bailroad was incorporated in April, 1863, it has power to lay out, construct and operate a single or double track railway. By the evidence it appears that in June, 1863, the president of the road appointed an engineer “to make a survey and locate the line of the most practicable route as contemplated by the charterthis was accordingly done, and on. the 24th day of November, 1863, as appears by the minutes of the company, the board of directors 'approved the plans submitted, and a resolution was adopted directing the construction of the road, “to be commenced and prosecuted vigorously.”
    By the survey and location thus made and approved, the road passed over and along the middle of what was then Ellwood Lane.'
    In March, 1865, this lane was vacated, and the petitioner claiming to own a part of the land bounded by the lane, now claims damages for that portion of it, which as he insists reverted to him as soon as the said lane was vacated.
    We will not stop to inquire who was the real owner of any portion of the ground bounding the land in dispute, nor will we deny a principle perfectly well settled, to wit: that where a public street is called for as a boundary the fee passes to the centre of the street — Paul v. Carver, 2 C. 223 ; Cox v. Freedly, 9 C. 124; assuming both of these propositions to be true, for our present purpose and regarding this petitioner as the owner of the . adjoining land, has he any right to damages, or has he by this testimony such a title to the land as will justify a jury in giviuoto him any damages whatever.
    
      In Pennsylvania real estate is held subject to the right of eminent domain, and the Legislature have perfect power to authorize the construction of a road on a public highway — Bailey v. Miltenberger, 7 C. 37; Trenton Railroad Company, 6 Wh. 25; Mercer v. Pittsburg & Port Wayne Railroad, 12 C., 99 ; Commonwealth v. Erie and North East Railroad Company, 3 C. 354.
    There is nothing either in the Constitution of the Commonwealth or in the Statute book, which prohibits the Legislature from mounting, so to speak, an easement upon an easement. It is therefore perfectly clear that had not Ellwood Lane been vacated this petitioner could not have had a shadow of claim for damages, because he had no such immediate interest in the land covered by the lane, as would warrant a Court or jury in assessing damages in his favor.
    What was the legal effect of the act of March, 1865, vacating Ellwood Laiie upon the rights of the petitioner ? In answering this question we dispose of this case. Had the act of incorporation of this company passed after the law vacating the lane, the question would at once be solved in favor of the petitioner, and this would undoubtedly have been the case had the company been guilty of laches ox slept upon their rights.
    What, however, are the facts ?
    Early in 1863, acting under and by virtue of a power granted by the Commonwealth, this company proceeded by their agents to make an actual survey and location of their road, in November of the same year this survey and location are adopted by the company.
    Here then we have a grant by the sovereign power coupled with an acceptance of it, and an exercise of a legally conferred power by actual survey and location.
    After all these rights had attached, the act vacating the lane was passed.
    In Neal v. The Pittsburg & Connelsville Railroad Company, 7 Casey 19, a principle was adopted which rules this case — in that instance a road had been simply located, and although the company had not taken possession of the land, and desired to change their route, the Court held they were responsible for damages. Speaking of the proceeding to recover damages, the Court say, “The law allows this proceeding after the road is located, and after a proper effort to agree upon compensation has been made.” And again, “The company has made its choice and must stand on it.” IIow in this instance was a choice made ?
    Evidently in the opinion of the Court by locating the road,, and that act alone made the company responsible for the land damages.
    By analogy, the right gained by survey, examination and! location was again enforced in "Warren & Eranklin Railroad Company v. Clarion Land Company, 4 P. E. Smith'37, although the contest there was between two companies each claiming the right to the same route.
    Vested as the Connecting Railroad Company has been with ample powers derived from their legislative grant, having accepted this grant and acting upon it by actual survey and location, we are obliged to hold that no subsequent legislative enactment could strip the company of their rights and ' make them responsible for these damages.
    ’ We must therefore sustain the exception to the damages, and set aside the report of the jury.
    Turner then took a certiorari to the Supreme Court, complaining of the action of the Court below in sustaining the exceptions and setting aside the report of the viewers. Eor plaintiff, it was argued, that the action of the Court below leaves the appellant without any remedy. The o}-)inion of the Court was filed upon request of counsel, under Section 25 of the Act of Eeb. 24,1806-4 S. Laws 276, and becomes a part of the record ; Northumberland County Bank vs. Eyer, 58 Penna. 97. The record is the statement of facts as well as the conclusions of law ; Downing vs. Baldwin, 1 S. & R. 298; Munderbach vs. Lutz, 14 S. & R. 125. In Spring G-ardeu Street, 4 R. 192, the Supreme Court refused to require the President Judge of the Court of Quarter-Sessions to file an opinion in a road case, because it was not expedient to extend, the practice to a Court not named in the act. The Railroad. Co. can not raise an objection to the title of petitioner, by way of exception to the report of the viewers ; Church vs. Northern Central R. R. Co., 45 Penna. 339. The viewers .applied the true rule for assessment of damages. Damages by depreciation of property partly taken áre not consequential damages ; Hornstein vs. Atlantic & G. W. R. R., 51 Penna. 87; Harvey vs. Lackawanna & B. R. R., 47 Penna. 428 ; East Penna. R. R. vs. Hottenstine, 47 Penna. 28.
    Chapman, Biddle and T. Cuyler, Esqs., for the appellee
    argued that on the certiorari, the Supreme Court will not look beyond the record, and in proceedings in road cases, there can be no bill of exceptions, R. R. Co. vs. Lutheran Congregation, 53 Penna. 450. It is doubtful whether the 25th section of the act of Eeb. 24, 1806 warrants the filing of the opinion, if it does, the request ■should have been made on its delivery. A subsequent prayer fur it cornos too late, Meese vs. Levis, 13 Penna. 385. The Supreme Court are not disposed to carry the act of 1806 beyond its terms. Spring Garden Street, 4 R. 192; Reigart vs. Ellmafcer, 14 S. & R. 124. If the opinion has not been legally filed, the Supreme Court is precluded from considering any assignment ■of error thereto ; Lancaster vs. De Normandie, 1 Wh. 50. The statement of evidence contained in the opinion, becomes part of the record by filing the opinion ; Downing vs. Baldwin, 1 S. & R. 302. All veal estate in Pennsylvania is held subject to the right •of eminent domain in the State, and a purchaser always takes •subject to that right; Bailey vs. Miltenberger, 31 Penna. 37. The State may delegate her right of eminent domain to a corporation or to an individual. Brown vs. Corey, 43 Penna. 504. When a road is authorized, the taking of the necessary land for the purpose is authorized. Linton vs. Bridge Co., 1 Gr. 414, and the power of the legislature is not restricted to the taking •of land, but it may authorize a railroad to be built on a highway; Trenton R. R. Co., 6th. Wh. 25; Mercer vs. Pittsburg & F. W. R. R., 36 Penna. 104; Commonwealth vs. Erie and N. E. R. R., 27 Penna. 354; Snyder vs. Penna. R. R., 55 Penna. 343. Nnder the charter The Connecting Railway is invested with the right of eminent domain and is not answerable for consequential damages; Henry vs. Bridge Co., 8 W. & S. 86; Navigation Co. vs. Coon, 6 Penna. 382; Snyder vs. Penna. R. R., 55 Penna. 343. The Connecting R. R. had the legal right to use the whole or any part of Elhvood Lane for its road-way, without being answerable in damages if the location of the railroad was prior to the vacating of the Lane; Neal vs. Pittsburg R. R., 31 Penna, 20; Warren R. R. vs. Clarion Land Co., 54 Penna. 38.
    In reply it was argued that, Brown vs. Caldwell, 10 S. & R, 114, holds that the opinion becomes part of the record, though it does not appear to have been filed at the request of either party; Meese vs. Levis, 13 Penna. 385. There was a trial by jury, and the request to file an opinion is recited as analogous to a question to the charge of the judge, hence the ruling, that it must be made before verdict. The act applies to the associate judge as well as the president judge; Act of Feb. 3, 1844, section 8, P. L. 10; Mayor vs. Commonwealth, 41 Penna. 335; Foust vs. Commonwealth, 33 Penna. 338; Kilpatrick vs. Commonwealth, 31 Penna. 198; Zephon’s Case, 8 W. & S. 382. The Court could only examine into the illegality of the appointment, proceedings, or report of the viewers, or on account of any overestimate or underestimate of damages assessed by them; Act of May 7,1864, Section 1, P. L. 896. The location of the Railroad Co. within the City of Philadelphia was illegal, until they had submitted their plans to the board of surveyors; Act of April 21,1855, Section 10, P. L. 266. A survey and adoption of a route gives no title to be an easement as against the land, nor can the plan make or unmake Turner’s title. His title is alleged in the petition, and is presumed to have been proven to the satisfaction of the viewers. The plan does not show that Elwood Lane was vacated, but it is immaterial, as the legislature had vacated it four years before.
   The Supreme Court reversed the decision of the Common Pleas on May 5th, 1870, in the following opinion per;

Agnew J.

We think the Court below erred in setting aside the report in this case without ordering a new view. The effect was to leave the petitioner without a remedy. But it is said that the Court did this on the ground that the petitioner had no title to the locus in quo: to which effect are some of the exceptions, and therelore he was entitled to no damages. If this be true then this was an error, for the supplement to the act of incorporation passed May 7th, 1864, P. L. 896, changing the mode of assessing damages, expressly confines the exceptions' to irregularities in the appointment, proceedings, or report of the viewers, or on account of any overestimate or underestimate of damages assessed by them.

. There were no exceptions falling within this provision, except the 4th and 5th; the 4th was that the damages were excessive, and implied that the petitioner was entitled to recover some damages, but not so much as allowed. The 5th asserts that the damages were consequential only. But this is contradicted by the petition for land actually appropriated, and by the report which allows $100 of the damages for 856 81-100 square feet of land, which the viewers find as the quantity of two strips of land ■taken from the said petitioner, and occupied by the said railroad company. The remainder of the damages only, allowed for depreciation, is all that could be supposed to be consequential under any circumstances.

It is very obvious, therefore, without looking into the opinion, that the Court must have decided the case on the question of title, and this clearly could not be done in the state of the proceedings as they then stood.

The defendants had filed no plea, answer, or motion, objecting to the title set out in the petition, while the Court had refused leave to answer nunc pro tunc. The question of title -was, therefore, according to Church v. Railroad Company, 9 W right, 339, not before the Court. The title was set forth in the petition, the order to view issued, and the report was made accordingly, while the law permits exceptions to them only on the ground of irregularity and of damages. The petition and order to view submitted no question of title to. the viewers. It is obvious, therefore, that on the face of the record there was no exception on which the Court could set aside the entire report, without making an order that would enable the petitioner to proceed to a new assesment.

The order and decree of the Common Pleas setting aside the report is therefore, reversed, and it is ordered that the reportAnd exception thereto be restored, and the record remitted to the Court below, with a procendendo to hear and determine upon the exceptions according to law.  