
    Pringle Street. Kingston Borough, Appellant.
    
      Road law — Report of viewers — Mandamus.
    A report of viewers set forth 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 proceeded 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.” Held that the confirmation of the report was not an adjudication of an indebtedness against the borough in the nature of a judgment under which a mandamus could issue.
    Argued April 17, 1895.
    Appeal, No. 21, Jan. T., 1895, by the Borough of Kingston, from order of Q. S. Luzerne Go., Sept. T., 1872, No. 19, awarding mandamus.
    Before Sterrett, C. J., Green, Williams, McCollum and Mitchell, JJ.
    Reversed.
    Petition for mandamus.
    Upon the petition of Nelson G. Pringle and Samuel Pringle a rule was granted to show cause why mandamus execution should not issue.
    The facts appear ’by the opinion of the court below and of the Supreme Court.
    The court made the rule absolute. Woodward, J., filed the following opinion, in part:
    “ The main question in this case, is whether the report of the viewers filed and confirmed absolutely on Jan. 25,1873,'con-stituted a judgment for $750 in favor of the owners of the land occupied by the street, between the southeasterly side of the Pringle House and Toby’s creek. It is claimed that the report did not constitute such a judgment, for the reason that the names.of the landowners between the points in question are not specifically set out in the body of the report. And there would be force in this claim, except for the fact that the viewers attached to their report a draft, which shows exactly what they meant, and to which they refer as part of their report. ... If the draft attached to the report and referred to by the viewers, is to be considered as indicating their intent' and purpose, there can be no uncertainty as to what was meant. Looking upon the proposed street as consisting of two sections or divisions, the one beginning at Main street and extending to the Pringle House; and the other running from the Pringle House to Toby’s creek, they find that no one would sustain damages on the first division; but that on the second, the damages would be $750. The only owners of land on this' section of the street, are the Pringle heirs. Upon their land' stood three buildings — a dwelling house, a wagon house, and a barn. The draft clearly shows the buildings and their relative positions. The proposed street cuts all of them in two. It was for this injury that the viewers awarded the damage and for no other. . . . The statement of the viewers near the close of their report, that it would be burdensome, wrong and unjust to assess the lot owners or the borough with advantages sufiicient to pay the damages,’ etc., is of no effect so far as the borough is concerned, and is to be considered as a purely superfluous expression of opinion. Where the proper authorities of a borough adopt a resolution or pass an ordinance for the opening of a street, and viewers are appointed who award damages without assessing benefits to pay them, the law imposes the burden upon the borough, and requires the payment of the damages out of the borough treasury. See Parkersburg street, 23 W. N. C. 391. The same principle is recognized by the general road law of 1836, which requires the payment of damages from the opening of county roads, to be made from the county treasury. See act of 1836, P. L. 656. We refer also to the case of Sedgely Avenue, 88 Pa. 514.
    • “ The rule to show cause why a mandamus shall not be issued is now made absolute. And a mandamus execution is granted as prayed for.”
    
      Error assigned, among others,
    was (4) in finding that the report of viewers was equivalent to a judgment in favor of the Pringle heirs against the borough.
    
      Thomas H. Atherton, for appellant.
    
      F. W. Wheaton, Darling and Woodward with him, for appellees.
    April 29, 1895:
   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.  