
    * [Philadelphia, May 5, 1838.]
    SCHULER against THE NORTHERN LIBERTIES AND PENN TOWNSHIP RAIL ROAD COMPANY.
    1. Proceedings on the assessment of damages in the ease of land taken by a rail-road company, under the authority of an act of assembly, may be removed into the Supreme Court by certiorari.
    
    2. Where an act of assembly directed, that if the parties could not agree upon the amount of damages, it should be lawful for the Court of Common Pleas to award a venire, &c., and on the report of the jury and final judgment thereon, and on the payment of the amount of damages to the owner of the land, or if he should refuse to receive it, or be incapable, &c. then, on payment of the money into Court, the company should become seized of the same estate, &c. as the owner had, it was 
      held, that after such judgment and payment of money into Court, &c., the company had a right to enter upon the land in respect to which damages wore awarded, although a certiorari had issued from the Supremo Court to remove the proceedings, and the proceedings were there depending ; and that they wore not to be considered as trespassers ah initio, on account of any excess.
    This was an action 'of trespass quare clausum fregit, &c. brought in this Court by John C. Schuler against the Northern Liberties and Penn Township Rail Road Company, its officers, agents, &c.
    The case was tried before Sergeant, J., at a Court of Nisi Prius held at Philadelphia on the 15th of November, 1886, when-the plaintiff proved his title to the close upon which the alleged entry was made, and gave in evidence the act of assembly for the incorporation of the rail-road company, and other purposes, passed on the 23d of April, 1829, the material part of which was as follows.
    “ Sect. 15. And he it farther enacted hy the authority aforesaid, That whenever it shall be necessary for the president and managers of the said company, to enter in, upon, and occupy for the purpose of making said rail-road, any land upon which the same may be located, or to make use of any stone, sand or gravel, for constructing said road, if the owner or owners of the said land, stone, sand or gravel, shall refuse to permit such entry, occupation or use, and the parties cannot agree upon the compensation to be made for any injury or supposed injury, that may be done to said land by such entry and occupation, or use of materials, it shall and may be lawful for the parties to appoint six suitable and disinterested persons, to estimate such damage, who shall be under oath or affirmation, fairly *and impartially to estimate the same, and shall reside within county expenses said appraisers shall bo defrayed by the said rail-road company: but if the parties cannot agree upon such persons, or if the persons so chosen shall not decide upon the matter, or if the owner of such land shall refuse or neglect to join in such appointment, within ten days after requisition for that purpose upon him made, or if such owner shall be feme covert, or under age, non compos mentis, or out of the county, then it shall be lawful for the Court of Common Pleas of the County of Philadelphia, on application of either party, and at the cost and charges of the said corporation, to award a venire, directed to the sheriff of the county, requiring him to summon a jury of disinterested men, to view and examine and survey the said lands or materials to be taken, as the case may be, and estimate the injury or damage if any, that in their apprehension would be sustained as aforesaid, by reason of said rail-road, and report the same, under their oaths or affirmations, to the said Court; which report being confirmed by the said Court, judgment shall be entered thereon, and the said sheriff and jurors shall be entitled to the like fees for their services as are allowed by law in other cases of special juries, to be paid by said company ; and it shall be the duty of all appraisers and jurors, as the case may be, in estimating such injury or damage, to take into consideration the advantage that will be derived to the owner or owners of the said lands from the said rail-road: Provided, That upon the coming in of such report or inquisition, and confirmation thereof, and final judgment thereupon, and the said company paying to such owner the sum in such report or judgment specified, in full compensation for said lands, or for the injury sustained as aforesaid, or if the said owners should be absent or unwilling to receive the same, or be otherwise incapacitated from the same, or any doubt should exist of the proper person to receive the same, then, upon the said company paying the same into Court, to be disposed of as they may direct, the said company shall become seized of'the same estate in the said lands, which the owner held in the same ; and they, and all who act under them, shall be acquitted and freed from all responsibility for and on account of such injury; Provided, That the payment of damages aforesaid, for lands through which said road may be laid, or from which any stone, sand or gravel for constructing said road, shall be made before the said company, or any other person under their direction or in their employ shall be authorised to enter upon and break ground in the premises, or use any such stone, sand or gravel, except for the purpose of surveying or laying out said road, unless the consent of the owner of such land be first obtained: Provided, That if the said company shall desire to erect wharves, storehouses, or the like buildings for the accommodation of trade, they shall obtain the land necessary therefor by agreement of the owner only.
    *Sect. 19. And be it further enacted by the authority aforesaid, That if the said company shall not construct the rail-road authorised by this act, so far, at least,-as from the river Delaware to the junction with the said Pennsylvania railroad to Columbia, [within the term of five years from the passing of this act,] or if after the completion of said rail-road, the said company shall suffer the same to go to decay and be impassable for the term of two years, then this charter shall become null and void, except so far as to compel said company to make reparation for damages.”
    It appeared in evidence that pursuant to the provisions of this act, notice was given to the plaintiff by the solicitor of the company on the 15th of June, 1833, to join in the appointment of appraisers. The plaintiff not choosing to join in this appointment, application was made by the company to the Court of Common Pleas, who awarded a venire to obtain an assessment of the damages. On the 29th of July, 1833, the report of the jury was filed, awarding to the plaintiff the sum of $1300 for a large lot of ground and $100 for a small lot. Exceptions to the report were filed by the plaintiff on the 16th of August, 1833. On the 26th of November following, the exceptions were argued and dismissed, and the report confirmed. On the same day the amount awarded for damages was paid into Court by the company. On the 28th of November a certiorari issued from the Supreme Court with a special allocatur, to remove all the proceedings in the matter of the assessment of damages in this case. The proceedings were brought into the Supreme Court on the 7th of December. The entry of the defendants into the plaintiff’s premises for the purpose of making the rail-road, which was the trespass complained of in this action, took place on the 24th of December. The plaintiff’s stable was partly taken down, and his fences removed. The evidence as to the degree of force used was contradictory.
    The jury under the direction of the Court, returned a verdict for the defendants.
    A motion was made for a new trial; and a rule to show cause having been granted—
    Mr. Keemlé and Mr. Randall for the plaintiff,
    cited Newlin v. The Commonwealth, (5 Binn. 26); Grubb v. Fox, (6 Binn. 461); Gardiner v. Murray, (4 Yeates, 560); Case v. Shepherd, (2 Johns. Cas. 27); 1 Bac. Abr. tit. Certiorari, letter G. p. 507.
    Mr. Goodman, contra,
    
    cited, Anon. (4 Dall. 214); Entwistle v. Shepherd, (2 Vern. Rep. 78): Commonwealth v. Beaumont, (4 Rawle, 366); Bonaparte v. Camden and Amboy Rail Road Co. (1 Baldwin, 205).
   *The opinion of the Court was delivered by

Rogers, J.

The fifteenth section of the act of the 23d March, 1829, which gives authority to the president and managers of the rail-road company, to enter and occupy the land on which the rail-road may be located, provides, among other matters, that upon confirmation and final judgment on the report, and inquisition made in pursuance of the act, upon paying into Court the sum awarded, where the owner shall refuse to receive it, the company shall become seized of the same estate in the land which the owner held. After confirmation of the report, by the Court of Common Pleas, and final judgment thereon, the company (the owner having refused to accept it,) paid the sum awarded by the inquest into Court; whereupon they became seized of the same estate in the land which the owner held. The entry being lawful, the Court properly instructed the jury, that if any resistance was made, they had a right to use force; and further, that even if, after they had entered, they misdemeaned themselves, or exceeded their authority, they were not trespassers ; the doctrine of trespassers ah,initio not applying where the entry is made on land which is your own. Where the directions of the act are pursued, the company is acquitted from all responsibility for any injury which may be done. The legislature, while they guard the rights of the owner of the land through which the road passes, have thought proper to avoid, as far as practicable, any vexatious or unnecessary delay — a consideration of great importance in a work of this description, and which they would seem to have had specially in view in the charter granted to the company: and this, if not conceded, has been but faintly denied. The plaintiff in error contends, that, as the proceedings were removed by certiorari, of which the company had notice before entry, the action of trespass will well lie. On this exception, they mainly depend. We have no doubt of the power to remove the proceedings on certiorari: for the jurisdiction of the Supreme Court (as has been repeatedly ruled,) to review the proceedings of all inferior tribunals, cannot be taken away, except by express words, or necessary implication. Although this power must be conceded, still the question recurs, was the certiorari a supersedeas ? In one sense, it certainly was; for after a certiorari, all subsequent proceedings by the Court below, on the record, are erroneous. If any thing had remained for the Court of Common Pleas to do, it would be error in them to proceed, after the allowance of the act; but after the payment of the money into Court, no further action by them was required. It becomes, therefore, a question of legislative intention; and from the act, and the evident design of its framers, it is clean', that in the intermediate time between the payment of the money into Court, and the allowance of the writ, the company were seized of the land, and of course had a right of entry. The question then comes to this; will *the allowance of tbe writ divest the seisin, and reinvest the title of/ the former owner? We are of opinion, that nothing/can have that effect, short of a reversal of the proceedings. Wlnether trespass will lie, in that event, it is needless to determine, as we are clearly of the opinion, that the action cannot/óe sustained, while the- certiorari is pending and undetermined. It is said, that if the judgment of the Court of Common Pleas is reversed, the plaintiff may be without remedy. If this were so, as it is a case of improvident legislation, within the constitutional limits of the legislature, we cannot control it, as that would be an assumption of legislative authority. But the plaintiff is not without redress; for granting that trespass will not lie, after reversal, yet there is nothing to prevent a new application to the Court for an inquest. The inquest would be able to do justice to the owner, by giving him the value of the land, at the time of the entry, with interest until the finding of the second inquest.

Judgment affirmed.

Cited by Counsel, 8 Watts & Sergeant, 461; 11 Harris, 36.  