
    PALETHORP VS. PHILADELPHIA AND TRENTON RAILROAD CO.
    A railroad company may have viewers to assess land damages appointed, even though its ¿gent agreed verbally with the land owner as to the amount of damages to be paid.
    Certiorari to Common Pleas of Bucks County. No. 260 January Term, 1865.
    The record showed that a petition of A. H. Thomas, Treasurer of the Railroad Co. (accompanied by proof of tender' of bond and service of notice) for the appointment of viewers to assess damages to the estate of John H. Palethorp caused by the construction of the railroad of the defendant corporation, was filed on September 18, 1864. On November 3, 1864, a rule was taken to show cause why the application for viewers should not be set aside on the ground that John Dorrance, the agent of the railroad company had on December 3,1863, agreed that the railroad company should pay at the rate of $300 an acre for the land taken, and put up certain fences, &c., and that the estate of John II. Palethorp was ready and willing to carry out said agreement and that the railroad company had entered into possession of the land in pursuance of said agreement. Depositions in proof of the foregoing allegations were taken and read in support of the rule. On January 17,1865, the Court discharged the rule, and on the same day appointed viewers, who subsequently made an award assessing damages at $429.03; which was confirmed by the Court. The Palethorp estate then took a writ of error complaining of the action of the Court in appointing viewer’s, and in afterwards confirming the report for an amount which was less than the sum agreed upon with Dorrance.
    
      Robert Palethorp, Esq., for plaintiff in error,
    argued that the record may be removed to the Supreme Court on certiorari; Schuler vs. Railroad Co., 3 Wharton 555. That the railroad was not entitled to have viewers appointed to assess damages after they had agreed upon the amount; as it is only when they cannot agree that viewers maj* be appointed ; Act February 19, 1849, Sect. 11 P. L. 84; Act 28 April, 1864, P. Laws 651.
    G. M. Dorrance, Esq., contra.
    
   The Supreme Court affirmed the judgment of the Common Pleas on February 5 1866, in the following opinion, per :

Strong, J.

All the assignments of error are to the decisions of the Court below upon matters • of fact which are not reviewable here. Whether the parties had entered into an agreement to settle the damages caused by the construction of the railroad through the land before the petition for the appointment of viewers was filed was a question of fact to be determined by evidence. This certiorari brings up only matters of law. We can look at ' nothing more than the regularity or irregularity of the proceedings as they appear upon the record. That on their face the proceedings in the Court below are regular is not questioned.- It is said, however, such proceedings ought not to have been allowed because the company had agreed with the owner of the lands. The Court below decided no such agreement had been made and if we could review that" decision, we should probably come to the same conclusion with no other evidence than that before us. If it be conceded that the parties to the alleged arrangement were competent to contract, the one to sell and the other to buy the land, a very liberal concession, there is no evidence of any thing more than a parol contract of sale unexecuted. And even that is proved by .an incompetent witness. Surely a parol contract of sale is no bar to an assessment of damages under the Act of Assembly.-

The judgment of the Court of Common Pleas is affirmed at the costs of the plaintiff in error.  