Opinion by
Orlady, J.,
The history of the Chambersburg and Bedford Turnpike Road Company began in an act of assembly of February 24, 1806,4 Smith’s Laws, p. 279, by which the governor of the commonwealth was authorized to incorporate a company for making an artificial road from the bank of the river Susquehanna opposite to the borough of Harrisburg to Pittsburg, which act was supplemented by One of March 9, 1814, 6 Smith’s Laws, p. 120, by which the incorporation of five companies was provided for, and the section, of which the turnpike in controversy is a part, was styled the Chambersburg and Bedford turnpike. By the Act of March 26, 1821, 7 Smith’s Laws, p. 393, entitled “An act for the improvement of the state,” the governor was authorized to subscribe to this and other turnpike road companies, and by a schedule accompanying the act it appears that the construction of this section, fifty-five miles in length, represents original subsciptions of $113,850 by the state, and $167,500 by individuals. The road was completed under these proceedings and has been in continuous use ever since under its corporate name.
The present proceeding was begun on October 8,1900, under authoiity of the Act of June 2, 1887, P. L. 306, by a petition, signed by 228 taxpayers of Bedford county, setting forth that the said turnpike, from the intersection of Juliana and Pitt streets near the Grand Central Hotel in the borough of Bedford eastward to the Fulton county line, .... a distance of nineteen miles, was in bad condition, and that its bridges were of a dangerous character, and that for other reasons, it was for the best interests of the people of Bedford county that the portion of the turnpike described should become a public road, free from tolls and tollgates, and the signers thereof prayed the court to appoint a jury of view, etc., to view and condemn said turnpike road, between the points named, and to assess the damages to' which the owner or owners of said road might be entitled. The proceeding being in accordance with the provisions of the act, [179] the court appointed a jury of view of five reputable citizens, a master and a stenographer, who acted and made a report to the court, which, after argument on exceptions filed thereto, was confirmed on July 17,1901, and from that decree this appeal was taken.
The testimony taken is printed on 320 pages of appellant’s paper-book, and the first thirty assignments of error are filed to the action of the master in admitting evidence offered by the petitioners. By the 2d section of the act, the master is to be a person learned in the law, “ who shall preside at all the meetings of the viewers and to have power to determine the admissibility of evidence, to issue writs of subpoena, to compel the attendance of witnesses and the production of papers, and instruct the viewers upon matters of law, to which exceptions may be taken for the purpose of review.” The exception to be taken as above noted does not refer to the admissibility of evidence adduced before the jury. The tribunal created by this statute and called a jury of view is a different one from a trial jury in the courts of law. The juror’s oath prescribed by the act-of 1887 is “to perform his duties with fidelity, impartiality, and according to the best of his judgment” which is materially different from that directed by the act of April 13, 1834, regulating trial by jury in the civil and criminal courts. The jury under the act of 1887 is not confined to the evidence adduced by witnesses. By the proviso to the 3d section, “ Such jury of view may report in favor of the petitioners, if such jury of view decree it for the best interests of the people of their county, without hearing any witnesses, if no request is made by any party to have witnesses examined.”
In the light of the authority given to the master under this statute, it is but reasonable to hold that it was intended to limit the exception to be taken for the purpose of review to the last duty imposed upon him, to wit: the instruction given by him to the viewers upon matters of law, and not to the admissibility of evidence, issuing of writs of subpoena or compelling attendance of witnesses and production of papers. This view is strengthened by the 8th section of the act providing for an appeal to the court of common pleas of the proper county from the assessment of damages, and for the framing of an issue, “ which shall be tried by a jury, according to th'e [180] course of the common law as regulated by existing statutes and the record thereof shall be remitted to the proper court of quarter sessions for further action upon the whole case,” which judgment so enterered is reviewable by the appellate courts upon writ of error as in other cases. To sustain the contention of appellants in this phase of the case would give two trials on questions of fact and result in expensive and vexatious litigation. We held in Factoryville Turnpike, 19 Pa. Superior Ct. 613, that “ this is a certiorari under the provisions of the 6th section of the act of 1887, and our concern here is simply with the regularity of the proceedings.” For this reason the first thirty assignments of error are overruled. The assignments from thirty-one to forty-six, inclusive, are founded upon exceptions taken to the instructions given to the viewers upon matters of law.
The measure of damages in a turnpike condemnation proceeding has been considered by this court in Bustleton & Somerton Turnpike Co., 16 Pa. Superior Ct. 400, in which case the recent decisions of the Supreme Court are reviewed and followed.
In that case we held that all that is taken from the company should be paid for, no more and no less, and all that is taken, not may, but must be, considered by the jury of viewers in determining the reasonable damages for which the county should pay in taking the property of the turnpike company for public use. It is clearly decided that the fair value of roadbed and the fair value of the franchises at the time of the condemnation are to be determined from the physical condition of the property, its substructure, superstructure, and approaches to bridges, together with the right or privilege of the company to collect tolls from travelers. The entire company rights of the turnpike company are taken, and it is the value of the property to the owner and not to the county taking it, that is to be determined: Montgomery County v. Schuylkill Bridge Co., 110 Pa. 54; Clarion Turnpike & Bridge Co. v. Clarion County, 172 Pa. 243; West Chester & Wilmington Plank Road Co. v. Chester County, 182 Pa. 40.
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Opinion by
Orlady, J.,
The history of the Chambersburg and Bedford Turnpike Road Company began in an act of assembly of February 24, 1806,4 Smith’s Laws, p. 279, by which the governor of the commonwealth was authorized to incorporate a company for making an artificial road from the bank of the river Susquehanna opposite to the borough of Harrisburg to Pittsburg, which act was supplemented by One of March 9, 1814, 6 Smith’s Laws, p. 120, by which the incorporation of five companies was provided for, and the section, of which the turnpike in controversy is a part, was styled the Chambersburg and Bedford turnpike. By the Act of March 26, 1821, 7 Smith’s Laws, p. 393, entitled “An act for the improvement of the state,” the governor was authorized to subscribe to this and other turnpike road companies, and by a schedule accompanying the act it appears that the construction of this section, fifty-five miles in length, represents original subsciptions of $113,850 by the state, and $167,500 by individuals. The road was completed under these proceedings and has been in continuous use ever since under its corporate name.
The present proceeding was begun on October 8,1900, under authoiity of the Act of June 2, 1887, P. L. 306, by a petition, signed by 228 taxpayers of Bedford county, setting forth that the said turnpike, from the intersection of Juliana and Pitt streets near the Grand Central Hotel in the borough of Bedford eastward to the Fulton county line, .... a distance of nineteen miles, was in bad condition, and that its bridges were of a dangerous character, and that for other reasons, it was for the best interests of the people of Bedford county that the portion of the turnpike described should become a public road, free from tolls and tollgates, and the signers thereof prayed the court to appoint a jury of view, etc., to view and condemn said turnpike road, between the points named, and to assess the damages to' which the owner or owners of said road might be entitled. The proceeding being in accordance with the provisions of the act, [179] the court appointed a jury of view of five reputable citizens, a master and a stenographer, who acted and made a report to the court, which, after argument on exceptions filed thereto, was confirmed on July 17,1901, and from that decree this appeal was taken.
The testimony taken is printed on 320 pages of appellant’s paper-book, and the first thirty assignments of error are filed to the action of the master in admitting evidence offered by the petitioners. By the 2d section of the act, the master is to be a person learned in the law, “ who shall preside at all the meetings of the viewers and to have power to determine the admissibility of evidence, to issue writs of subpoena, to compel the attendance of witnesses and the production of papers, and instruct the viewers upon matters of law, to which exceptions may be taken for the purpose of review.” The exception to be taken as above noted does not refer to the admissibility of evidence adduced before the jury. The tribunal created by this statute and called a jury of view is a different one from a trial jury in the courts of law. The juror’s oath prescribed by the act-of 1887 is “to perform his duties with fidelity, impartiality, and according to the best of his judgment” which is materially different from that directed by the act of April 13, 1834, regulating trial by jury in the civil and criminal courts. The jury under the act of 1887 is not confined to the evidence adduced by witnesses. By the proviso to the 3d section, “ Such jury of view may report in favor of the petitioners, if such jury of view decree it for the best interests of the people of their county, without hearing any witnesses, if no request is made by any party to have witnesses examined.”
In the light of the authority given to the master under this statute, it is but reasonable to hold that it was intended to limit the exception to be taken for the purpose of review to the last duty imposed upon him, to wit: the instruction given by him to the viewers upon matters of law, and not to the admissibility of evidence, issuing of writs of subpoena or compelling attendance of witnesses and production of papers. This view is strengthened by the 8th section of the act providing for an appeal to the court of common pleas of the proper county from the assessment of damages, and for the framing of an issue, “ which shall be tried by a jury, according to th'e [180] course of the common law as regulated by existing statutes and the record thereof shall be remitted to the proper court of quarter sessions for further action upon the whole case,” which judgment so enterered is reviewable by the appellate courts upon writ of error as in other cases. To sustain the contention of appellants in this phase of the case would give two trials on questions of fact and result in expensive and vexatious litigation. We held in Factoryville Turnpike, 19 Pa. Superior Ct. 613, that “ this is a certiorari under the provisions of the 6th section of the act of 1887, and our concern here is simply with the regularity of the proceedings.” For this reason the first thirty assignments of error are overruled. The assignments from thirty-one to forty-six, inclusive, are founded upon exceptions taken to the instructions given to the viewers upon matters of law.
The measure of damages in a turnpike condemnation proceeding has been considered by this court in Bustleton & Somerton Turnpike Co., 16 Pa. Superior Ct. 400, in which case the recent decisions of the Supreme Court are reviewed and followed.
In that case we held that all that is taken from the company should be paid for, no more and no less, and all that is taken, not may, but must be, considered by the jury of viewers in determining the reasonable damages for which the county should pay in taking the property of the turnpike company for public use. It is clearly decided that the fair value of roadbed and the fair value of the franchises at the time of the condemnation are to be determined from the physical condition of the property, its substructure, superstructure, and approaches to bridges, together with the right or privilege of the company to collect tolls from travelers. The entire company rights of the turnpike company are taken, and it is the value of the property to the owner and not to the county taking it, that is to be determined: Montgomery County v. Schuylkill Bridge Co., 110 Pa. 54; Clarion Turnpike & Bridge Co. v. Clarion County, 172 Pa. 243; West Chester & Wilmington Plank Road Co. v. Chester County, 182 Pa. 40.
The physical, tangible property and the right to collect tolls from the public on the part of the turnpike company exclusive of this, section- of nineteen miles is not affected by this proceed[181] ing except as its value is' depreciated by this condemnation. The part in Fulton county must necessarily be considered as part of a public thoroughfare and its relation to the part condemned as an element of profit or loss. The character of the travel as well as the structural value of the property, use of new roads, change in public and private enterprises affecting travel on this turnpike were properly before the jury for consideration. The affairs of the corporation were managed with reference to the entire length of the road. The value of its stock, its annual gross and net earnings, expenses, and the structural condition of the road were shown by evidence adduced by the company and the petitioners.. The master rightly held that the original cost of construction is not material except as to the bearing it may have on the question of value. “ It is a question of value. What is the road worth, not what did it cost?” The jury should take into consideration the road as they found it, its roadbed, culverts and bridges, together with the evidence relative thereto, as these are elements to be considered bj7 the jury in ascertaining the true value of the road. This instruction followed the rule laid down in Mifflin Bridge Co. v. Juniata County, 144 Pa. 371, and West Chester, etc., Plank Road Co. v. Chester County, 182 Pa. 40, 48. The effort on the one side was to make the property a very valuable one, on the other to show that it was of but little value. This jury decided that it was for the best interests of the people of Bedford county that the designated part should be made free from tolls and tollgates, and assessed the damages sustained by the company at $5,087.50. The character and productiveness of the whole road and of the part affected by these proceedings ' were shown in order to assist the jury in determining the value of the part condemned as compared with the whole road. It was not conclusive proof, but was for the consideration of the jury along with the other evidence in the case, and as submitted by the master was not in conflict with Perkiomen, etc., Turnpike Road v. Berks County, 196 Pa. 21.
The returns made by the turnpike company to the auditor general for ten years preceding this condemnation were competent evidence to show the value placed by the company upon its own stock — a valuation made under oath by its own officers: Mifflin Bridge Company v. Juniata County, 144 Pa. 375. The [182] property'and the franchises are represented by its stock and the market value of. the stock may be said to represent the market value of the property taken, as nearly as it can be ascertained : Montgomery County v. Schuylkill Bridge Co., 110 Pa. 54 ; Allentown, etc., Turnpike Co. v. Lehigh Valley Traction Co., 174 Pa. 275. It was clearly shown by the evidence that- the tollhouses were not within the right of way secured to it by the state, and this condemnation does not affect the title of the company to these properties. They are not.only outside of the strip of ground, fifty feet wide, on which the road was built, but title to them was acquired by the company for its convenience by independent purchase. The depreciation in value of these properties by reason of the condemnation was properly submitted to the jury and passed upon by the learned trial judge below in overruling the exceptions filed to the report of the jury of view. “ But these properties were not procured by the aid of the state as incident to the franchises conferred on the company. They were obtained by means altogether independent of any governmental authority, and the title to them, as related to the turnpike, is no more subject in this case, to the sovereign power of the commonwealth than that of any farm lying along its way. In making these private purchases the company was not limited as to the extent of its holdings. If it could hold one and a half acres in a body, we see no legal reason why it might not hold ten or twenty. In either case it must all lie outside of the roadway and the corporate privileges bestowed by the commonwealth. As alreadjr shown, the tollhouses could have been built within the fifty féet dedicated to the public use, but on the score of mere convenience and comfort, and not from necessity, lots of larger dimensions were preferred outside. The makers of the act of 1887 certainly never contemplated that it should affect anything but the mere highway, and it only in order that its use might be transferred from the corporation to the public. Every permanent structure standing upon the road would, of course, pass with it. This proceeding is a mere withdrawal of the privileges derived from the state and operates only on the company’s franchises and the property acquired thereunder through the state’s authority. But if we would assume, as the company does, that the lots in question might be taken under the act of [183]*1831887, what would then become of them ? The legislature cannot authorize the taking of private property, or public property for that matter, for any other than a public use: Waddell’s Appeal, 84 Pa. 90. What public use would be made of these lots and dwellings ? And where would the title rest ? The county pays the damages under the act of assembly. Could it take title to and hold them ? The turnpike itself passes, by the 11th section of the statute, to the townships and boroughs in which it lies : Pittsburgh, etc., R. R. Co. v. Commonwealth, 104 Pa. 583-587.”
Upon consideration of the whole record the assignments of error are overruled and the decree of the court in confirming the report of the jury of view is affirmed.