Road in Chartiers Township

34 Pa. 413

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1859
• Status: Published

Opinion

The opinion of the court was delivered by

Lowrie, C. J.

This certiorari brings up only one record, being No. 14, of March Sessions 1858. A copy of a previous one is put on our paper-books; but we have nothing to do with it. It does not properly appeal’, therefore, that any of these viewers were on a former view of the same matter; and if it did, we might not regard them as incompetent, if this view be substantially but a recommitment of the case, because of some formal error in the first proceeding. We generally prefer leaving questions of partiality of viewers to the judgment of the court below.

We do not see how a party who has been allowed damages, can complain that it does not appear that the property-holders were asked by the viewers to release. But we have already said that we shall presume that this duty was performed: 8 Casey 287.

The real objection of these compláinants is, that the damages allowed them are insufficient, and the court refers them to another view for that, and confirmed the view. But we do not think that they were then .entitled to a view, or review, on account of the damages. In the ease of Durnall’s Road, 8 Casey 383, under a similar law, we decided that a review was the proper remedy for such a complaint. An exception does not reach the case, for, to sustain it, would set aside the road, which would be giving it too much effect; or would set aside the part of it which is in favour of the exceptants, and that is not what they want. They want more damages, and ought, therefore, to have asked for a review at the second term. The remark of the court that they were willing to grant another view for the damages, goes for nothing, and is improperly on the record.

Proceedings affirmed, and record remitted.