Gwinner v. Lehigh & Delaware Gap Railroad

1. The Act of April 27th 1855, providing for appeals from the assessment of railroad damages, is repealed by the Act of April 9th 1856, on the same subject. 2. Appeals from such assessments must be entered within 30 days from filing, not from the confirmation of the report. 3. Acts which, although in pari materid,' grant a right conditioned on different things, are inconsistent; and the inconsistency operates as a repeal.

Error to the Court of Common Pleas of Northampton county. On the petition of William Gwinner, the Court of Common Pleas, on the 2d October 1865, appointed viewers to assess the damages done to his real estate by the construction over it of the road of the Lehigh and Delaware Water Gap Railroad Company. On the 28th of November 1865 the report of the viewers, assessing the petitioner’s damages at $3120, was filed and confirmed nisi, to become absolute and judgment to be entered on it unless exceptions be filed in twenty days. On the 15th of December 1865 the time for filing exceptions was enlarged until the first day of the next term. “ 1866. January 16th being the first day of the term, on motion of plaintiff’s counsel the report of viewers is confirmed absolutely and judgment entered by the court thereon for the sum of $3120 in favor of the plaintiff, with costs/’' January 23d, the plaintiff appealéd. A rule by the defendant to strike off the appeal was made absolute December 21st 1860, Maynard, P. J., delivering the opinion of the court. The plaintiff took a writ of error and assigned for error the dismissing his appeal. cited Acts of February 19th 1849, § 11, Pamph. L. 84; 27th April 1855, Pamph. L. 365, § 1, Purd. 839, pi. 13, 14; April 9th 1856, § 3, Purd. 840, pi. 16, Pamph. L. 289; Robinson v. Bulkly, 5 Rawle 227; 1 Bl. Com. 60, note 8; 1 Kent Com. 463 ; Street v. Commonwealth, 6 W. & S. 209; Bank v. Commonwealth, 10 Barr 447-9; Brown v. Commissioners, 9 Harris 37; Goldson v. Buck, 15 East 377; Horner’s Lateral Railroad, 1 Wright 337 ; Neff’s Appeal, 9 Harris 247; Dwarris on Statutes 639, 674-5, 702-3; Rich v. Keyser, 4 P. F. Smith 86; Uwchlan Road, 6 Casey 156; Jones v. Badger, 5 Binn. 462; Hess’s Appeal, 1 Watts 257; Black’s Case, 6 Harris 434; Royer’s Appeal, 1 Pa. R. 227 ; Stulzfoos’s Appeal, 3 Pa. R. 265 ; Gibson’s Mill Road, 1 Wright 255; Stevens’s Appeal, 2 Id. 9; Dash v. Van Kleeek, 7 Johns. 497; Dalbury v. Foster, Carth. 396; Johnston’s Estate, 9 Casey 511; 1 Saunders’s PL & Ev. 40-1. were stopped by the court. In their paper-book they referred to the Acts cited for the plaintiff in error, and also to Dwarris on Stat. 673; Rex v. Cator, 4 Burr. 2026; Bartlett v. King, 12 Mass. 545; Commonwealth v. Cromley, 1 Ashm. 179; Foster’s Case, Coke’s R. 681; King v. Davis, Leach’s Cas. 228; 4 Black. Com. 89; Pease v. Whitney, 5 Mass. 380; Dash v. Van Kleeek, 7' Johns. 497; Livingston v. Harris, 11 Wend. 329; Dexter & Limerick Plank Road Co. v. Allen, 16 Barb. 15; Johnston’s Estate, 9 Casey 511; Street v. Commonwealth, 6 W. & S. 212; Brown v. Commissioners, 9 Harris 37; Anderson’s Appeal, 4 Yeates 35; Ranck v. Becker, 12 S. & R. 412; Wills v. Kane, 2 Grant 60; Baily v. Baily, 8 Wright 274; Weaver’s Road, 9 Id. 405.