The opinion of the court was delivered, March 26th 1866, by
Agnew, J.It is very true, as has been well argued by the counsel of the defendant in error, that it has often been decided this court will not review or re-examine the merits of an awrard, inquisition, appraisement or similar finding, and the remedy for-errors committed in these cases is by appeal only, if it be given by the law under which the proceeding takes place. But the power of the court extends to the examination and correction of all and all manner of errors of the justices, magistrates and courts of this Commonwealth in the process, proceedings, judgments and decrees, as Avell in criminal as in civil pleas or proceedings, as the law doth or shall direct: Act 16th June 1836, § 1. If, therefore, an error be found in the record of any proceeding in a lower court, our power to correct it is clear, and is not limited by the absence of a right of appeal. It does not touch the merits of the controversy, but the legality of the proceeding. In this case the error is apparent in the record, if the cause set forth in the petition for damages is not the subject of compensation.
The claim, as set forth in the petition, is very clearly and distinctly stated to he founded upon injury caused by backing, the water of the Lehigh upon the lands, water-power and machinery of the petitioner, doing him great injury and damage. The reflux of the water caused by the erection of the dam is but a consequence of that act, and the damages are termed consequential in contradistinction to those which arise out of a direct entry upon and appropriation of land or materials. The distinction between direct and consequential injuries grows out of the constitutional duty to make compensation upon taking private property for public use, and only becomes material when the Commonwealth has omitted to make provision for the indirect injuries in consequence of her acts, compensation for the latter being of grace, and not of right. If there was no authority, therefore, to award damages for the subject-matter set forth in the petition, the error appears in the record, and we must correct it.
The liability of the Delaware Division Canal Company, if any, depends, first, on the proper interpretation of the 7th section of the Act of 21st of June 1858 (P. L. 419), for the sale of the canals of the state to the Sunbury and Erie Railroad Company ; and, secondly, upon the antecedent legislation of the Commonwealth in relation to damages upon this division of the canals.
The strength of the argument, to deduce a liability from the 7th section of the Act of 1858, fastens itself upon the generality of the words, “ any and all claims for damages or other demands *123against the Commonwealth.” Unquestionably the legislature intended every claim to be preferred and considered. Its object was to shut out no one from a hearing. But the operative words which fix the character of the claim are, “ if established.” It is only the established claims the section orders the purchaser to pay, and as an evidence of the sense in which these words are used, it further declares, “ but in any case the purchaser shall have notice and an opportunity to be heard against the allowance of such demands.” What is meant by establishing a claim or demand ? ¡.Certainly it is to show the right to have it allowed. The right, therefore, must be shown, and this right depends on the duty to pay.
The obligation is the correlative of the right, and both must exist in order to establish the demand. If the Commonwealth was under no duty to pay, it is clear the claimant had no right to have his damages allowed. It is only by striking out the words “ if established” the section can be made to require payment of all claims of every kind. The 7th section is not to be read alone or apart from the main intent of the whole act. The 5th section declares, “ That the said company, their successors and assigns, shall hold, possess, use and enjoy the said property free and discharged from all encumbrances, except as provided in this act.”’ The term encumbrances, and the intent that the purchase should be enjoyed free of aught else, tend strongly to determine the character of the demands which were first to be established and then allowed.
There were therefore encumbrances — obligations which the Commonwealth owed or was bound for, and which she therefore required the purchaser to pay. Aside from the language of these sections, the leading design of the law sheds light on the particular provision. It is not a grant of privileges imposing duties as their consideration, but. an offer of sale with terms to invite acceptance. It was not the interest of the Commonwealth, and therefore not her motive, to impose burdens which must repel. Indefiniteness in the terms and uncertainty in the encumbrances would tend to defeat her purpose. If we interpret the provision to mean any claim which referees might think it proper to allow, the burden is indefinite, and such as a purchaser would decline. If it mean a new class of liabilities undefined in the law, the uncertainty will create distrust. This division of the public works having existed almost a generation without a thought by the Commonwealth that her justice demanded a recognition of these supposed equities, there was no reason she should adopt them to the prejudice of her contemplated sale. When she said, therefore, that the purchaser of her canals should have title free of all encumbrances except those imposed in the act, and declared that those claims only should be allowed which should be estab*124lished, we must conclude she intended only such as were existing obligations.
We are next brought to consider what injuries to private property were the subject of compensation in 1829-30, when the dam ■was erected, and in 1840-41, when it was rebuilt and heightened. Under the Act of 9th April 1827 (P. L. 192), this injury, had it then existed, would have been compensated as “ interfering with the petitioner’s right of property.” But the law confined its operations to the completion of the work, or within one year thereafter, and what is decisive is that the injury averred in the petition is the consequence of raising the dam in 1840-41, and not of the original structure. The legislature, by the Act of 6th April 1830 (P. L. 218), changed the law as to damages, conferring upon the canal commissioners the power to adjust all claims, with a right to appeal to appraisers if the claimant be unwilling to accept the offer of the commissioners, and confining the subject of damages to “ cases where injury has been or may be done to private property by reason of the Pennsylvania Canal or Railroad passing through the same, or by taking of any materials on said canal or railroad.”
It is argued this law did not extend to the Delaware Division of the Pennsylvania Canal, but the act on its face shows that it was not confined to the “ main line,” and as the name of this and other divisions informs us, we know that the Pennsylvania Canal was composed of many divisions. It is unnecessary, however, to resort to argument, as the legislature in 1832, following up the interpretation and acts of the commissioners, made the Act of 1830 applicable to the Delaware Division. The resolution of 10th April 1832 (P. L. 637), after reciting the appraisement of damages upon this division in September 1831, under the Act of 6th April 1830, and the death of one of the appraisers before the record was completed, made valid the report signed by two of the appraisers instead of three, and directed payment accordingly. This was followed by the resolution of 5th May 1832 (P. L. 642), extending the provisions of the former resolutions to every division of the canal and the railroad. With these acts in our view, it cannot be denied that the Act of 1830 and its supplements were the rule for the assessment of damages, and continued to be in 1840-41. The legislation then existing did not embrace a case of consequential injury. This seems to have been the view of the petitioners themselves, as we find them uniting in their petition to the canal commissioners in 1842, and after its refusal by the board in the same year they suffered the matter to drop. Thus it rested until 1856, when an attempt was made through a very influential gentleman to enlist the board in favour of compensation. The subject was under consideration about a year, and a report made against it by a competent engineer. The petitioners *125manifestly hoped to obtain a favourable consideration by the canal board, whose recommendation doubtless would have secured payment by the legislature.
That the flooding of land by reflow from a dam built on the property of another is a consequential injury ; and the rule that such an injury cannot be compensated without legislative provision, have been established in numerous decisions: Monogahela Navigation Co. v. Coons, 6 W. & S. 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Monongahela Navigation Co. v. Coons, 6 Barr 379; Philadelphia and Trenton Railroad Co., 6 Whart. 25; Henry v. Pittsburgh and Allegheny Bridge Co., 8 W. & S. 85; District of City of Pittsburgh, 2 Id. 320; Watson v. Pittsburgh and Connellsville Railroad Co., 1 Wright 469; McKeen v. Delaware Division Canal Co., 13 Wright 519.
As to the cases referred to by defendant in error, all may be disposed of by the single observation that they admit the principle just stated, and rest upon legislation which comprehended the injury; and that compensation for indirect injuries may be given of grace, no one disputes.
We are of opinion that the court below ought not to have allowed these claims; and the error appearing in the record, the judgment of confirmation must be reversed and the proceedings set aside. The same judgment to be entered in all the cases.