The opinion of the court was delivered,
by Agnew, J.In the case of The Pennsylvania Railroad Company v. Lutheran Congregation, 3 P. F. Smith 445, we have said that under the charter of this company, the Court of Common Pleas holds a supervisory power over the proceedings before the viewers, to see that they are regular and not contrary to law; and no appeal being given to this court, the judgment of the Common Pleas is final and conclusive, except for irregularities manifest upon the face of the record. We cannot therefore read the depositions and documentary evidence which constitute no part of the record, or examine into the merits. • In setting aside the report, the court below did not confine itself to any particular exception, though it would seem from the opinion of the judge, he laid great stress on *72tbe fact that the railroad company held a part of the ground under a lease.
But the record proper does not show that he set aside the report solely on the second exception. In legal intendment he may have set it aside on the ground of excessive damages, and indeed the opinion, if referred to, shows that he thought the viewers erred as to the damages.
The court having ordered a new view, the petitioners are not without remedy, and we cannot say that there is error apparent in the record proper. But as this case will go before another jury of view, it is proper that we should state our opinion on the question chiefly discussed before üs, as to the effect of the lease.
Owing to the defective legislation, for such we must call it, in relation of the mode of proceeding to exercise the state’s power of eminent domain by this company, it is difficult to determine the rights of the parties. The law makes no provision for a record of the act of the company in taking property, either by filing a draft, or an instrument of appropriation defining with precision the extent, boundaries, location and purpose of the property taken. The entry is in pais, and the surveys appear to he in the keeping of the company only. In the present case, the only draft is one presented to the viewers and returned with their report, and it exhibits with no precision the defined boundaries of the land taken. The viewers say the draft was furnished by the company. From this draft it would seem to be impossible to determine whether the company intended to exercise the power of the state in taking the whole number of feet (three hundred and ninety-six), or only that part not held under lease, to wit, ninety-six feet; yet this is essential to be known. The question of damages depends on the taking, that is the say the appropriation of the property to railroad purposes. This is a very different thing from a mere use of the property under a lease of years. There is nothing to prevent a railroad company having title to the use and occupancy of land under a lease, from laying down rails upon it and using them as a track for their engines, cars, &c., if not forbidden in the lease, or if waste is not committed by such acts as evidently injure and destroy the soil. But an appropriation of the property for the uses of a railroad under the power granted to take it for such a purpose, is essentially different from such a mere use during the term of a lease. In the latter case no title is acquired to the easement, and the rails must come up before the expiration of the lease; but in the former a perpetual easement or right of way takes place. In one case, the rent is all the compensation which the landlord can demand; in the other, the owner is entitled to compensation or security for it before his right of property can be invaded. It was all important therefore that the court should know by the act of the company itself, whether it *73was proceeding to condemn the whole land under its power of appropriation, or was merely exercising its rights as a tenant upon the leased part. As to the latter, the company proceeded at its own peril, subject to the terms of its lease, and it was not the subject of an assessment of damages. Being bound to remove the rails before the termination of the lease, the Limitation Act of April 1866, Pamph. L. 106, has no application to the case. But if this company had proceeded to appropriate the whole three hundred and ninety-six feet under its charter, the owners would clearly be entitled to damages, the only effect of the lease being to reduce the damages in proportion to the tenant’s estate in the premises, for which the landlord is compensated in the rent.
This statement of the relative rights of the parties, shows the necessity of' some instrument or document to be filed of record to evidence the specific act of appropriation by the company. This is necessary as a guide to the viewers. Their duty is to determine a question of damages, and not to decide disputes of title between the applicants and the company. Hence a claim of title, whether under a lease or otherwise on part of the company, should be referred to the court, and not to the viewers. In the absence of legislation, we see no way in which a court can reach questions of this kind, and prevent them from being used before the viewers improperly or decided by them under the .veil of a general report, unless by prescribing rules, or making an order under the general powers conferred by law on the court, which will bring the act of the company evidencing its appropriation into the record, and enable the court to send before the viewers the true and only questions they ought to decide. The court having ordered a new view, has it in its power to make the necessary order to enable the subject of appropriation to be definitely defined, and to submit the question of damages properly to the next board of viewers.
The order of the court below in setting aside the report, and directing another view, is therefore affirmed, and a prooedendo awarded.