23 Pa. 302 | Pa. | 1854
The opinion of the Court was delivered by
We shall be sure to hit all the points in the appellant’s argument by noticing seriatim and in their order the several errors assigned.
1. The draft accompanying the report of the viewers contains the names of the owners through whose lands the road passes, and if this be not a sufficient “ noting briefly of the improvements,” the remedy was to apply to the Quarter Sessions to recommit the report and draft to the viewers for the purpose of having it perfected in this regard. In the case of the New Hanover Road, 6 Harris 224, this was said to be the universal and proper practice, and had not the Court conformed to it on demand or exception filed, that might have been assigned for error'; but without either an exception to the report, or a request of recommitment, there is no ground for the first error.
2. There is nothing in this assignment except a clerical error, amendable at any time, and wholly unimportant amended or not, for the law required but three viewers; but three were appointed, and they all viewed and reported.
3. The viewers fixed the width of the road at twenty-five feet in their report; and though it is usual to order roads to be laid out somewhat narrower where digging and bridging are required than in other places, yet where the general width is not more than twenty-five feet, a distinction is not necessary, for this is narrow enough even for places where digging and bridging are required.
4. The objection that there was no confirmation nisi at the Term to which the report of the viewers was filed, is answered by the fact that a review was awarded at that Term. That suspended any judgment on the report. The object of a nisi approval at the first Term is to give parties in interest an opportunity to apply for a review, and when at the same Term they have applied for and obtained the review, it is of no importance that the qualified approval was not entered of record. Where an- Act of Assembly authorizes the viewers to fix the width, as in Perry county, and they have done so in their report, no endorsement by the Court in regard to width is necessary.
5 and 6. These errors are answered by the record, which shows that the Court confirmed the report of the viewers, which they had a right to do, and which it often becomes expedient to do after review and re-review. That was in effect an order that the road should be opened according to the report of the viewers. But the objection that the order recites the width of the road as fixed by the Court, is too sharp. It was fixed by the viewers as their report
7. The Court may have been mistaken in supposing that the viewers and re-reviewers had laid out precisely the same ground; or the thing meant may have been that the two sets had adopted very nearly and substantially the same ground, which is the ascertained fact. But what if the Court were under a misapprehension as to the identity of the routes ? This would not invalidate their decree in establishing that first laid out. The Court had no power to alter either report so as to make the two routes coincide absolutely. They were to confirm one or the other or reject both, and they proceeded regularly, and we are bound to presume on adequate reason, in confirming the first report.
None of the errors assigned having' been sustained, the decree of the Court is affirmed.