Bridgeport & New Cumberland Turnpike Road

171 Pa. 312 | Pa. | 1895

Opinion by

Me. Justice McCollum,

If the order of February 21, 1893, can be considered as embracing a direction to the supervisors to close the New Cumberland & Bridgeport Turnpike Road against the public before the construction and actual opening for public use of the road laid out to supply its place, it is to that extent a nullity. Neither the Philadelphia, Harrisburg & Pittsburg Railroad Compan}" nor its lessee acquired by this order any right to obstruct the old turnpike road or standing to contest the order of June 12, 1894, recognizing and preserving the rights of the public in it until the completion of the road designed as a substitute for it Sec. 24.o£ the act of June 18, 1836, provides that “ whenever the whole or any part of a road shall be changed or supplied the same shall not be shut up or stopped until the road laid out to supply the place thereof shall be actually opened and made.” An order in plain violation of the statute under which proceedings for the vacation of highways-are instituted and conducted is void,.and a subsequent order setting it aside furnishes no just ground for litigation or complaint. In this case the record shows that the order of February 21, 1893, was made under a •misapprehension by the court of the facts respecting the construction and opening of the road laid out from New Cumberland to Riverton. The power of the court to vacate an order so made is conceded. It is alleged that the road laid from New Cumberland to Riverton was designed to take the place of the turnpike road and that the former has not been “actually opened and made.” There is no denial of this allegation. The railroad company in its answer to the petition on which the rule to show cause was granted simply, denied that it had obstructed any portion of the turnpike road and asked that, the petition be dismissed. There is no claim that the company acquired any right by the order of February 21, or lost any by the order of June 12. We have then a ease in which a corporation unaffected by either order asks us to reverse the last one on the ground of alleged irregularities in making -it. Regarding as we do the order of June 12 as designed to prevent the closing of so much of the turnpike road as is required for public use until the completion and opening of the road laid to take its place, we cannot do so. We cannot say that the order is vitiated by the exception in it of that portion of the turnpike which crosses the tracks of the Northern Central Railway at grade and is already supplied by the bridge and its approaches constructed by said company in pursuance of an arrangement between it and the township authorities. Specification overruled and

Order affirmed.