Bristol Township Road, 49 Pa. Super. 549

49 Pa. Super. 549 | Pa. Super. Ct. | 1912

Opinion by

Oelady, J.,

The foundation of this proceeding is the petition for the appointment of viewers to lay out a public road, to begin and end at clearly defined points, and “if they see occasion to lay out the same, to inquire of and vacate a public road now opened from the Frankford and Bristol Turnpike road, at a point opposite the cemetery, to the terminus of the Lower State road, on the line of the proposed road, in the township of Bristol aforesaid, which said last mentioned road will by reason of the laying out of the proposed road become useless, and make report,” etc. If this petition is defective, and is not cured by the report of the viewers, all the subsequent proceedings must fall with it: Dunbar Township Road, 12 Pa. Superior Ct. 491.

It is conceded that the petition is copied bodily from Smith’s Book of Forms, which on account of the eminence of the compiler, as a state reporter, caused it to be adopted in general practice for more than half a century and accepted by old lawyers as a well-recognized standard of worthiness.

Combining in one petition a prayer to open a road, and vacate another that may be thus rendered useless, inconvenient or burdensome, has the sanction of practice in many parts of the state, and the approval of the Supreme Court. If the statutory requirements relating to opening and vacating roads, are observed in other particulars, we see no good reason for holding that this practice of itself invalidates the proceeding. The authority to lay out and alter a road, is an authority to substitute a new road for an old one, and whenever this is done, so far as the old is supplied by the new one, it should be vacated. The principles involved in proceedings under the twentieth section of the Act of June 13, 1836, P. L. 551, apply with equal reason to those under the eighteenth and twenty-third sections. They are correlative parts of a system. The requirement of the eighteenth section that the road to be vacated shall be useless, inconvenient or burdensome, is in the disjunctive, and it is not necessary that all three elements should be present to justify a vacation. If any one of the three conditions is found to exist to the satisfaction of the court, a sufficient reason in this regard is established.

The twenty-third section requires that the petition to vacate “shall set forth in a clear and distinct manner the situation and other circumstances of such road.” The purpose of this specification is to put the court in possession of facts from which it can be determined, whether there is sufficient reason for the proposed vacation. The petition in this case, when taken with the report of the reviews, and the draft which is properly a part of it, defines the terminal points with sufficient precision, so as to fix the ones in the road reported to be opened, and the one to be vacated, as being identical with the ones proposed. There could not be any doubt in regard to the location on the ground of an open and existing public road, and the draft exhibits beyond all controversy, in its courses and distances, the precise terminal points for each road as mentioned in the petition, and that the road to be vacated has a course of N. 16°, W, and is 646 feet in length between the beginning and ending stations, and this furnished all the certainty that is required. In an ordinary road proceeding in the quarter sessions, we cannot require that technical accuracy which must be observed in criminal proceedings in the same court: South Abington Township Road, 109 Pa. 118. The practice and decisions in the local courts of the commonwealth are not consistent in this respect. It was formerly held that the omission to state the facts supporting the allegation that the road to be vacated was useless, inconvenient and burdensome, was a fatal defect, Ross Township Road, 36 Pa. 87, but later decisions have held that the mere allegation that it was useless, etc., was sufficient to warrant the appointment of viewers: West Donegal Township Road, 21 Pa. Superior Ct. 620; Keller’s Appeal, 5 Pa. Superior Ct. 222; Manheim Township Road, 12 Pa. Superior Ct. 279. The additional facts and circumstances may be supplied by the draft and report.

It is urged that the report of viewers is defective in not noting the improvements along the line of the new road. The report states: “There are no improvements along the line to be laid out.” The draft shows that this proposed road passes over the land of Mrs. Cadwalader, Mrs. D’Olier, William Shaffer and the railroad company. The jurors find that Mrs. Cadwalader suffers damages and award her the sum of $650, and that the other landowners sign and attach to the report a release from all damages to their property.

In O’Hara Township Road, 152 Pa. 319, it is held, that a railroad on the ground is not such an improvement as to other landowners as requires mention in the report, and in Palmer Township Road, 109 Pa. 274, it is held that, when no mention is made of any improvements by the viewers, we will not presume that any existed. Mere boundary lines are not improvements, but fences upon them, buildings, clearings upon the land inclosed by them are: Upper Darby Township Road, 15 Pa. Superior Ct. 652; Quemahoning Township Road, 27 Pa. Superior Ct. 150. The certificate of the viewers, with the attached draft, implies that these roads are through open cultivated fields without buildings on them, and this fact was not denied in the court below, by any exception filed.

It is urged seriously that the whole proceeding was void for want of jurisdiction because the draft shows “the new road opened was laid out over the tracks of a railroad company at grade and in such a case the Act of June 7, 1901, P. L. 531, determines the whole question, and such a road cannot be laid out or opened. As in the Palo Alto Road, 160 Pa. 104, we have here but one party objecting and she owns land on each side of the road to be opened. The county and township authorities, the other adjoining landowners, join with the petitioners in urging the confirmation of the proceedings as an important public necessity.

From what appears on this record, the admission of counsel at bar on argument, and the physical conditions of which the court may take judicial notice, there is undue anxiety in regard to the danger of a grade crossing at this point. It is a matter of general notoriety, a fact of public history that a great four-track trunk line of a common carrier, crosses the course of the road to be vacated, and to lessen the hazard of this and other grade crossings, the railroad company has constructed a four-track elevated system which will so change the operation of the railroad, as to relieve the service of the tracks on the road to be opened, from all but siding or switch purposes. As to such a location and use at grade, the court below says: “There is no reason why, if the supervisors of Bristol township desire, they cannot go underneath the tracks of the Pennsylvania Railroad or overhead. If they desire to construct the road at grade, before they have the authority or the right to do so, they must obtain it from the court of common pleas. The present proceeding in no way is in opposition to the act of June 7,1901; and at the suggestion of the court, the Pennsylvania Railroad Company has filed a stipulation, to be responsible for all damages assessed, and the cost of the proceedings, the construction of the public road to be opened, and “if it shall be found and required by the court of common pleas of Bucks county that the crossing of the railroad by the public .road shall be constructed otherwise that at grade, either underneath or above the railroad tracks by a bridge, the company will at its own expense build and construct such a crossing as shall be required by the order of the court.”

The petitioners, public officials and the railroad company are operating together in following the well-settled policy of this state as declared by legislative enactment/ and judicial decisions, to eliminate as far as possible the deadly grade crossing, which is now permitted only when an imperious necessity for it is first established. Mifflinville Bridge, 206 Pa. 420; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Crescent Township v. Railroad Co., 210 Pa. 334; Ligonier Valley Railroad v. Latrobe Borough, 216 Pa. 221, demonstrate the importance of protecting the traveling public from the dangers incident to grade crossings, and when there is such a good faith movement in the interest of the public at large, we will require substantial and 'material defects in a road proceeding to clearly appear before we will halt so beneficial an undertaking.

The appellant, with her counsel, appeared before the' viewers, and refused to produce witnesses. The viewers heard the testimony of others as to the damages suffered by her as a result of the abandonment of College road and opening the proposed road, and awarded damages. She did not except to the fairness of the jury in awarding her that sum.

We allow the amendment of the title of the appellant, overrule the motion to quash the appeal so that the case may be fully considered.

The decree of the court is affirmed.