3 Whart. 105 | Pa. | 1838
The opinion of the Court was delivered by
The matter complained of here, as error in the Court below, is, that the Court quashed an order issued by the clerk of the Court during its recess, for opening the road as reported by the viewers.
If there was no previous order or decree of the Court authorizing the issuing of such order, the Court were right in quashing it. The petition for the road, the appointment of the viewers, and their report were all, most probably, made under the act of 1802 and its supplements, as the report of the viewers appears to have been filed at the session of the Court held in the early part of September, 1836, and the late act on the subject did not come into operation until the first of that month. The act of 1836 only repeals the prior laws thereby altered and repealed, so far as they are inconsistent with it. And as the duty imposed upon the viewers, and the manner prescribed thereby for the performance of it, seem to be the same as 'by the former laws, it does not appear that any valid objection, growing out of the last law, could have been made to the Court’s receiving the report of the viewers, and acting upon it in the same manner as if it had been authorized and wholly made under the same. This being the case, the Court received it, and on the 13th of September, 1836, directed the entry of “ confirmed nisi,” to be made on it. The meaning of this entry, most probably, was understood by the Court at the time, though we can only conjecture what was intended by it. But we may reasonably conclude that it was not designed to be a direction to the clerk to make out an order for opening the road of any particular width in the event that followed, which was the appointment, by the Court, at the following session thereof, of reviewers, according to the prayer of a petition duly presented for that purpose; otherwise the Court would not have quashed the order issued by the clerk for opening the road. The 4th section of the act of 1836, Purd. Dig. (by Stroud,) 884, directs what the Court shall do, if they approve of the report of the viewers allowing a road: the direction, is in these words, “They (the Court) shall direct of what breadth the road so approved shall be opened; and at the next Oourt thereafter, the whole proceedings shall be entered on record; and thenceforth such road shall be taken, deemed, and allowed to be a lawful public road or highway, or private road, as the case may be.” By the 25th section, page 886, it is farther directed, that “in all cases of views for any purpose mentioned in the act, the Court shall, on petition of any person interested, direct a second view or review for the same purpose: Provided, That application therefor be made at or before the next term of the said Court after the report upon the first view.” These two sections taken together show conclusively,
The petitioners for a review, proceeded with their order, as it would appear, by taking it out, getting the reviewers therein named, after being duly organized, to go and review the location of the road. The reviewers, however, not being able to agree on a report, either for or against the road, therefore merely reported that fact to the Court, who directed a similar entry of “ confirmed nisi,” to be made thereon, to that which was made on the first report. It is even difficult to conjecture’what was intended by this entry. But we may fairly infer that it was not intended
Upon examination of the whole record, we are not able to discover any previous decree of the Court, authorising the clerk to issue the order for opening the road and therefore cannot undertake to say that the Court erred in setting it aside. Neither can we say from the proceedings that were had in the case, and from what may have been shown to the Court below, that they were bound to have made an order establishing the road and for opening it. — The order of the Court below is therefore affirmed.
Judgment affirmed.
Cited by Counsel, 5 Wharton, 335, 486 ; 3 Watts So Sergeant, 559: 5 Harris, 73 ; 6 Casey, 157 ; 2 Wright, 371.
Cited by the Court, 1 Barr, 358; 4 Id. 339; 5 Id. 515; 8 Id. 486; 5 Casey, 22.