Certiorari to the Quarter Sessions of Mifflin County

4 Yeates 514 | Pa. | 1808

Tilghman, C. J.

The first exception is grounded on the supposed want of definite points, where the road applied for shall begin and end. No general rule can be laid down which shall universally prevail in such cases. But her.e was a terminus a quo, the dwelling house of Kyle, and a terminus ad quem the Penn’s Valley road, well known as a great road, and the distance between them not much more than one mile. The maxim id cerium est quod cerium reddi potest is applicable here ; and I can see nothing in the first objection.

mi-jg-i *1 also incline to think the second objection illground- ^ ^ ed ; though it is not free from doubt. I compare the 1st and 17th sections of the act together ; and the words in the latter section, “ and if such road is found to be necessary,” have great weight with me, as they vary from the phraseology of the former section. Besides nobody is injured; the parties who apply for, and use the road, pay all damages to the owners of the ground, through which it is carried ; and moreover, are obliged to open it and keep it in repair at their own expence. And as to the last exception, it was not necessary, that the court should specify in their confirmation, what the law had provided for, in plain and direct terms.

Yeates, J.

The first objection against this road, is fully answered by the remark, that the petition of Kyle pursues the very terms of the 17th section of the act of 6th April 1802.

When the sessions confirm a private road and direct its breadth, the law draws after it the consequences of its being opened and kept in repair, by the persons applying for, and using the road; but the same need not be specified in the order of confirmation.

Captious exceptions against roads should not in my idea, be indulged ; but the substantial parts of the act should certainly be pursued.

It seems to me, that the return of the viewers upon this occasion, is substantially defective. The 17th section directs, that upon application for a private road, the return of the viewers shall be made “in the same manner, as is before directed by this act.” By recurring to the 1st section, we find that mode prescribed, viz. “ the viewers shall make report of the road, “ stating particularly whether they judge the same necessary “for a public or private road,” &c. And the directions of the law in this particular not being complied with, I am of opinion, that the return of the viewers is erroneous. But I declare this opinion with some diffidence, the other members of the court thinking otherwise.

Smith, J. The viewers had no power to return this as a public road, and the second objection fails on that ground, in my opinion. Mr. Watts observed, that Kyle’s petition did not pray for a private road. Smith, J. The road was from his house into the Penn's *Valley road ; which in the language of the 17th section r*CT7 is a private road. L 5 7 BkackenRIDGE, J. concurred with the chief justice.

Judgment of the sessions affirmed.