Commonwealth v. Ball

277 Pa. 301 | Pa. | 1923

Opinion by

Mr. Justice Kephart,

Appellee instituted mandamus proceedings against the commissioners of Susquehanna County to compel the maintenance, repair and improvement of parts of an abandoned turnpike known as the Lackawanna Trail, largely used for the accommodation of the traveling public. The mandamus was resisted for the following reasons: (a) it did not appear the abandoned turnpike had been sufficiently identified and distinguished from other roads in the county, so that claims paid on account of it might be fully protected under the law; (b) by the Act of 1907, the legislature did not intend the county should improve highways abandoned more than half a century before the passage of the act, or highways made up alternately of pieces of abandoned turnpikes and pieces of other roads substituted for vacated parts of what had at one time been a turnpike. The chief objection urged here on appeal was to the admission of an ancient book to establish the organization and existence of an abandoned turnpike.

The latter question is based on the assumption that the minute-book offered in evidence was not properly proven. This book was offered for the purpose of showing the acceptance of the act of assembly under which the turnpike company was incorporated, the organization into a company of the individuals there named to conduct the affairs of the highway, and its actual existence as recorded therein. The book was a bound volume, 115 years old, starting in 1805; it was 10% inches wide by 15% inches long, and 2% inches thick, comprising 540 unruled pages. The first 465 pages consisted of writing with ink concerning matters relating only to the turnpike. The binding was stiff board or card-board, with a dull yellow leather covering; on the back, at the usual place to designate the title of a book, is pasted a separate red leather label, 2 inches by 2% inches, having printed thereon in gilt letters, about a quarter of an inch high, the words, “Minute Book Cochecton and Great Bend Turnpike Company.” The leather covering is of durable material, somewhat worn, breaking at the joinder of the lids with the book. The court below described its appearance as evidencing great age, corresponding with the dates of entries of the different proceedings by the officers of the company; copies of all instruments recorded therein were marvels of painstaking care; the usual indications of old age in written documents,— faded appearance of the ink, all in the same handwriting, absence of interlineations and erasures, of which there exist only about half a dozen in the entire book, — impressively stamp the document as being ancient.

When counsel offered this volume in evidence, defendant did not object because it was not an ancient document, nor that its prior custody had not been shown,— positions now taken before this court, — but objected to the offer as incompetent for the purpose stated (to prove the existence and operation of the company), and because “it includes what is not properly proven.” If the book was an ancient document, entitled to admission as such, what was recorded therein, as bearing on the existence or nonexistence of facts, in and of itself constituted the evidence, — no further proof of the contents was necessary. One of the reasons for the ancient-document rule is to obviate this proof. If handwriting and other acts connected with ancient documents must be proven in the same manner as modern instruments, the ancient-document rule would be destroyed.

The internal evidence of age and authenticity was so manifest that it might be said the book proved itself without further identification or evidence that it came from proper custody. It is not disputed actual use of the subject-matter was made for the purpose mentioned in the book. “Instruments more than thirty years old, unblemished by alterations, and coming from proper custody, are said to prove themselves, the subscribing witnesses being presumed to be dead; and this presumption, so far as the rule of evidence is concerned, is not affected by proof that the witnesses are living”: 10 E. C. L., section 342, page 1135. “The reason why evidence is required that an ancient document shall be produced from the proper depository is that credit may be given to its genuineness”: 10 R. C. L., section 299, page 1098. But this reason disappears when the character of the ancient document is apparent. A book having internal evidence of age and truth about it, like the one in question, speaks more for its genuineness than can custody. These assignments are overruled.

Judicial notice may be taken of the existence of public matters, such as general history known to the community at large, or salient facts of local history known generally in the particular community: 23 C. J. 122; 15 R. G. L. 1084 (streets of a city); Pearce v. Langfit, 101 Pa. 507, 512; Sandy Lake Borough v. Sandy Lake and Stoneboro Gas Go., 16 Pa. Superior Ct. 234, 240; Dyer v. Phila., 276 Pa. 348. The court, in deciding one case, will not take judicial notice of what may appear from its own record in another and distinct case, unless made part of the case under consideration, even though the action is between the same parties: Abbott’s Proof of Facts, 3d ed., 640. In counties where the court is conversant with its general affairs, judicial notice may be taken of the existence of highways, bridges and public buildings; also of the existence of abandoned turnpikes. Such notice of course would be predicated on a general knowledge of local history in relation to the highway. Courts are not bound to accept this medium unless it has the knowledge. This highway was part of the Lackawanna Trail, known for many years, and one of the principal thoroughfares in that section of the State. It would be subversive of public good to allow municipalities, impressed with the duty of properly repairing and improving these highways, to avoid liability by technical objections to evidence of the actual origin of the highways as turnpikes, their use as such being long since established as a matter of history. The legislature has determined the burden of improvement and repair is too great for townships to bear, and has placed it on the county.

What the act requires is that the highways must be maintained, repaired and improved. The extent to which this may be done is a matter of discretion with the commissioners. Like any other property confided to their care, it must be preserved, and the plain indication of our decisions is that mandamus may not only compel repair and maintenance (Winters v. Koontz, 60 Pa. Superior Ct. 134), but also improvement, without intervening action of other authority. We have been pointed to no act which would seem to hold otherwise.

The Act of 1907 in terms covered abandoned turnpikes without limitation. We need not pass on the decree striking out certain parts vacated under orders of the court, in view of the Act of 1919. The order covered the highway described in the petition for mandamus. Appellee does not complain of any omissions and it may be he was precluded under the last-named act. The order was lawful within the various points designated.

The decree of the court below is affirmed.