Commonwealth v. Jackson, 10 Pa. Super. 524

Commonwealth v. Jackson

10 Pa. Super. 524 | Pa. Super. Ct. | 1899

Opinion bt

Beaver, J.,

“ It has been settled, if anything can be, that a road once laid *529out by tbe proper officers, under an opening order, can be altered only by a new proceeding under tbe road law. The act of the supervisor is official and, from motives of public policy, necessarily final, until changed or annulled in due course of law. It has been repeatedly held that his authority under the opening order is exhausted by his action upon it and neither he nor anyone by his authority can change or obstruct the road thus laid out, although not laid upon the ground selected by the viewers: ” Morrow v. Com., 48 Pa. 305. “The authority under an order to open is exhausted by the action of those to whom it is directed and cannot be resumed. The road once laid cannot be altered, except by a new and an original proceeding according to the road law. Any other doctrine would clothe the supervisors with arbitrary power and work infinite mischief in the old counties where the actual site scarcely ever corresponds with the courses and distances of the survey:” Holden v. Cole, 1 Pa. 303; McMurtrie v. Stewart, 21 Pa. 322. In Com. v. Marshall, 137 Pa. 170, the defendant claimed that he had built his wall without the limits of the road, as originally laid out by the viewers. He was convicted, however, because the wall was within the limits of the road, as opened by the supervisors, and this conviction was sustained. The question in the present case is the converse of this proposition. The defendant claimed in the court below that his fence, maintained continuously in the same place for twenty-eight years, was built originally twenty feet from the center of the road, as opened by the supervisors. The commonwealth’ contended and offered to show in various ways that the fence, as erected by the defendant, was within the limits of the road, as laid out by the viewers. The testimony so offered was ruled out by the court and the various rulings upon this subject are assigned for error. There was no error in these rulings. As already intimated, the question was not, where was the road laid out or what is the traveled track of the road now, at the time of the trial, but where was the road as opened by the supervisors with reference to the defendant’s fence ? or rather, where was the defendant’s fence with reference to the road as actually opened ? This was a question of fact upon which there was testimony on both sides; it was for the jury and their finding thereon is conclusive.

Nor can we see error in the charge of the court. It was plainly *530in accordance with the established principles quoted by us in the cases mentioned above. The issue was very plainly raised and clearly stated by the court as follows: “ Is the defendant’s fence inside of the road, as originally opened ? Is it less than twenty feet from the center of the generally traveled track, as it was originally opened? If it is, the defendant is guilty and your verdict should be so recorded. If it is not within twenty feet of that point, the defendant is not guilty.”

The answers to the requests of the commonwealth for instructions are also without error. The court is not to be blamed for failing to understand the first, and the second and the answer thereto practically raised the entire issue in the case. The request was “ that, if the jury believe that the defendant placed his fence on or in part of the public road leading from the northwest corner of Sadsbury township to public road known as plank road — the road in question in this case — laid out and confirmed by the court, he would be guilty as indicted,” and the answer, “ This point is refused. It is the road as actually opened on the ground that is to be obstructed and not the one laid out on paper by the court.” The various specifications of error in some form spring from this one question and, inasmuch as it has been clearly settled by an unvarying series of decisions from the beginning of the administration of our present road law in 1836 down to the present time, from Holden v. Cole, supra, to Com. v. Dicken, 145 Pa. 453, there is scarcely room for contention in regard to it.

Judgment affirmed.