Cornplanter Township Road, 26 Pa. Super. 20

26 Pa. Super. 20 | Pa. Super. Ct. | 1904

Opinion by

Rice, P. J.,

The petition was for a road “ beginning at a point on the Cherry Run road between, the house of William Cromack, and a red tank in the borough of Rossville, and ending at a point on the Franklin and Warren road at or near the bam of Peter Bankson, in Cornplanter township.” The viewers reported that they “ met on the ground mentioned in said order of court; ” that “ they proceeded to consider and travel over the proposed route for a public highway as prayed for and between the termini thereof as prayed for; ” that “ after an examination of the same said viewers decided that a public road was and is necessary as prayed for; ” and that having regard to the shortest distance and best ground, “ they proceeded to lay out the same for public use as follows: Beginning on the center line of the Cherry Run road, near William Cromack’s house, at a point sixty-two feet northeasterly of the north line of Fred Bassett’s lot ” (by courses and distances which are given) “to the center line of the Franklin and Warren road near the barn of Peter Bankson, and as shown by the attached map or plot.”

The report was excepted to upon the grounds, first that the termini of the proposed road, especially the terminus at the Cherry Run road, as set forth in the petition are uncertain, second that the report does not show that the latter terminus, as fixed by the viewers, is the same as that prayed for in the petition.

1. The petition for the view lies at the foundation of all subsequent proceedings and can do no more than to state the beginning and ending. “ They are the initials which describe the proceeding and limit the authority delegated by the court in its order to the viewers : ” Road in Lower Merion, 58 Pa. 66, and cases there cited; Road in O'Hara Township, 152 Pa. 319; Derry Township Road, 11 Pa. Superior Ct. 232; Road in Dunbar Twp., 12 Pa. Superior Ct. 491; Crescent Township Road, 18 Pa. Superior Ct. 160; Sewickley Township Road, 23 Pa. Superior Ct. 170. Reasonable certainty, therefore, in the description of the termini in the petition is requisite. But mathematical precision often would be impracticable, and the foregoing, as well as other cases, show that it is not absolutely indispensable : Springfield Road, 73 Pa. 127; Road in South Abington Twp., 109 Pa. 118; Road in Sterrett, 114 Pa. 627; Cassville Boro. Road, 4 Pa. Superior Ct. 511; Trickett on Roads, 25, etc. Where the objection urged against the sufficiency of the description in the petition is based on allegations of fact outside of the record, the decision of the quarter sessions overruling it will not be reversed unless manifest error has been committed; this for the obvious reason that that court having the evidence before it is in a better position to judge of the meritoriousness of the objection than we are without it: Rostraver Township Road, 21 Pa. Superior Ct. 195, and cases there cited.

2. With regard to the designation of the termini in the report we repeat what we said in Hector Township Road No. 1, 19 Pa. Superior Ct. 120 : “ It is sufficient if there be substantial conformity between the petition and the report and if they be described so that the road can be located with reasonable certainty. If there is substantial conformity between the petition and the report, and either terminus is definitely fixed in the report, a defect in the description of the other terminus is not necessarily fatal; for this may be ascertainable by tracing the courses and distances reported: Bean’s Road, 35 Pa. 280; Road in Sterrett, 114 Pa. 627, 633. See also Road in Dunbar Township, 12 Pa. Superior Ct. 491, at p. 494; Roche’s Private Road, 10 Pa. Superior Ct. 87.” No objection has been or can be made to the sufficiency of the description of the road as laid out by the viewers; nor do we think, taking the report as a whole, that the objection that it does not show that the terminus in the Cherry Run road, as fixed by the viewers, is the same as that prayed for is valid. True, they do not mention the red tank but they do declare in substance and effect that the road laid out by them is identical with that prayed for. The learned judge below correctly and concisely sums up the discussion by saying that they “ designated definitely the point of beginning as being not only near William Cromack’s house, but of a certain distance on a certain bearing from the northerly line of Fred Bassett’s lot. An examination of the report, including the draft thereto attached, leaves no uncertainty as to the point of beginning and this point harmonizes with that de< scribed in the petition.

3. At the time the petition was presented there was attached to it the following, signed by all the commissioners of Corn-planter township, “ And now, April 10, 1902, we, the undersigned road commissioners of Cornplanter township, hereby accept notice of the within petition and approve the same.” The report of viewers further sets forth that ten days’ notice was given to the road commissioners of the time and place of the view “ and that in pursuance to said notice a majority of said road commissioners were present at said view and concurred in the laying out of the said road and approved the same.” The commissioners made no application to have the proceedings set aside, filed no exceptions to the report and are not complaining here. Under the circumstances we are of opinion that the appellant has no standing to raise the objection that the provisions of the Act of May 2, 1899, P. L. 176, relative to notice to supervisors were not literally complied with.

4. While the quarter sessions may set aside a report of viewers for the reason that they made no effort to obtain releases of damages, if the extraneous evidence warrants such a finding (North Union Township Road, 150 Pa. 512), yet if the court overrules the exception its decision of the question of fact raised thereby is irreviewable on appeal. The only question relative to this subject which can be brought before the appellate court is as to the sufficiency of the report, and it has been authoritatively decided that it is not necessary to its validity “ that the viewers should state in it that they have endeavored to obtain releases, nor that in the assessment of damages they have taken into consideration the advantages accruing to the landowner from the opening of the road. It will be presumed that the viewers performed their duty and that all things were rightly done unless the contrary be shown: ” Road in South Abington Twp., 109 Pa. 118; In re Melon Street, 182 Pa. 397; Road in North Franklin Twp., 8 Pa. Superior Ct. 358; Derry Township Road, 11 Pa. Superior Ct. 232. The presumption is aided in the present case by the report for the viewers say: “ Not being able to secure releases, and looking the matter well over, they deemed the road of much more value to the land of the landowners than a damage.”

5. The principle is settled by innumerable decisions and is made a rule of court that upon appeal in road proceedings “ this court will not suffer the merits of the case to be entered into, nor reverse the order of the quarter sessions, unless for some irregularity apparent on the record, or because the court below have exceeded their jurisdiction, or have erred in their judgment in point of law: ” Rule 12. This is all that need be said relative to the exceptions which allege that this appellant was entitled to substantial damages, that the road is unnecessary for the accommodation of the public and that the expense of opening, constructing and maintaining the same would be a heavy and useless burden upon the taxpayers.

6. The remaining exceptions related to the conduct of the petitioners and viewers. But whether the viewers misbehaved themselves or whether any undue influence was brought to bear ■upon them, was peculiarly within the province of the quarter sessions to determine, and its determination will not be interferred with except for manifest and flagrant abuse of discretion: Road in Lower Macungie Township, 26 Pa. 221. Under the facts found by the learned judge below and set forth in his opinion and the decision of the Supreme Court in Road in Dunmore Township, 7 Atl. Repr. 193, and 4 Cent. Repr. 38, we cannot say that there was error of that kind in the overruling of these exceptions.

All assignments of error are overruled and the order is affirmed.