18 Pa. Super. 160 | Pa. Super. Ct. | 1901
Opinion by
This proceeding was commenced in 1887, the report of viewers was set aside and that of the reviewers confirmed absolutely on June 22,1889, the first order to open was issued on June 4, 1890, nothing was done under this order and the whole matter slumbered for ten years. Upon petition of a number of citizens, on May 15,1900, a rule was granted on the commissioners of Crescent township and the supervisors of Moon township to show cause why an attachment should not issue against them for not complying with the order of the court to open said road. The authorities of Moon township, in which a part of the road with one of the termini was located, filed an answer alleging, among other things, that neither the report of reviewers, with the draft attached, or the order to open sufficiently defined the location of said alleged road or its termini, and that they were
When the petition of appellant was presented to the court below the time for ah appeal from the order of confirmation was
The alleged vice of this record is that it does not definitely locate the road which it is now sought to force the supervisors of Moon township to open through this appellant’s farm. The primary cause of this uncertainty is alleged to lie in the failure of the report of the reviewers, which is the foundation of the decree, to define with sufficient precision* the termini of the proposed road. “ The termini of a projected road are its designated and only means of identification. It is by these points it is docketed and indexed. . . . And if the viewers fail to describe the termini of the road as viewed and located it is fatal. They are the initials which describe the proceeding, and limit the authority delegated by the court in its orders to the viewers. To go beyond them is to exceed the authority. When once the viewers cut loose from the order and go outside of it, the whole identity of the proceeding is lost: ” Road in Lower Merion, 58 Pa. 66. The record in this case gives the courses and distances of the proposed road between the terminal points, and if either terminus is fixed with sufficient precision the whole road may be located with reasonable accuracy. In a road proceeding the petition for viewers lies at the foundation of the record and it must state the beginning and ending of the proposed road. The termini of the road as located by the viewers must be in substantial compliance with the petition, and the order to open the road must be in strict accordance with the report of the viewers. No duty devolves on the supervisors until the order to open the road issues, their functions are purely ministerial, not discretionary; they must open the road where the court has located it. The means of identifying the road must be found in the report. There must, therefore, be certainty in the description, at least so much certainty that the description will not answer equally well for two distinct roads. The court has no authority to confirm a report, and order a road to be opened where there is nothing upon the record to fix its location:
The certainty required in proceedings of this nature is wanting in this record, and is apparent upon the face of the decree. The defects of the decree necessarily appeared in the order issued thereupon, requiring the supervisors to open the road. The owners of land over which supervisors attempt to open a road have a right to demand that the writ under which the officer acts shall designate the land upon which he shall enter, and not vest him with a discretion to determine the land to be appropriated. They are entitled to the judgment of the court, for which that of the supervisors is not to be substituted. The order to open this road, now in the hands of the supervisors of Moon township, cannot be carried into effect without the exercise of a discretion by those officers with which they are not by law invested. The appellees seek by attachment to compel the officers to exercise that discretion which the law denies them. Of such a record it was said, in Bean’s Road, supra, “ the court has made a final order that cannot be executed, an order which in itself is erroneous.” We have held that such an order should be quashed: Road in Dunbar Township, 12 Pa. Superior Ct. 491.
The order of the court of quarter sessions dismissing the petition of appellant is reversed, and the proceedings are quashed.