*1 оnly deciding this case We are Opinion. with this consistent we pleadings on the judgment a motion for upon will appellants on opinion no whether express therefore of contract action establish the breach ultimately be able to allege. they is relinquished.
Jurisdiction A.2d wife, Driver, M. his and Samuel DRIVER and Sara P. Richard wife, Harris, Appellees, Margaret E. his D. Harris wife, H. Temple, Edna his and Walter TEMPLE and Earl J. wife, Appellants. Heffner, Mary H. his Heffner Pennsylvania. Superior Court Argued Feb. 1988. May
Filed *3 Bloomsburg, appellants. R. for Lynn, Michael for Langdon, Muncy, appellees. Howard J. McEWEN, OLSZEWSKI, WIEAND, BROSKY,
Before JOHNSON, KELLY, and BECK, TAMILIA, POPOVICH JJ.
WIEAND, Judge: Mary and by and Walter appeal by Temple
This Earl confirming Heffner, wife, from an husband and is established a which of a board of viewers finally of giving purpose their lands for the private road across wife, Driver, and and husband Richard and Sara appellees, wife, access to Harris, and husband Margaret Samuel adjoining properties. their Although appellants concede appellees’ “landlocked,” lands are they contend that the board of viewers abused its by discretion to refusing the roadway along establish the shortest available route. issue, considering Before we must determine whether the order of the trial is subject court to appellate review to prior a determination to damages paid appellants for the land them taken from for appellees’ road.
Proceedings for opening of private roads are autho- 13, 1836, rized the Act of June P.L. as amended. (36 2731) Section 11 thereof provides P.S. in pertinent § part as follows: quarter courts shall, several sessions ... upon
petition of one or persons more for ... a road from their respective lands or leaseholds a highway place or public necessary resort direct a ... view be had of the place where such road requested, and a report thereof made____ to be (36 1781)
Section 1 P.S. specifically authorizes the court to § viewers, appoint board of whose duties are defined in (36 1785) section 2 P.S. as follows: The persons as appointed aforesaid shall view such ground, if they agree shall there occasion for road, they proceed same, shall to lay having out the respect distance, to the shortest ground and the best road, such as manner shall do the least injury to be, property, and also as far practicable, agree- able the desire of the petitioners. *4 (36
Section 12 2732) P.S. if it provides appear by shall report the of viewers to the such court a road is necessary, “... proceedings in such shall be case[] record, directed, and, entered on the as before thenceforth such road shall be to private deemed and taken be lawful Thereafter, (36 according road.” 2736), to section 16 P.S. § damages by sustained the owners of the land [t]he through any private road may pass which shall be esti- road, mated in of provided public the manner the case and shall paid by request persons be ... whose Provided, That no such granted out: or laid road was damages fully shall be opened shall be before road paid. subsequent to roads and
Proceedings open private pro therefor are distinct damages to assess proceedings the as proceedings The commencement ceedings. held, damages, it has been is a waiver sessment confirming opening private of the in the order defects (1863). Because Road, 45 Pa. road. Weaver’s take, the proceedings the two must course which bifurcated legal all issues involved required to determine trial court use to another’s land for take proceeding after Only to can be assessed. damages paid be before and is necessary that a it has been decreed location, another, and the to across the land opened determined, it width, have been does and distance thereof damages pro “in the manner become estimate possible 1 Of there necessity, in the case of road.” public vided fore, separate are and distinct. proceedings the two not is still It has statutory
This
effect.
procedure
statute,
amendment,
byor
by
by
been altered
constitutional
rule.
of the bifurcated nature
procedural
recognition
from
appeal
has entertained an
proceedings,
such
Court
determining
confirming
an
a viewers’
finally
fixing
road shall be
out and
the location thereof.
that a
laid
Appeal
Monroeville Borough,
See: In re Private Road in
Marinclin,
(1964). The
The of contrary holding panel a majority in Raub, 521, 801 (1987), A.2d is disap- proved and expressly practice overruled. adhered to in type followed cases of this years has not many altered by beеn the elimination of quarter courts of sessions or by the of judicial establishment a unified system. The ofAct 1836 and practice thereunder remain extant.2 Cf. 22, 1964, Eminent 84, Domain Code of June P.L. § (decree confirming P.S. 1-517 of report viewers after it been order). has determined shall finally constitute final supra, grants
The Act
of
to
of
boards
view
broad
to
authority
determine whether
a private road is
and,
so,
necessary
if
it shall be
Although
where
located.
findings
board’s
subject
are
review and may be set
aside,
its authority
infringed
will not
a
upon by
court’s
re
substituting
In
its
fоr that
judgment
of the viewers.
Private Road in
Borough, Appeal
Monroeville
Marin-
dissenting
opinion
adopt
reasoning
The author of the
would
in
“since,
Beers v.
procedures,
Raub that
under the new
the same court
which confirms the viewers’
also conducts the trial on dam-
ages,
piecemeal
private
the need for
review
road cases
been
ha[s]
Dissenting Opinion
p.
removed.”
402-403. This
overlooks
fact
prior
proceedings
damages
determine
were held
the same court as
which had determined that
the court
rоad
opened.
proceedings
open
should be
Prior to
proceedings
damages
to assess
were both held in
the court
quarter sessions before a board of viewers. See:
re
Private Road
Marinclin,
Borough, Appeal
supra.
party
Monroeville
If a
were
of
awarded
viewers,
damages
by
permitted
dissatisfied with the
he was
exceptions.
exceptions
quarter
to file
These
were filed in the
court
Only
appeal
if
sessions.
Id.
he wanted to
from the
viewers’ award
damages
damages
by jury
and have his
he
determined
file an
appeal
pleas.
procedure
in the court of common
Id. This
was not
changed
only change
in 1969. The
made
constitutional
amend-
quarter
ment
1969 was to consolidate
the courts
sessions and
pleas
common
one
into
trial court
to be known as the
court
pleas.
common
*6
558,
clin,
Pa.Super.
204
Appellants contend that the of viewers in the board case by failing instant abused its discretion to follow the mandate to statutory lay having out the shortest damage distance and such a manner as to do the least However, remaining length land. of the roadway and the amount of damage only caused are two of several considerations mandated statute. equal importance Of ground is the “best for a road.”
The possible depicted three routes the instant case are as follows: extend from
According roadway Plan No. would Legislative Route 41080 to the southeast corner of the an Harris tract. It would cross the Heffner tract via woodland, existing roadway through traverse a field used farming tract, on Temple along existing continue an roadway Temple tract, on the and terminate at the Harris tract, where it connect existing would with another road- across way. roadway lands Heffner Temple feet, rise an of 1.11 average grade would feet grade The steepest length would be 1.11%. 4.81%. The this road would be 2596.31 feet. would It take .4340 acres from the Heffner tract and .9965 acres Temple from the length however, Of the roadway, tract. total distance of 1311.22 feet would over existing roadways, road, consuming .7224 acres. The balance 1284.99 area, length feet in and .707 acres in farm- traverse *7 routes, land Of by Temple. possible owned all roadway be the to would easiest maintаin. route 2 by
The Plan envisioned No. the shortest route. It would commence at Township Temple Road cross the descending stream, at a property grade of to a and 13.62% then continue the Temple property ascending across at an grade to Harris The steepest grade tract. 12.61% be would This route be feet in would 1062.70 14.57%. and length would take .5855 from the tract. Temple acres engineering There was for such testimony grades that be and drainage would excessive that extensive ditches capture would be run-off necessary prevent to surface and a washout of the To such a it road. construct road would be to structure necessary drainage erect across the stream and to with fill alter the road’s surface township accommodate its at the Whether entrance road. an all-weather road could be maintained was adequately uncertain. roadway by
The accommodated Plan No. would be begin it Township also Road but would terminate at the northwest of the tract. roadway corner Driver This length would 1932.8 and tаke acres of be feet would 1.056 pasture Temple. average grade land owned The of such by 8.94%, steepest grade road would but the would be be winding and would would include roadway 21.17%. by the south on It would be bordered sharp turns. several therefore, drainage extensive and, require would a stream surface wa- and divert capture and cross-drains ditches flooding of the prevent in order to from the road away ters engi- according to improvements, necessary These road. increase the cost significantly would neering testimony, constructing the road. from the evidence concluded of viewers
The board ter- poor, overall grades excessive presented “made them less 2 and 3 run routes rain over which Plan No. 1 in of the fact spite Plan No. than practical [that] than the injury more longer cause] [would [was] No. that Plan also observed The board others.” Temple’s farmland injury minimize the surveyed, would as it crossed crop lines and rows contour following the by road envisioned the board found Finally, his field. whereas, road; be an all-weather Plan No. would impassable becoming potential had the other routes Thus, rains. periods heavy during months and winter route, roadway longest though it entailed even most over the constructed in Plan No. would be included ground. suitable competent supported by findings fully are
The board’s of discretion court found no abuse The trial evidence. review Our of the viewers. confirmed *8 trial of the reversing the order no record discloses basis court. sought by however, the relief argue,
Appellants of res by principles was barred petitioner-appellees prior to a point argument they In of this support judicata. prove unable to were appellees in equity action wherein in this no merit There is right-of-way by prescription. relit precludes res judicata doctrine of argument. The fully litigated which was of fact or law of an issue igation of res will judicata doctrine in a action. prior “[B]efore for; sued ... thing (1) identity there must be: apply, action; (3) of the ... identity (2) of the cause identity or quality (4) identity of action; and parties capacity partiеs suing being or sued.” Shindel v. Leedom, 274, 278, A.2d prior action,
In the equity court determined appellees prove had failed to that their use a roadway Temple open, notorious, across land owned had been continuous, and hostile for a of 21 period years. The proceedings are authorized present by statute and are de termined Because the are by necessity. parties agreed that landlocked, appellees’ properties are the need for a private road has fully been еstablished. The remaining issues concern location and such as things grade and practicality. These are not the same litigated issues which were in the prior therefore, action equity. Clearly, present pro ceedings by principles are not judicata. barred of res correct, appellants contend,
It is that the route adopted by the viewers and confirmed trial by the court will through prime fact, however, cross farmland. This will be reflected in the of damages amount they which will be entitled to recover as а result of the of their land. It taking prevent does not alone the laying out of the road across land found most roadway otherwise suitable for purposes. confirming order viewers affirmed.
OLSZEWSKI, J., files a concurring dissenting opinion.
KELLY, J., opinion files a dissenting in which BECK JOHNSON, JJ., join. OLSZEWSKI, concurring Judge, dissenting: I agree majority with the that an a re- granting quest open private pursuant P.S. 2731 is final and appealable. respectfully disagree, however, I with majority’s decision affirm the the Board of finding view, Viewers. my Board abused its discretion Plan 1 as designating No. the right-of-way.
Section requires 1785 of Title 36 that the Bоard consider *9 the following determining private factors in the site for a
399 (3) (1) distance; (2) ground; best the the shortest road: (4) practica- and as far as private property; least injury A ble, 36 P.S. 1785. review of petitioners. the desire of of law findings by of fact and conclusions submitted for the No. 1 as support Board reveals no selection Plan for road. sight that the Board take into con- requires 1785 first Section shortest route for a road. It is sideration the greatest 1 dis- encompasses undeniable that Plan No. Indeed, of Plan 1 length tance. the total and area No. acres) 2 (2,596.31 that of Plan No. feet/.9965 over twice Therefore, Plan longer more than one-third than No. 3. weigh against adoption factor should Section 1785 of Plan No. 1. however, In Board, unpersuaded. to be appeared factor, stated:
giving “consideration” to this the Board The Board took into all of the first three factors account weighing in the and after all three conclud- specified Act in spite ed that Plan No. 1 the most ... practical way was longer. of the fact Plan No. lаw, of fact conclusions of 3/21/86 at
Findings effect, original). simply paid lip in the Board (emphasis not service to this factor. This error the Board is consequence; having proper- without failed to consider factors, remain- weigh one of the four the balance of the ly in ing tips factors favor. easily appellees’ that the Board requires The second Section factor 1785. The ground consider “the best the road.” P.S. finding that the readily supports evidence of record best noted, ground for the road is Plan No. 1. As Board the lands contained Plans No. and 3 have have relative- high grades prone Accordingly, and are to water runoff. ly seasons during rainy the use of vehicles the winter and hand, ground other Plan would be difficult.1 On the Appellees’ expert opined Plan No. 2 could be that with maintenance hearing in all seasons. Notes of before Board made drivable Viewers, at 46. 6/28/85 *10 400 1 nearly relatively
No. is level dry with terrain. This factor, therefore, easily weighs in favor of Plan No. 1.
Third, required the Board was to determine which route cause the least to injury the As property. fаctor, this Section 1785 the Board stated: “Plan No. 1 would be more in part inconvenient ... because it would in parts plot cultivated, two ... which crop-pro- divide is ducing Findings farmland.” fact and conclusions law conclusion, at 8. its justifying the Board also noted that 1 injury Plan No. “causes more than the others ... is [but] designed to minimize the injury to field of Earl J. Temple following crop contour lines and where rows it and by being edge crosses field on the of the field for Id. the remainder way.” Despite 11. the Board’s attempt to minimize the injury appellants, the fact re- 1, 3, mains that Plan No. unlike No. 2 Plans severs appellants’ prime, farmland. Prime farm- crop-producing simply land should not when laying be sacrificed out a road.2 Based upon presented evidence at the hearing statements, as as the well Board’s own I believe weighs against factor the use of No. Plan 1.
The fourth factor requires Section 1785 the Board consider the desire of the petitioners. Given that this factor will favor the always petitioning some measure of party, necessary giving weight restraint to this consideratiоn. Consequently, petitioner’s tempered by desire is a no- tion an practicability. only It extent which is or “practicable”3 that a desire is petitioner’s reasonable taken into consideration. Although creating Agricultural provisions
2. Act Lands Board, 106, 71 Condemnation Act No. Pa.S. are not directly applicable, express policy the Act evidences an of this Com- preserve monwealth to farmland. accomplishing something means the which is rea- "[Practicable] doing accomplish, sonable to of what it includes is unreason- unnecessary____ thing practicable necessarily able or must ‘A be ’’ possible, thing may practicable.’ possible but a that is not Jean- Co., Indemnity nette Glass Pa. Co. v. Insurance A.2d J., (Musmanno, (1952) dissenting). case, In this appellees favored Plan No. 1. Pursuant factor, question the fourth Section 1785 presented to the Board Is it practicable permit appellees was follows: lengthy, private through prime to build a farmland owner, of one owner and over the property land another merely grade becausе the route has a smaller and would be 4 I less to maintain? believe acted costly improvi- the Board in answering this dently question the affirmative. private interest of appellees obtaining an access route of choice should to the be subservient interest of the land- *11 words, whose property being owner confiscated. other 1785 permits appellees practicable Section to obtain a or road, possible reasonable not the best road.
A review of the Section 1785 factors establishes two length factors—the of the road and the injury property—weigh against adoption of Plan No. 1. One factor—the ground road—weighs best for the favor plan. As for the last factor—the desire of appellees—I believe the Board acted improvidently concluding that neither 2 Plan No. nor Plan No. 3 was a reasonable alterna- tive.
Finding that the balance of the Section 1785 factors weigh against adoption 1, would, of Plan No. I there- fore, reverse.
KELLY, Judge, dissenting:
I I dissent. would find that an authorizing order opening of a private subjeсt road is to appellate only review after the issue of damages has been resolved. Accordingly, I would quash the instant appeal interlocutory. I
Preliminarily,
note that
in the interest of judicial econo-
my, our courts
consistently adopted
have
of dis-
policy
couraging multiple appeals
single
in a
case.
“The fair efficient administration of justice
‘piecemeal
cannot tolerate
building
4. The cost of
a road is not a factor in this determination.
Appellees’ expert witness could not determine whether Plan No. 1
(which
route),
(which
lengthy
steeper
is a more
or Plan No. 2
has a
established,
grade)
costly
testimony
would be a more
alternative. The
however,
costly
that Plan No. 2 would be more
to maintain.
determinations
and the consequent protraction
of litiga-
”
Raub,
Beers v.
tion.’
A.2d 958
The majority finds that “an order finally confirming the
*12
of
opening
private
a
road is an order which is sufficiently
final to permit
immediate appellate review.”
374 Pa.Super.
401,
First, the order is not standards, final traditional as it does not end the litigation or dispоse the entire case. The parties stipulated that once the Board designated a route, a separate hearing would be held to determine the 1. The set forth in Cohen v. originally collateral order doctrine was 541, 1221, Corp., Industrial Loan 337 U.S. 69 S.Ct. 93 L.Ed. Beneficial 7). This dam- (N.T. 6/28/85 at appellants. owed damages place. taken yet has not litigation of the phase ages not meet the the order does Moreover, I find that test, requiring order collateral prong of Cohen third final until postponed “if review such that order to be irreparably case, right claimed will be in the judgment The Weav- Greco, majority, citing supra. Pugar lost.” (1863), proceedings open finds that Road, 45 Pa. er’s dam- to access subsequent proceedings roads and private that the com- proceedings, are distinct therefor ages damages for the assessment of proceedings mencement confirming opening in defects is a waiver right Thus, majority, to the according road. private of a confirming opening private the order challenge appeal unlеss an immediate lost” “irreparably will be road since view, changed much has Weaver’s In my is allowed. 1863; changes judicial major was written Road virtually have in the Commonwealth practice procedure previous proce- nature truly eliminated the bifurcated product rule is also I that the old waiver dure. believe era, longer applicable. and is no bygone Raub, supra, in Beers v. reasoning I that the stated find Beers, of this panel and persuasive. is both instructive 1969, cases followed that, road prior noted Court multiрle course, possibility with the bifurcated truly to the court sessions quarter judge from the appeals As stated Beers: pleas. common 551, 13, 1836, P.L. 36 P.S. Act of 1836 of June The [Act with sessions quarter the courts of vested seq.] et § sessions quarter cases. over jurisdiction and either confirmed of view the board judge appointed 2731, 36 P.S. See report. the viewers’ rejected or §§ 1, 36 P.S. P.L. April 2732. The Act of § viewers’ by the aggrieved any party allowed *13 of the confirmation appeal damages right the award of jury where a pleas, court of commоn that award to the of the to the course ‘according determine the issue would common law.’ This right applied to appeal private road cases virtue section 16 the of 1836, Act Huray, See Mattei v. P.S. 2736. 54 Pa.Commw. (1980). n. Thus, A.2d 901 n. 5 proceedings opening private roads followed a bifurcated course at the Borough. Monroeville time decided we The aggrieved the party appeal could confirmation the viewers’ report to this court from the directly quarter court sessions. time, At the same the party apрeal damages could the the portion report to the court of pleas common for a trial. jury Beers
Upon in Beers, supra, reasoning stated I would find longer applicable. waiver rule no court common pleas may now render one decision regarding issues of opening road and damages. Certainly, the proceedings remain “bifurcated” in the they sense that separate However, focus I upon issues. find would focus separate closely analogous more liabil- separate damages ity phases of a trial. Just as an order jury granting partial summary judgment ap- on is not liability pealable an until after is entered disposing damages issues,21 find that the order in the would instant immediately case not appealable.
I quash appeal interlocutory. JOHNSON, JJ.,
BECK and
join.
Milner,
See