78 Pa. 316 | Pa. | 1875
delivered the opinion of the court, February 1st 1875.
Two exceptions are taken to the action of the court in this case. The first is, that they violated one of their own rules in appoint
The record shows that there had been a previous petition for a road between the same points as those indicated in the second one, May 15th 1871, and a report of viewers thereon, which was set aside January 8th 1872. This statement, on first blush, would seem to indicate an infraction of the rule above set forth. But upon further examination it appears that the former view was set aside on purely technical grounds, and not upon a judgment on the merits of the proposed road. The Court of Quarter Sessions thought the case did not come within the spirit of the rule, or in other words, that the view had not “ finally failed.” In this we think they were right. That there should be some reasonable restriction upon re-applications for views, after the judgment of the court has passed, upon full hearing, on the necessity of the road asked for, no one can well doubt.
On the other hand there is no reason for such restriction where the view has been set aside for informality, for, in such case, the merits of the application are not reached. For the purpose of curing such technical defects, new viewers may be appointed upon the old petition : Charleston Road, 2 Grant 467. And we cannot see why the same end may not be reached as well upon a new petition.
• The second exception is to the action of the court in refusing the appellant a review. In this, also, we think they were right. The Act of Assembly requires the application for this purpose, to be made at or before the next term of the court after the report on the first view. But as the appellants’ application was not made until nearly two years after the report was filed, it was clearly too late. The design of the act in providing for these reviews, is that the court may be fully informed as to the necessity of the road before their final action upon the report, and hence it is that applications therefor are required to be made promptly.
The complaint made that the judges violated a rule adopted for their own government, to wit: “ that no road -crossing a railroad at grade should be confirmed unless a controlling necessity existed,” is something that we can take no cognisance of. It is indeed an excellent rule if properly administered, but as it rests wholly in the discretion of the court we can have nothing to do with it.
The proceedings of the Quarter Sessions are aflirmed.
