46 Pa. 250 | Pa. | 1864
The opinion of the court was delivered, January 4th 1864, by
The proceedings for this private road resulted in a final confirmation on the 23d December 1861, and the issuing of an order to open it, dated 28th of that month.
On the 28th May 1862, a rule was obtained to show cause why the decree of confirmation should not be vacated, and the whole proceedings set aside, wdiich rule was made absolute on the 18th December 1862.
The reason for thus summarily expunging the road from the record, is said to be that the width was not fixed when the report of viewers was confirmed nisi on the 5th June 1861, but that is answered by the fact that during the same term, to wit, September 23d 1861, the width was fixed at twenty feet, and more than one term permitted to elapse thereafter before final confirmation. The omission to fix the width in the very decree of confirmation nisi, was cured by fixing it during the term. All parties had the time allowed by taw for filing exceptions, and therefore the road seems to have been duly granted in December 1861.
But whether duly granted or not, that decree was final, until reversed on certiorari, and the road opened in pursuance of ■ it could be got rid of only in the manner prescribed in the 18th
The decree making the rule absolute, was therefore erroneous and must be reversed, and the proceedings be reinstated.
Decree here accordingly.