5 Pa. Super. 85 | Pa. Super. Ct. | 1897
Opinion by
The third section of the road law of June 13,1836, P. L. 551, requires viewers to report 'at the next term after their appointment. But the power of the court, in the exercise of a sound discretion, to extend the time for viewing and reporting by a continuance of the order until the next succeeding term has been too long recognized to be questioned. The extension or continuance of the order must be made during the term at which it was originally returnable, but we can find no authority for the proposition that it cannot be made if there has not been a partial execution of the order before the return day. In Metzler’s Road, 62 Pa. 151 — the case relied on by the appellant’s counsel —it appeared that nothing was done under the order until the return day, when on application to the court, a substitute for one of the viewers was appointed who with the other two went upon the ground viewed and made report all on the same day, after the term had commenced. In holding that the proceedings were irregular Mr. Justice Agnew said: “It has been repeatedly said by the court that the act of assembly, requiring the order to be executed and returned to the next court, must be obeyed, and when an order of view or review has expired before its execution, all subsequent proceedings under it are unauthorized.” This general language must be construed in the light of the facts of the case to which it was applied. The question as to the power of the court to continue an unexecuted order until the next succeeding term was not before the court. It could not hav.e been decided in accordance with the appel
The petition and the report of viewers exactly agree in designating the termini of the road as “ the end of the Spruce Run road at the corner of lands of Louis Hilke and David Reel in Ross township” and “a point in the Courtney’s Mill road at its intersection with the David Reel public road ” in the same township. There is not merely substantial but exact conformity between the petition and the report, and the terminal points are so defined that, following the given courses and distances, the road can be located, not only with reasonable, but with absolute certainty. It is scarcely necessary to remark that the route between the extreme termini of a road is exclusively for the viewers. And, “ while it is true as a general rule that a road cannot be located on another, regularly laid out and opened, yet it may be laid on another, so far as it may be necessary to reach the point of ending called for in the order: ” Road in Springdale, 91 Pa. 260 citing, Road from Westchester, 2 R. 421; Hess Mill Road, 21 Pa. 217; Southampton Road, 21 Pa. 356; Reserve Twp. Road, 80 Pa. 165. See also Trickett’s Road Law, pp. 6, 7, 8.
The objection that the draft does not show on its face that the public road at the end of which the proposed road begins i.s the Spruce Run road is not fatal to the report. It shows that it begins at the end of another public road near the corner of
The assertion in the fifteenth assignment, that a plotting of the route described by the courses and distances given in the report will not carry the road to its terminal, raises a question of fact upon which there is no evidence that we can consider; for it must be remembered our investigation is confined exclusively to the record proper. The same is true of the objections raised by the fourth, fifth, eighth and ninth assignments. They are all overruled.
The tenth assignment is not supported but is negatived by the report, which is all we have before us by which to determine whether the viewers performed their duty as to endeavoring to obtain releases. It is dismissed.
The sixth, assignment is equally without merit. The record shows that on March 16, 1895, W. G. Weir one of the county commissioners, accepted notice for them of the confirmation nisi. Their failure to appear in the court below or here, to object to the proceedings, was evidently not due to the want of notice. Furthermore, as the rule of court upon this subject has not been printed we have no means of knowing that it was not literally complied with.
The appellant and others applied for a review, alleging that the road as laid out by the viewers would be very injurious to the petitioners and burdensome to the township. It is claimed that one of the reviewers was one of the appellant’s copetitioners. As she made no objection until after the reviewers had reported in favor of the road she was evidently willing to take the chances, as well she might. An objection that he was not a disinterested and unbiased reviewer does not now come with good grace from her. Moreover, the report of reviewers was set aside and the question of his competency has become unimportant. The^ seventh assignment is overruled.
The objection that the viewers failed to note the improve
We need not discuss the question raised by the sixteenth assignment, since the objection, if it had any merit, was of such a nature that, in fairness, it ought to have been raised by exception in the court belcny.
The record shows that the report was confirmed absolutely by the court on July 3, 1896. The name of the judge making the order does not appear in the record as printed. Presumptively it was made by the judge or judges of the'common pleas authorized by the constitution and the laws to sit in the quarter sessions for the time being, and to finally dispose of the matter; and there is nothing whatever on the record before us to show the contrary. Therefore the twelfth assignment is overruled. The thirteenth assignment necessarily falls with the others.
We remark in concluding, that many of the assignments might have been dismissed without discussion because they are not framed in accordance with our rules. They are not safe precedents to follow. Finding no error in the record, the proceedings are affirmed.