In re Public Road

5 Pa. Super. 85 | Pa. Super. Ct. | 1897

Opinion by

Rice, P. J.,

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 appellant’s contention in tbe present case without overruling what had been declared in the cases cited by Mr. Justice Agnew himself, and •manifestly the court had no such intention. In Heidelberg Twp. Road, 47 Pa. 536, the view was returnable at January sessions. After the expiration of the term the order was taken out of the clerk’s office and the view made and returned at April sessions. It was held that the report was invalid because the order expired at January sessions. Here was the case of a wholly unexecuted order, but the Supreme Court (Agnew, J.,) said: “ The court should have been asked to continue or renew the order,” thus clearly implying that it had the power. So in Baldwin Road, 3 Gr. 62, the authority to continue the order for every purpose was distinctly asserted. “If,” said Mr. Justice Woodwakd, “a view cannot be bad in time to report to the next term after the order issues, a continuance of the order from time to time should be obtained in open court and docketed so that the record may be notice that the order is still pending.” In Salem Road, 103 Pa. 250, the present Chief Justice said: “ If for any sufficient reason the report cannot be made to the next term, the proper course is to continue the order to jView and make it returnable to the next succeeding term,” etc. See also Frankstown Road, 26 Pa. 472; also Ross Twp. Road, 166 Pa. 132. The illness or absence of 'a viewer, the inclemency of the weather, the arrangement of the terms of court (as in Allegheny county where each term extends to the beginning of the next) or other cause may make it impossible for the viewers even to meet before the return day, and. as the view cannot lawfully be made after the return day (Metzler’s Road, 62 Pa. 151) without a continuance of the order the court may, unquestionably, continue it until the next term. Where it has been regularly continued the viewers have all the powers both as to viewing and reporting that they had under the original order. It is their duty to make the view prior to the beginning of the next term, but under the statute may file their report at any time during the term. It appears, however, that a rule of the Allegheny county court requires road reports to be returned and presented to the court within the first week of the term to which the order is returnable. See.Road in McCandless, 110 Pa. 605. In the present case the viewers were appointed on November 24, 1894. On De cember 3, 1894, the first clay of the next term, the order was continued until the next succeeding term which began on March 4, 1895. Under the court rule the report' should have been presented during that week, but although the view had been regularly made, and the report agreed upon, it had not been signed by all of the viewers, and on March 9, 1895, by an order indorsed on the report itself, the court extended the time an additional week to enable them to come in and sign it. At the appointed time the report was presented and confirmed nisi. It is not alleged that any one was misled, and it is impossible to see how any one could have been. The court that made the rule had discretionary power to extend the time for sufficient cause where, by doing so, no possible harm could result to any one, and where, as in this case, the order to view had been fully executed before the beginning of the term to which it was returnable. The first and second assignments of error are therefore overruled.

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 lands of Louis Hilke, and the presumption is that this is none other than the public road referred to in the report. It is not to be supposed that the viewers stultified themselves, but rather that there was an accidental omission to put the name of the road on the draft — an omission that could have been corrected if attention had been called to it by an exception in the court below. The third and eleventh assignments are therefore overruled.

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 improvements through which the road passes is not sustained by the report and draft.

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.