| Pa. | Mar 26, 1877
The judgment of the Supreme Court was entered,
The 4th section of the Act 13th June 1836 is in these words : “If the court shall approve of the report of viewers allowing a road they shall direct of what breadth the road so approved shall be opened. And at the next court, thereafter, the whole proceeding shall be entered on record, and thenceforth such road shall be taken, deemed and allowed to be a lawful public road, or highway, or private road, as the case maybe.” The injunction to declare the breadth, and then to let the report lie over a term is imperative, in order before final confirmation that there may be an opportunity to file objections, or petition for a re-view or a re-re-view. This provision, it will be seen, is directly inconsistent with the final order or decree in this case. The decree that confirmation shall depend on payment of the damages appends a condition inconsistent with the record and final effect given to the proceedings required by the Act of 1836. So it is also repugnant to the very words of the Act of 24th February 1845. The last clause of the fourth section expressly enacts: “But if said court shall not be satisfied (i. e. as to the damages), the said report shall not be confirmed, unless the same (the damages) shall be paid first by the petitioners.” This is consistent with the Act of 1836, for if the court being satisfied confirms, or, the damages being first paid confirms, the proceeding can go upon record, and the road becomes, in the language of the act, thenceforth a public road. But the conditional confirmation suspends the effect, and puts the record and effect of the decree in abeyance, until payment of the damages, an act necessarily done in pais, as the law makes no provision for payment into court as an equivalent to payment to the party. The decree in this case makes the difficulty even more apparent. It ivas upon payment in ten days (it might have been thirty or sixty), and therefore running into vacation. Now what guide has the clerk for entering the whole proceedings upon record ? Is he to determine the fact of payment? Suppose payment made in ten days, but no receipt produced, the legal effect prima facie is that the conditional confirmation has fallen. Then again supposing the report to be that of the first viewers, what effect is the suspension to have upon proceedings to re-view ? In every view of the case the conditional judgment is contrary to the operation of the Act of 1836, and to the express language of the Act of 1845. The decree is, therefore, illegal and invalid, and should be reversed, for if we give it the effect of a valid, but interlocutory decree, and quash the certiorari, we leave the decree in force, the very thing which we have seen is illegal and void of legal efficacy. We discover nothing in the other assignments of error that requires correction.
The final decree of the Court of Quarter Sessions is therefore reversed and set aside, and the record ordered to be remitted with a procedendo.