In re Road in Plumcreek Township

110 Pa. 544 | Pa. | 1885

Mr. Justice Gordon

delivered the opinion of the court, October 26th, 1885.

The Act of 1836 requires the appointment of six viewers for the laying out of all roads whether, public or private, and as long as the first section of this Statute applied to Armstrong county,'a compliance with its requisition was necessary in order to the validity of the proceedings. Let us then suppose that the legislature, instead of localizing'the Act of 1860, which substitutes three viewers for the six required by the Act of 1836, liad passed it as an amendment thereto ; it would, in that event, have been clear that the provision for six viewers would be repealed, and instead thereof that of 1860 would take its place. It would also follow, as of course, that the latter provision must apply to the laying out of all roads, whether public or private, and this because the amendment being a substitute for the previous enactment, its terms must govern. But what difference can it make that the amendment is limited to the county of Armstrong? The Act of 1886, as amended by that of 1860, is as much the law of this county as it ever was. It was, at one time, the Act of 1836 with six viewers, it is now the same Act with three viewers. An amendment does not make a new Statute, but only alters the old one in the amended particulars. How then can Armstrong county get beyond its own local code, or avail itself of a section of the old Act that, as to that locality, has been abrogated ? In all its road cases, it must certainly put up with three viewers, or none, since there is no provision for more than that number.

But, independently of this, the road view before us is fatally defective in several particulars. In the first place, there appears by the record no notice to the owner of the land through which the road is to pass of the laying out thereof, or of the assessment of damages, and this, of itself, is enough to vitiate the decree of confirmation. We understand, indeed, that, as to public roads, this court has taken both sides of the question; nevertheless, the more recent deliverances would seem to have definitely settled the doubt thus raised in favor of the position that, whilst notice to the land owner is necessary, yet it need not appear of record, but may be established, in the Quarter Sessions by oral proof, and thus the matter is put beyond the power of review in this court, because, on a certiorari, we can make no inquiry concerning that which is not technically part of the record. But, as the contention in hand is over a private road, the doctrine just stated does not apply.

In the case of Boyer’s Road, 1 Wr., 257, we held that it must appear in the proceedings that notice was served on the land owner, of the time and place when and where damages were to be assessed, and that no one's property could be taken without such notice. So in Neeld’s Road, 1 Barr, 353, it was said that notice of the road view and the assessment of damages must appear, and that such notice was absolutely necessary. That, “ to take a man’s property, and assess his damages without notice of it, is repugnant to every principle of justice, and such a proceeding is utterly void.” These were cases of private roads, and have never been overruled, nor can we consent to their impeachment by cases which affect only public roads. The rights which are involved in the two are very different; in the one case, that of a public road, the commonwealth, in taking land for its own use, exercises its right of eminent domain, and it may be so taken without compensation : Township of East Union v. Comrey, 4 Out., 362. It follows that all provisions with reference to notice to the owners of land, through whose property a public road may chance to pass, are ex gratia, and not of right. But with private roads the matter is wholly different. Here is the taking of private property for private use. An assumption that is prima facie unconstitutional, and can only be justified by the strictest necessity. In such case, it requires no argument to sustain the position that a court has no more power to pass the use of one man’s property over to another, without personal notice, than it would have to give judgment against one without the service of summons. Again, we cannot understand how damages can be assessed on a mathematical line, that which has length only without breadth or thickness. When the assessment was made, the court had not fixed the width of the road, and the viewers proposed none as the basis of their estimate. This was, of itself, an error fatal to the report.

The order of the Court of Quarter Sessions of the 7th of July, 1885, dismissing the exceptions, and confirming the report of viewers, is reversed, and all proceedings in the premises are set aside as void and of no validity.