In re Washington Road

72 Pa. Super. 461 | Pa. Super. Ct. | 1919

Opinion by

Trexler, J.,

There are eighteen assignments of error. This is the third view had of the road in question, the prior two re ports in favor of the vacation of the road, having been set aside for technical reasons.

An examination of the draft reveals that the road begins in one township and ends in another. It does not occupy the division line of the townships except at the place where it crosses at right angles. The appellant argues that the proceedings must be considered as having been begun under the Act of June 7, 1907, P. L. 444. That act provides that whenever any public road “is between two or more townships or on any division line between the same,” and has become useless, inconvenient or burdensome, the court of quarter sessions may upon petition signed by at least fifteen property owners of each township, “change or vacate the whole or any part of the said road.” By no stretch of language can it be said that the road in question lies between two townships. “The word ‘between’ indicates an intermediate space, which excludes and cannot include that to which it refers. If land be granted between one township and another, both are clearly excluded from the grant. If land, described as lying between lot number one and lot number three, is conveyed, it cannot be pretended that either lot or any part thereof passes by the deed”: Phila. v. Citizens, etc., Ry. Co., 151 Pa. 128 (137). All statutes are to be construed so as to give them operation if the language will permit, instead of treating them as meaningless: Howard Association’s App., 70 Pa. 344. In order to attach any meaning to the first clause and make it applicable to a possible situation, we must consider the conjunction “or” as coordinating the two clauses. Each clause thus being the equivalent of the other and the latter defining or clarifying the first. It may be argued that if we apply the same sense to both clauses, the use of the first was entirely unnecessary. There is force in this argument but we are met with a situation which must be taken as it is and the construction we place on it may not be very satisfactory but it seems to be the only one possible, It is not necessary to a decision of the case to so state, but it may be that the act was intended not only to apply to roads situate on township lines but such as crisscross such lines. However, this may be, we are convinced that the act does not apply to roads that merely bisect such lines at one point.

Objection is made that the provision of the act above referred to (Act of 1907), that fifteen property owners of each township shall sign the petition has not been followed. If we are right in the view we have taken, the above act does not apply to the cáse before us and of course the objection falls. We, however, do not wish to be understood as giving our assent to the alternative proposition, that if the Act of 1907 applies the petition is fatally defective. There are thirty signers to the petition. The presumption is, that the proceedings were regularly instituted. If the objection had been promptly made we presume the petition could have been amended so as to affirmatively show that the petitioners were qualified. As the statute does not expressly require the qualifications of the petitioners to be averred, its omission is not cause for reversal: Road in South Abington Twp., 109 Pa. 118; Road in Borough of Bellevernon, 15 W. N. C. 232.

Section 1 of the Act of April 21, 1846, P. L. 416, gives power to the courts of quarter sessions to vacate public roads whether laid out by authority of law, or existing by prescription or lapse of time and generally to all roads, except private roads, resting upon express grant, the evidence of which is still in existence. There is objection made that the petition does not state that the road was opened under any act of assembly, i. e. by authority of law. The petition states that there is no record of the road in the quarter sessions and that the road has been opened for over forty years. That is a sufficient statement of the status of the road. It is clear that the road was opened long enough to be designated as a road “by prescription.” The power to vacate follows from the express provision of the act.

The second exception is that the road is useless to the residents of said township. This is trivial. The one who drafted the petition evidently followed the form book too closely. The words objected to may be treated as surplusage.

Objection is made that two of the viewers were not impartial, but were prejudiced and biased viewers, because they were viewers in the proceedings to vacate this particular road and because they had, after their appointment passed an opinion on the matter submitted to them before the hearing. We have already held in Public Boad in Boaring Brook Township, No. 23, March Term, 1919, that since the Act of 1911 limits the board of viewers in a county to nine viewers and allows a minimum of three, necessarily the same viewers in the contemplation of the act can serve in cases of review, or where reports are set aside, on the same road several times. This may sometimes create an awkward situation but it arises out of the necessity of the case. The question of fact involved as to whether the viewers had expressed themselves as to the necessity of the vacation prior to the hearing was for the court. The viewers contradicted the statements attributed to them and this court is not the place to settle that controversy.

The exception that the petition and order do not agree as to the description of the road cannot be sustained. There is a slight difference between the two but the description of the road by courses and distances is the same in both cases.

Complaint is made that the notice to the supervisors and county commissioners was not given in compliance with the law. The record shows that the supervisors and commissioners accepted service of the notice of the time and place of the proposed application and of the place of meeting of the viewers, but even if this were not so, a perusal of the Act of March 29, 1905, P. L. 69, requiring such notice applies only to the laying out, opening and construction of new roads.

Another exception complains that a material alteration was made on the petition by some one in the interest of the petitioners after the same had been presented to the court and the viewers had been appointed. It is alleged that the figure stated the distance of the ending of the road proposed to be vacated from a certain intersecting road 6.776 and that this was changed to 6776. The matter was called to the attention of the court and we see no reason why his comments upon this exception should not be considered as sufficient reason for dismissing it. They are, in part as follows, “There is nothing whatever before us to show by whom the alteration was made, or in whose interest. That there was an erasure at the point indicated is apparent from an inspection of the petition, but such inspection does not reveal what mark or figure, if any, was erased. If the number was expressed decimally it is evidently no more and no less than a clerical mistake and subject to be rectified on application. It appears further that no wrong or injury has resulted to any party in interest from the alteration complained of even if made after the presentation of the petition.”

Complaint is made that the report of viewers vacates only a part of said road, the part lying in the Township of Washington. The only basis for this argument is the selection of a sentence from the report of viewers and making the word “points” apply to certain figures immediately preceding it. Eeference is made to the plot or draft of the road vacated and it is very evident that the word “points” referred to the termini of the road. There can be no doubt as to this when we consider the whole report.

Another exception is that the petition and order were merely directed to vacate the road, while the Act of 1907 provides that the court shall change or vacate such road. Sufficient answer to this is that we above decide that the Act of 1907 does not apply to the case we are considering-

Another exception is that the hearings were not held in accordance to the provisions of the Act of June 23, 1911, P. L. 1123. We again quote from the opinion of the court, “There is no evidence before us, either in the record, or in the depositions of the witnesses submitted, that.hearings of the board in this matter were held at any other place than the court house or otherwise than publicly, as provided by the said Act of 1911.” After an examination of the report, we think this is a correct statement.

All the assignments of error are overruled and the decree of the court is affirmed.