Incorporation of Moosic, Appeal, No. 4

Appeal, No. 4 | Pa. Super. Ct. | Jan 17, 1900

Opinion by

W. D. Pokteb, J.,

The first assignment of error is to the action of the court below in overruling the first exception presented by appellants. The exception alleged that the affidavit accompanying the petition, which set forth that all the signers of the petition were freeholders residing within the limits of the territory specified in the petition, was by the exceptants believed to be false. This raised a question of fact. The court overruled the exception, which was an adjudication of the fact contrary to the contention of appellants, and, being one of those things committed by the legislation to the discretion of the quarter sessions, we have no authority to review that finding.

The second specification of error complains that the boundaries of the proposed borough are not set forth as required by law, in that the courses and distances are not set forth at length in words. The special defects relied upon are that the lines along Mill creek and the Lackawanna river, respectively, give the distances and call for low water mark of the streams as the boundaries, but do not give the courses of the curves of the streams. The purpose of the requirement of the statute that the courses and distances of the boundaries be set forth in words at length, was that the limits of the proposed borough should be established with accuracy and that all persons might know whether they were within or without the lines. No boundary is easier to fix than one along the course of a stream. In this case the streams seem to be well known and of considerable size. We are of opinion that the boundaries set forth in the petition substantially complied with the statute: Duquesne Borough, 147 Pa. 58" court="Pa." date_filed="1892-01-04" href="https://app.midpage.ai/document/incorporation-of-duquesne-borough-6240515?utm_source=webapp" opinion_id="6240515">147 Pa. 58.

The third assignment of 'error is to the overruling of an exception to the form of publication of notice of the presentation of the petition. The appellants do not print the notice in their paper-book and we must assume that the action of the court below was correct.

The fourth, seventh, eighth and ninth specifications of error relate to the action of the court below in passing upon questions of fact and expediency, which have been by law committed to its discretion. In the absence of an abuse of that discretion, the determination of such questions by the court of quarter sessions is not reviewable. See Swoyerville Borough, ante, p. 118.

The fifth and sixth assignments of error refer to the action of the court below in overruling the fifth and sixth exceptions filed by the present appellants. Those exceptions set forth that the territory proposed to be incorporated contains four or five widely separated settlements, and a large amount of farm or wild land not appurtenant to any of said settlements. There were thus raised questions of fact which were to be determined upon evidence, and questions of expediency which were the subject of the discretion of the court below. Upon these exceptions it was the right of the parties, respectively, to produce evidence, and it was the duty of the court, upon consideration of the evidence, to determine, whether the territory was composed of several distinct villages having diverse interest, or was, in fact, one village with its properly appurtenant lands. The extent and character of the lands are not, per se, controlling elements in the determination of the question: Borough of Blooming Valley, 56 Pa. 66" court="Pa." date_filed="1867-11-04" href="https://app.midpage.ai/document/borough-of-blooming-valley-6233057?utm_source=webapp" opinion_id="6233057">56 Pa. 66. It is the duty of" the court of quarter sessions to exercise a wise discretion in passing upon these questions, and carefully avoid joining in an incorporated borough two or more separate and distinct villages. The judgment arrived at is not reviewable by the appellate court unless an abuse of discretion by the court below be distinctly charged and clearly established. In the present case there is no suggestion of an abuse of discretion. As to the farming lands alleged to be improperly included within the limits of the borough, it is most significant that not a single owner presented a petition, under the Act of April 1,1868, P. L. 200, asking that his lands be excluded. The inhabitants of the proposed borough are practically unanimous in- desiring its incorporation. We are not convinced that there was error in overruling the exceptions.

The tenth assignment of error alleged that the court disregarded the remonstances filed against the incorporation of the borough. We cannot find from the record that the court did not consider the remonstrances. That the court did not decide in favor of the remonstrants, does not establish that it did not give their representations all the weight which they merited.

The remonstrances set forth facts, which required the support of evidence, or made suggestions as to expediency, which were merely arguments. All the assignments of error are dismissed.

Decree affirmed and appeal dismissed at costs of the appellants.