12 Pa. Super. 118 | Pa. Super. Ct. | 1899
Opinión by
A petition for the incorporation of Swoyerville, in due form .and properly signed, having been presented to the court of quarter sessions, the appellants filed exceptions to said incorpora
The first and second assignments of error complain, respectively, of the action of the court below in dismissing the first and second exceptions to the petition for incorporation. Said exceptions were as follows, viz: “ 1. The proposed boundaries of said borough include lands used exclusively for farming purposes. 2. The proposed boundaries include several villages separated from each other by land used exclusively for farming purposes.” These exceptions raised questions of fact, and when the court, after a hearing upon the testimony, overruled the exceptions, that was an adjudication of the facts contrary to the contention of the exceptants. The third assignment of error is against the making of the decree and is entirely dependent upon the fate of the other assignments. The fourth assignment alleges an abuse of discretion in incorporating the village of “ Maltby with the surrounding territory as shown by the map attached to the decree and made a part thereof, into a borough, because the surrounding territory, as shown by said map, includes four other villages in no case less than twelve hundred feet apart, unconnected by streets and lanes, the intervening land being by far the larger part of the territory incorporated, and used exclusively for farming purposes, the owners of which asked to be excluded.” These assignments of error all go to the manner in which the court below exercised its discretion to determine all questions of fact and expediency arising in the proceeding.
Although in accordance with the provisions of the Act of May 9, 1889, P. L. 158, this case comes to us in the form of an appeal, it is to be disposed of as upon a certiorari. Prior to
In appeals of this nature we have nothing before us but the record, of which the testimony is no part. To presume to review the case upon the merits and pass upon the soundness of the discretion exercised by the court below in determining disputed questions of fact, under conflicting testimony, would be a clear usurpation of authority. The law, in proceedings to incorporate boroughs, vests in the court of quarter sessions a discretion to determine all questions of fact and expediency,
A careful examination of the record here presented shows that all the statutory requirements have been strictly observed. The application was in due form, stating facts, which if true, ■established the jurisdiction of the court to make the decree of incorporation. The present appellants opposed the incorporation and filed exceptions, upon the following grounds, viz: (1) The proposed boundaries of the borough include lands used •exclusively for farming purposes; (2) that the proposed boundaries include several villages separated from each other by land used exclusively for farming purposes, and (3) the exceptants’ lands were in part used exclusively for farming purposes, and the exceptants, respectively, prayed that their lands might be excluded from the proposed borough. The allegation of the first exception, if true, was not sufficient reason for refusing the charter of incorporation prayed for in the petition; the ■extent and character of the land are not per se controlling objections: Borough of Blooming Valley, 56 Pa. 66; Taylor Borough, supra. The second exception was of greater moment. The force of the exception was, however, entirely •dependent upon the determination of the question of fact. Does this territory embrace several separate and distinct villages, or is it one village whose inhabitants have a community
In passing upon the prayer of the exceptants, that their lands be excluded from the proposed borough, the court was required to determine two questions, to wit: 1. Are the lands in question used exclusively for farming purposes? 2. Do said lands properly belong to the town or village? The authority of the court to exclude the lands must be-found in the Act of April 1, 1863, P.. L. 200. It is not enough that the lands sought to be excluded should be used exclusively for farming purposes; it must also appear that they do not properly belong to and constitute a part of the village. “Both these .conditions must concur, not only because the act so provides, but also for the obvious reason that lands within borough as well as city limits are often used
All the assignments of error are dismissed.
Decree affirmed and appeal dismissed at costs of appellants.