Keeling's Road

59 Pa. 358 | Pa. | 1868

The opinion of the court was delivered, November 16th 1868, by

Sharswood, J.

It is an old and well-settled canon of construction that statutes in pari materid are to be construed together. It was accordingly held in the case of Neeld’s Road, 1 Barr 353, that the Act of April 16th 1838, § 19, Pamph. L. 642, providing for the laying out of private roads “under the surface of any land” to coal-mines, is to be regarded “as if it were a section in the General Road Law.” The act by itself, as is said by .the court in that case, is very crude and imperfect, and it could not be carried into effect without applying the provisions of the Act of June 13th 1836, Pamph. L. 556, to the proceedings under it. The petition for a private road un<ler the Act of 1836, must be for a road from the respective dwellings or plantations of the petitioner or petitioners “ to a highway or place of necessary public resort, or to any private way leading to a highway.” The definite points where a road, whether public or private, shall begin and end, ought to be set out with reasonable certainty. Unless it appears on the face of the proceedings that the provisions of the law in this respect are substantially complied with, the order for opening the road cannot be sustained. Both in the petition in this case and in the report of the viewers, the road in question is described as “ beginning at the southerly end of the Ormsby Ooal Railroad, and thence to the coal .or coal-mines of the petitioner.” It does not appear affirmatively, as it ought, whether the Ormsby Coal Railroad is “a highway,” or, if it is a private way, whether it leads to a highway. Indeed, it may he questioned whether a private road can he laid out to a private railway, even though such railway does lead to a public highway. There would be a want of that connection which the law evidently contemplates. A private road is a wagon or cart road, and cannot he converted into a lateral railroad by putting down a railway track upon it when opened. Lateral railroads are provided for under the Act of May 5th 1832, Pamph. L. 501, and the salutary restrictions laid by that act upon the exercise of the power of taking private property for what is in a great measure a private use, cannot be evaded or avoided by converting a private road into a lateral railroad.

We think, therefore, that the road, as proposed to be laid out by the petition, the report of the viewers and the order of the court thereon in this case, was not such a road as was authorized by the Act of April 16th 1838.

Order of the court reversed and proceedings quashed.