159 Pa. 72 | Pa. | 1893
Opinion by
Under the general road laws of Pennsylvania a review is a matter of right, provided application for it is made at or before the next term of the court after the report of the viewers is filed. In this case the report of the viewers was excepted to, the application for a review was in time and reviewers were appointed who reported at the next term. On the 14th day of April, 1893, their report was set aside on the ground that one of them was a petitioner for the review, the exceptions to the report of viewers were overruled and their report was confirmed absolutely. On the 29th of April leave was given to file a motion to set aside or reverse the order of the 14th, and, in pursuance thereof, on the 13th of May a rule was granted to show cause why the order confirming the report of viewers should not be set aside, and why other reviewers should not be appointed on the petition previously filed. This rule was discharged by the léarned judge of the quarter sessions on the ground that the petitioners were tardy in moving for it. He seemed to think that they should have presented a new petition as soon as the report of the reviewers was excepted to, and that by their failure to so do until the exceptions were judicially passed upon they lost their right to a review. In this conclusion there was error. The petitioners were not responsible for the mistake of the court in the appointment of reviewers, nor entitled to have other reviewers appointed until the exceptions to the review were disposed of. They were not therefore in default prior to the 14th of April. Was there any such delay on their part after that date as deprived them of their statutory right to a review ? We think not. When the report of the reviewers was set aside the court should have vacated the old and made a new appointment on the petition then before it. That petition was sufficient in form and substance, and it did not cease to be an application for a review because the court failed to comply with the request of the petitioners to appoint proper persons as reviewers. We are clearly of opinion that a delay of fifteen days before applying for leave to move to set aside the order of April 14th is not sufficient ground for
It is not contended that under the act of June 18, 1836, an illegal appointment of reviewers on a good petition constitutes a bar to the petitioner’s right to a legal review, but it is suggested that the act of February 23, 1870, P. L. 228, which authorizes the court in its discretion to “ award an alias review or re-review,” is applicable to this case and fatal to their claim. We do not think so. The act of 1870 was manifestly intended to apply to York county only, but it is not necessary now to inquire whether it is a local or general act, because by its terms it is limited to cases in which there is a substantial or formal defect “ in a petition for a review or re-review of a road.” We have therefore a case in which the petitioners without fault on their part were denied their right to a legal review. The mistake of the court hereinbefore referred to is no justification of or excuse for its order discharging the rule to show cause.
It is alleged that the report of the viewers was defective in that the improvements through which they laid the road were not noted on the draft or plot annexed to it. It appears that the viewers in the body of their report stated that they had attached to it a plot or draft “ showing course and distance of such road and noticing briefly the improvements over which it passes,” but the draft attached to and returned with the report fails to show any improvements. It is true that the names of the owners of the lands through which the road passes are written thereon and there are marks upon it to indicate the location of the lines between their properties. But these do not constitute a compliance with the statute which requires that the improvements shall be briefly noted upon the draft. Mere boundary lines are not improvements, .but fences erected upon them, and buildings, clearings, etc., upon the lands inclosed by them, are. To satisfy the statute there ought to be something upon the draft from which it can be discovered whether the lands are improved or unimproved. Ordinarily if there is no reference to improvements in the draft or in the report the presumption is that there are none, but this presumption is rebutted by the report of the viewers that they have noticed the improvements in the draft, and in such case the omission to note
Order discharging rule to show cause, etc., reversed and procedendo awarded.
