26 Pa. Super. 219 | Pa. Super. Ct. | 1904
Opinion by
Their report shows that the viewers did four things, subject, of course, to the approval of the court: («) they vacated a portion of the road at Miller’s run ; (b) they supplied its place; (c) they recommended that the road throughout its entire length be widened to fifty feet; (d) they assessed the damages.
Section 18 of the act of 1836, which conferred authority upon the quarter sessions “ to change or vacate the whole or any part of any public or private road which may have been laid out by authority of law, whenever the same shall become useless, inconvenient or burthensome,” declared that the court shall proceed therein by views and reviews, “ in the manner provided for the laying out of public roads and highways.” The manner then provided for the laying out of roads contemplated a separate view by six viewers upon the question of damages, which might be applied for by “ the owner of any land through which a public road shall be opened as aforesaid,” within one year from the opening of the same. But by the first section of the Act of February 24, 1845, P. L. 52, apply to Lycoming and some other counties, it is provided that the number of road and bridge viewers shall be three, one of whom shall be a surveyor, if deemed necessary. Unquestionably this section controls, whether the petition be for the appointment of viewers to lay out an entirely new road, under section 1 of the act of 1836, or to “ change or vacate ” under section 18, or to assess damages under section 7, or to widen under the act of 1850. But as the second, third and fourth sections of the act of 1845 relate in terms only to proceedings where viewers are appointed to “ view and locate' a public or private road,” it is argued that as to a proceeding to “ change or vacate ” no change was made in the law except as to the number of viewers. It would follow from the adoption of this construction that the damages accruing to the owners
The act of 1836 did not confer power to widen roads. This was decided in 1843 in Church Road, 5 W. & S. 200, and again in 1848, in In re Liberty Alley, 8 Pa. 381. In the first cited case the court said : “ That object appears to be unattainable by any other process than vacating and laying out anew; and perhaps the subject requires legislation.” The defect in the law pointed out in these decisions was remedied by the Act of May 8, 1850, P. L. 713, whereby the courts of quarter sessions were given power,“ under the same rules and restrictions regulating proceedings for laying out and vacating public
The act of 1850 may well be regarded as an amendment of the eighteenth section of the act of 1886 whereby the term “ change ” as used in that section was enlarged beyond' the construction previously given to it, so as to include a widening, as well as an alteration of location of parts of the road and the vacation of the parts supplied. There may be instances, and this appears to be one, where both kinds of “ change ” are needed in order to remedy existing inconveniencies. As the court has power to make them, and as the procedure is the same, why, when both are needed, one as much as the other, may not both be made in a single proceeding even though it be conceded that the act of 1903 is unconstitutional ? This would not only tend to the saving of expense and the prevention of delay, but would also be advantageous for other reasons, and none of the objections raised by the present appellant that we have thus far considered is sufficient to compel a negative answer to the question.
But it may be said, that, leaving the act of 1903 out of view, the damages to the owners of land through which a road is laid under the eighteenth section of the act of 1836 are, by virtue of the local Act of March 24, 1868, P. L. 464, payable by the township, whilst as to the damages accruing .from the taking of land 'in the widening of a road, .the general law was’ not
The first section of the act of 1868 reads as follows: “ That all damages hereafter sustained by the owner or owners of any lands, tenements and hereditaments by reason of the laying out, altering or vacating the whole or any part of any public highway, road, street or alley in the county of Lycoming, shall be paid by the township, borough or city in which such lands, tenements and hereditaments are situate.” The contention is that the word “ alter ” as used in this act is synonymous with the word “ change ” as used in section 18 of the act of 1836, and that, as the latter, as used in that connection, was construed to mean a change of location only, and not a change of width, therefore it is to be presumed that the word “ alter ” was used in the same sense in this connection. But the reason why the word “ change ” was given this restricted meaning in the construction of the act of 1836, will be found, we think, in this remark of the court in Church Road, supra: “ As the question of width is determinable by the court, there seems to be no authority to widen.” It is thus seen that it does not follow, because by reason of the context, the word was given this restricted meaning in the construction of the act of 1836, that therefore it must be given the same meaning in the construction of subsequent road legislation, much less, that the word “ alter ” was used in the same sense in the act of 1868. True, it has.been held that “ the authority to alter a road is an authority to substitute a new road for an old one,” Millcreek Twp. v. Reed, 29 Pa. 195, but neither that case, nor any other authoritative decision to which our attention has been called would warrant us in holding, that when statutes authorize the altering of highways both by changing the location and by changing the width, a subsequent statute directing how the damages sustained by “ altering ” shall be paid, must be construed to apply to the former kind of change only. -The legislature
Was this local act repealed pro tanto by the Act of April 3, 1903, P. L. 137, entitled “ An act, to widen and alter, or to widen or alter, public roads, in townships in this commonwealth, connecting a city with a city, a city with a borough, or a borough with a borough; and providing for the assessment of damages, and their payment to persons injured by such altering or widening ? ’’ This question is raised by the alternative form of the viewer’s report, whereby it was directed' that the damages should be paid by the township, in the event and that event only, that the court should be of opinion that the county is not legally liable therefor. It is clear, therefore, that they did not impose them upon the township in the exercise of the discretion attempted to be vested in them by the second proviso ; indeed they recommend specifically that they be not imposed upon the municipalities mentioned in that proviso. In that event the act of 1903 declares that they shall be “ awarded and paid, according to the provisions of the act of June thirteenth, one thousand eight hundred and thirty-six, and its supplements.” There are several acts of June 13', 1836, and many more passed subsequently, some so-called, and others in effect, supplements thereto. There is grave doubt in our opinion whether this mode of providing how the damages shall be
We therefore conclude that whether the act of 1903 be valid or not, there was ample legislative authority for the action of the viewers as described at the outset of this opinion, but that they had not authority to impose the damages awarded by them upon the county. Under their findings they are payable by the township, by force of the act of 1868.
As the viewers reported that the appellant will not sustain damages beyond the benefits that will be conferred by the alteration of the road in the manner described, the question whether the statutes governing the proceeding contemplate the recovery of damages by a corporation having a mere easement in the highway need not be discussed.
The viewers assessed no damages against such corporations, because in view of the expenses that they will incur in conforming their properties to the widened and altered road, they did not think it just to do so, “ and,” to quote their language, “ we, therefore, make no such assessment, upon the condition, however, that said corporations will so change the location of their .... railroad and poles, as to conform to the said road as widened.” Manifestly, what they call a condition is a mere-nullity.' It relates to a matter concerning which neither they nor the court had jurisdiction to make any order in this proceeding, it can be given no effect in any other proceeding in which the rights and duties of these corporations may be involved, and in the event of a breach of it neither the viewers nor the court can revise their findings as to damages and impose any part thereof upon them. There is no conceivable way in which it affects, or can affect, prejudicially the appellant, and, therefore, is not necessarily fatal to the report, but may be rejected as surplusage: In re Road in O’Hara Twp., 87 Pa. 356.
The order is affirmed, the costs of this appeal to be paid by the Montoursville Passenger Railway Company, the appellant.