Road in Cassville Borough, 4 Pa. Super. 511

Road in Cassville Borough

4 Pa. Super. 511 | Pa. Super. Ct. | 1897

Opinion by

Rice, P. J.,

As the road vacated and the road laid ont to take its place are partly in a borough and partly in a township, the court of quarter sessions had jurisdiction: Somerset and Stoystown Road, 74 Pa. 61 (1873); Road in Chester, 2 Ch. Co. Rep. 438; Road in Verona, 21 W. N. C. 534; 11 Cent. Rep. 34 (1888); Parkersburg Borough Streets, 124 Pa. 511 (1889); Palo Alto Road, 160 Pa. 104 (1894). The first two assignments are, therefore, overruled.

That the termini reported by the viewers should correspond with those designated in the petition and order is clear upon reason and authority. “ They are the initials which describe the proceeding, and limit the authority delegated by the court to the viewers. When once the viewers cut loose from the order the identity of the proceeding is lost:” Road in Lower Merion, 58 Pa. 66; Boyer’s Road, 37 Pa. 257. But mathematical precision is not required in describing them either in the petition or in the report. It is sufficient if there be substantial conformity and if they be described so that’ the road can be located with reasonable certainty. “ All that the law requires is reasonable certainty in defining the points where the road shall begin and end, and that the road as laid out by the viewers shall begin and end, substantially at the points designated in the petition:” Springfield Road, 73 Pa. 127. The maxim, id cextum est quod certum reddi potest, is applicable: Kyle’s Road, 4 Y. 514: Miller’s Road, 9 S. & R. 35; Bean’s Road, 35 Pa. 280. The specific objection under consideration is, that the report shows that the road was not laid out between the termini mentioned in the order. This objection would not have been good, even if taken in time, as the opinion filed by the learned judge who presided well shows. There is substantial conformity in this particular between the petition and the report. The third assignment is overruled.

No exceptions to the report of viewers were filed, the report was confirmed absolutely on March 25, 1896, and on May 23, *5141896, an affidavit was filed, setting forth that the new road was opened. In June, certain citizens petitioned the court for leave to file nunc pro tunc the three exceptions which we have considered. A rule to show cause was granted, which was discharged on October 23, 1896, and on December 7 following, an appeal was taken from the order of confirmation. An appeal to the Superior Court must be taken and perfected within three calendar months from the date when judgment, sentence, order or decree appealed from was entered in the court below: Act of June 24, 1896, P. L. 212. This appeal was taken more than eight months after the decree of confirmation. Even if it be treated as an appeal from the order refusing permission to file exceptions, and it be conceded that an appeal lies from such an order, by no latitude of construction can it be held that the whole proceedings are opened for review. At the very best all that was assignable for error was the refusal of permission to file the specifie exceptions going to the jurisdiction of the court. The remaining assignments relate wholly to purely formal and not jurisdictional defects. They were not made the subject of exception in the court below, either before or after the decree of confirmation, and the • appeal from that order was not taken within the statutory period. Therefore they are dismissed.

The decree is affirmed and the appellant is directed to pay the costs.