Appeal, No. 169 | Pa. Super. Ct. | Jan 17, 1900
Opinion bv
1. The petition for the appointment of re-reviewers set forth: “ That a public road, or highway, has long since been laid out and opened, beginning at Landis Valley, in said township of Manheim, and ending in the Lancaster and Lititz turnpike at the village of Neffsville, hi said township of Manheim. That a portion of said road, beginning at the Lancaster and Lititz turnpike and ending at a point about 150 feet east of said turnpike, has become useless and inconvenient and burdensome to the public and to the owners of property through which it passes, and that the public and the owners of property would be benefited by changing the bed of that portion of the said road so that it would end in the Lancaster and Lititz turnpike at a point eleven feet south of its present terminus, beginning to diverge from its present location at a point about 150 feet east of said turnpike.” The order issued to the re-reviewers stated that the part of the road proposed to be vacated, as well as the road to be laid out in its place, were in Manheim township. The re-reviewers reported that they “viewed the ground proposed to be vacated, and parts adjacent, and .... do lay out in lieu thereof for public use the new road,” describing it by the termini mentioned in the petition and order, and also by courses and distances. There is not the slightest uncertainty in this report as to the location of the road vacated or the road laid out in its place. It is the identical location described in the petition and orders, and, as these name the township, the omission to designate it by name
2. The eighteenth section of the Act of June 13,1836, P. L. 551, provides that the court of quarter sessions shall have an thority, in the manner provided for laying out public roads, “ to inquire of and to change or vacate the whole or any part of any private or public road which may have become useless, inconvenient or burdensome.” A proceeding to “ change ” part of a road from one location to another necessarily involves a vacation of the old road to the extent required to make the change. Therefore, so far as the end to be attained is concerned, there is no substantial discrepancy between the petition for the appointment of viewers in the present case and the petition for the appointment of re-reviewers. Both contemplated precisely what the viewers and the re-reviewers reported, namely, a “ change ” of that part of the road lying between the terminus in the Lancaster and Lititz turnpike and another clearly designated point about 150 feet to the east, by shifting the terminus above mentioned eleven feet to the south, laying out a road from the new terminus to the designated point, and vacating the part of the old road thus supplied. Nor is there any discrepancy between the two petitions, excepting in mere verbiage, in the description of the part of the road proposed to be vacated or changed or the road to be laid out in its place. It follows that the fourth and fifth assignments of error must be overruled.
3. It is argued in support of the seventh assignment that a petition to change, or to vacate and supply a road, although drawn in the language of the act, is insufficient to give the court jurisdiction, unless it sets forth the particular defects in the present location. The case of Road in Otter Creek Township, 104 Pa. 261" court="Pa." date_filed="1883-10-11" href="https://app.midpage.ai/document/in-re-the-vacation--supply-of-a-public-road-6237563?utm_source=webapp" opinion_id="6237563">104 Pa. 261, is cited in support of this proposition. But in that case the complaint was, not that the petition was not full enough, but that it was too full; in other words, that it suggested the route between the termini, which was exclusively for the viewers. It was of such a case that Mr. Justice Clark said: “To move the discretion of the court, it is certainly proper to recite in the petition the particular defects in the
4. Where an appeal is taken from any order or proceeding in relation to a public road, this court will not suffer the merits of the case to be entered into, nor reverse the order of the court of quarter sessions, unless for some error or irregularity apparent on the record, or because the court below exceeded their jurisdiction or erred in their judgment in point of law: Rule 13. This rule, which is a substantial transcript of the rule of the Supreme Court upon the subject, is but a declaration of the law as established by decisions too numerous to cite. It seems, however, not out of place to call attention to the emphatic remarks upon the subject in Kensington Turnpike, 97 Pa. 260" court="Pa." date_filed="1881-02-24" href="https://app.midpage.ai/document/in-re-kensington--oxford-turnpike-co-6236831?utm_source=webapp" opinion_id="6236831">97 Pa. 260, and Keller’s Road, 154 Pa. 547" court="Pa." date_filed="1893-01-03" href="https://app.midpage.ai/document/kellers-private-road-6241475?utm_source=webapp" opinion_id="6241475">154 Pa. 547. One reason for the rule is that the certiorari does not bring up anything but the record, of which the evidence is no part. It follows that all of the assignments of error not specifically noticed must be dismissed.
The order is affirmed; the costs of this appeal to be paid by the appellants.