Road in North Franklin Township, 8 Pa. Super. 358

8 Pa. Super. 358 | Pa. Super. Ct. | 1898

Opinion by

Rice, P. J.,

The report of viewers approved nisi at August term, 1896, recommended that the width of the road be fixed at fifty feet, but the record, as made up at that time, failed to show, that the court made any determination as to the width, except such as might be implied in the approval of the report. No exceptions were filed, however, and at the succeeding November sessions the report was confirmed absolutely. In December of the same year an order to open issued, and two months later the appellant petitioned the court to take off the confirmation and allow her to file the following exceptions nunc pro tunc : -

“ 1. It does not appear in the report of viewers or otherwise that application was made to the owner of the land through which the road passes for release of damages.

“ 2. The record does not show that notice was duly served on the owners, through whose land the road is laid out, of the time and place fixed for the assessment of damages.

“ 3. It does not appear from the record that the viewers considered the question of damages to the exceptant at all, though the road passes for a considerable distance through her lands.

“ 4. Though the petition for said road states that one of the termini of said road is in the suburbs of Washington, Pa., and therefore in a populous district, the improvements along the' entire route of the road are not properly noted in the report of viewers, or in the draft accompanying it.

“ 5. The land of your petitioner is erroneously described in said draft as belonging to ‘Stevenson heirs.’ In December, 1897, she was permitted to amend her petition by inserting therein, as an additional reason for striking off the confirmation, the following exception:

‘“6. The record fails to show that there was any special action or decree of the court fixing the width of said road.’ ”

Upon the presentation of this petition a rule to show cause was granted. Answers were filed by parties interested in which it was alleged, inter alia, that the representative of the petitioner was present at the view, and that prior to the presentation of the petition the road was opened throughout its entire length pursuant to an order duly issued by the clerk of the court. A replication was filed by the petitioner, depositions were taken as to some of the matters of fact involved in the exceptions, and after hearing the court discharged the rule. Five days later, on motion of counsel for the petitioner for the road the court made this decree:

“ And now, January 24, 1898, the court being satisfied that at August sessions, 1896, when the report of viewers in this case came before it for approval, the court orally directed the clerk to enter a decree approving the report and fixing the breadth of the road at fifty feet, but a question being now raised as to whether the record as made up by the clerk sufficiently shows the action of the court fixing the breadth of said road, it is ordered and decreed (to the end that the record may be made to show fully and correctly what the court actually did in the premises), that the docket entry made by the clerk of the action of the court at August term, 1896, be and the same is amended nunc pro tunc, so as to read as follows: ‘August term, 1896. Report of viewers approved and the road directed to be opened at the breadth of fifty feet.’ ” On the same day the petitioner appealed and has assigned for error (1) the discharge of her rule; (2) the refusal to permit her to filé exceptions nunc pro tunc; (3) the decree above quoted.

The duty of viewers appointed under the local Act of March 30, 1859, P. L. 309, as to assessing damages and obtaining releases from land owners is substantially the same as that prescribed by the Act of February 24, 1845, P. L. 52. It has been held under the latter act that the omission of reviewers to report damages in favor of a party is equivalent to a finding that he will sustain none: Road in Kingston, 134 Pa. 409. See also Road from Point-No-Point, 2 S. & R. 277. Nor is the mere omission of the viewers to report that they endeavored to obtain releases fatal: Road in South Abington, 109 Pa. 118, and cases there cited. The presumption that the viewers did their duty will prevail unless there is something on the face of their report from which an inference to the contrary may legitimately be drawn, as in North Union Township Road, 150 Pa. 512, or the fact be established by evidence. There is nothing on the face of this report to prevent the presumption from arising and the case is not before us for review upon the evidence. This is all that need be said concerning the first and third exceptions.

The second exception was withdrawn on the argument, and the fifth was not pressed. It has no merit and need not be discussed.

The act of ’1859, supra, provides that “a draft or plot of the location to be filed by the clerk with the papers in the case,” shall accompany the report. Nothing is said as to noting the improvements. Granting, however, that the provision of the act of 1836'is in force in Washington county, the omission to note the improvements was not an incurable defect. If exception had been duly taken, the court might have referred the report back for correction: Towamencin Road, 10 Pa. 195, 198; Potts’s Appeal, 15 Pa. 414; New Hanover Road, 18 Pa. 220; Hempfield Township Road, 122 Pa. 439. As soon as the objection was raised the viewers made a supplemental- report curing the defect, and this was before the court when the rule in question was considered and disj)osed of. Under these circumstances the court committed no error in refusing to strike off the confirmation on this ground: Road in Sterrett Township, 114 Pa. 627.

The fourth section-of the act of 1836 provides that, if the court approve a report of viewers, it shall direct of what breadth the road so approved shall be opened, and at the next court thereafter the whole proceedings shall be entered on record, and thenceforth such road shall be taken, deemed and allowed to be a lawful public highway. The breadth of the road is to be fixed by the court, not by the viewers. This cannot be done by a general rule of court, and the court is not bound by their recommendation. A very plausible argument might be made to show that the approval of their report without more might be construed as an adoption of their recommendation. It seems to have been so held under the act of April 6, 1802: Road in Aston Township, 4 Y. 372. But a stricter rule was laid down in Road to Ewing’s Mills, 32 Pa. 282, and it may therefore be considered as settled that if the record does not show a special order fixing the width of the road the proceedings will be reversed upon appeal taken within the statutory period after final confirmation. After that time the presumptions in favor of the proceedings of courts of record ought to prevent one, who knew of the proceedings, and raised no objection until after the road was opened, from alleging on appeal that it is not a legal road.

If we are correct in the foregoing conclusion, the amendment of the record so as to make it conform to the fact was not prejudicial to any right of the appellant; and that the courts of record have power at the common law, and independently of any statute, to make such amendments is well settled: 2 T. & H. Pr. 2190-2195; Herring v. Philadelphia, 1 Walker, 4, and cases there cited; Com. v. Silcox, 161 Pa. 484.

Where a person affected with notice of the proceedings from the beginning has allowed the time for having them reviewed on appeal to expire, he cannot accomplish the same object by moving the court to strike off the order of confirmation and then appealing from the refusal of the court to grant his motion: Adams’s Township Road, 130 Pa. 190; In re Road in Salem, 103 Pa. 250; Road in Wilkins’s Township, 5 Cent. Rep. 701.

All the assignments of error are overruled and the appeal is dismissed at the costs of the appellant.