15 Pa. Super. 652 | Pa. Super. Ct. | 1901
Opinion bv
Two questions are presented by this record: 1. Are the provisions of the Act of Assembly of June 13, 1836, P. L. 551, sec. 3, which require the report of viewers relating to the opening of a road, to note “ briefly the improvements through which it may pass ” complied with, when in the draft accompanying the report the words “ improved land ” are written in various places so as practically to include each separate tract through or along which the road is laid out ? 2. If such a réport be not a sufficient compliance with the act of assembly, can the defect be taken advantage of after confirmation, when no exceptions were taken thereto in the court below ?
1. In the report of viewers there are two references to the character of the land. First the statement is made, “ All of the land through which the said road passes being improved land,” and second, the statement, “We hereunto annex a copy or draft of said road laid out, stating the courses and distances and noting briefly the improvements through which the same passes.” The draft accompanying the report contains ten separate in
It was said in Leet Township Road, 159 Pa. 72, by the present chief justice: “ It is true that the names of the owners of the land through which the road passes are written thereon, and there arfe 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 enclosed 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
2. This defect, however, was not excepted to in the court, below, although other exceptions were filed by the appellant upon which a hearing or an opportunity to be heard was had.' Can advantage be taken of it now ? It cannot be said to be. incurably fatal, for, if the attention of the court below had been-called to it, the report could have been referred back to the: viewers for amendment.' It is not like the case where the termini in a petition for a road are not definitely specified.- Such: a defect is incurable and vitiates all subsequent proceedings,’ because the supervisors can have no definite guide in opening the road. In North Franklin Twp. Road, 8 Pa. Superior. C-t.: 358, it was said: “ 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.” See also Derry Township Road, 11 Pa. Superior Ct. 232, and Road in Sterrett Township, 114 Pa. 627, in which it is said: “ The tenth specification assumes as a fact that there are improvements along the line of the proposed road. There is nothing on the record to show that there are any, and, if there were, the objection comes too late after final confirmation of the report.” We are not unmindful of what is said in O’Hara Township Road, supra, in which it was said: “ The objection, that it was too late to file exceptions after final confirmation, is without merit. These exceptions are to matters appearing on the face of the record and,