Rostraver Township Road

21 Pa. Super. 195 | Pa. Super. Ct. | 1902

Opinion by

Rice, P. J.,

1. As the act of 1836 does not expressly require the township to be named in the petition, order to view or report of viewers, the omission to name it is not cause for reversal of the order of confirmation where the termini of the proposed road are so precisely described in the petition, and the road itself is so precisely described in the report of viewers, as to leave no room for doubt as to its location. This question has been at least twice decided by the Supreme Court in the way above stated. In Road in Bellevernon, 15 W. N. C. 232, Mr. Justice Trttnkey, speaking for the court, said: “ A road may be so precisely described and the circumstances such that the omission to name the township where it is located would be harmless, and as the statute does not require the township to be named, the omission is not cause for reversal.” Again, in Road in South Abington, 109 Pa. 118, where, as in- this case, the petition represented that the petitioners w.ere inhabitants of a certain township, naming it, and that they labored under great inconvenience for want of a public road to lead from one well defined point to another, both being in public places, but not stating in what county or township these points were, the Supreme Court held that this was not a fatal omission on certiorari. Mr. Justice Clark, who delivered the opinion, said: “In view' of these plain recitals, and of the court having taken cognizance, we must presume, as a fact, that the route of the road is within the limits of the jurisdiction. In an ordinary road proceeding, in the quarter sessions, we cannot require that degree of technical accuracy, which must be observed in criminal pleadings in the same court.” Accordingly a specification, alleging error in .overruling an exception based on the omission to name the county or township in the petition, order to view and report of viewers, was overruled. These decisions were followed by us in Manheim Township Road, 12 Pa. Superior Ct. 279. They are conclusive of the question raised by the first assignment of error.

2. It is true, as alleged in the second exception, that the name Pittsburg, McKeesport and Youghiogheny R. R. Co., this appellant, as an owner of land crossed by the proposed public road does not appear in the report, nor, we may add, in the draft attached to their report. But in order to declare this to be a fatal omission we must assume that the said company is an owner of land crossed by the proposed road. This fact does not appear in the record proper, and was not brought upon the record for purposes of review by alleging it in an exception. Where the proceedings in a road case are regular on their face and an exception alleges a fact, to establish which proof outside the record is required, and the exception is overruled, it must be presumed on appeal to this court that the question of fact was correctly decided by the court below. We are compelled so to presume because the certiorari brings up nothing but the record, of which the testimony is no part. The rule is very clearly stated in Roche’s Private Road, 10 Pa. Superior Ct. 87. See also Diamond Street, 196 Pa. 254, and Fifty-Fifth Street, 16 Pa. Superior Ct. 133. The rule is so well established as not to require the citation of other authorities. It follows that the second assignment of error must be overruled. The principle applying to it applies equally well to the third, fourth and fifth assignments, since all of them raise questions of fact, the decision of which by the court below is final, and therefore not the subject of review. With regard to the necessity of setting forth in the report of viewers that notice was given and how it was given, we may appropriately add the following quotation from the opinion in Road in South Abington, supra: “ Whether what has heretofore been said in this court, as to the essentiality of record evidence of notice, has resulted from the adjudication of cases, arising under statutory provisions of a local and special character we cannot say, but we are clear in our convictions now, that such a requirement cannot be fairly inferred from any provision of the general law, or of the act of 1845, under which this case is to be considered.”

8. It seems to us unnecessary to discuss the question whether or not there is a presumption that there are improvements on the land through which the road passes which were not noted in the report of viewers or the draft attached thereto. For even if it be conceded that the report was defective in that particular, it was not incurably so. The objection not having been raised in the court below, it cannot be raised here. This question was very fully considered in Road in Upper Darby Township, 15 Pa. Superior Ct. 652, and we need not go over the ground again.

We find no error in this record which would justify a reversal. This being so, we would not be warranted in entering such judgment even if, as was suggested in the argument, the principal petitioners for the road have lost their interest in the proceedings and are no longer desirous to have the road opened. The statutory remedy in such a case would seem to be the adequate one. But we are not called upon to discuss that question.

All the assignments of error are overruled and the order is affirmed.