23 Pa. Super. 170 | Pa. Super. Ct. | 1903
Opinion by
The report of the viewers, appointed to vacate and supply a portion of a public road in Sewickley township, was confirmed absolutely February 9, 1901. From this order no appeal was taken. September 15, 1902, the supervisors of roads in
Unless the reasons to quash were fundamental and jurisdictional, the order of December 20,1902, overruling them, cannot be considered here, because the confirmation absolute from which no appeal was taken would be conclusive. The appellants allege, however, that their reasons are based upon facts which appear of record and which establish that the court had no jurisdiction to entertain the petition and confirm the report of the viewers. The court undoubtedly had the power to entertain the motion to quash and the appeal from the order overruling that motion is in the nature of a certiorari and brings up the record for our consideration: Road in Dunbar Twp., 12 Pa. Superior Ct. 491; Crescent Twp. Road, 18 Pa. Superior Ct. 160.
The motion to quash was based upon three distinct grounds:
1. “ The termini, both of the supplied road and the vacated road, are not fixed and described with reasonable certainty, either in the petition, draft or report of viewers, and said termini are vague and uncertain.” The petition sets forth “ that a public road has long since been laid out in said township, leading from Marchand to Cowansburg, a portion of which road, beginning at a point in the said road opposite the north end of the coke ovens of the Penn Gas Coal Company in said township and ending at a point where the said public road crosses the property line of the Penn Gas Coal Company, your petitioners conceive has now become useless, inconvenient and burdensome to the inhabitants of said township.” Assuming that the terminus a quo is sufficiently definite, as was practically admitted by the appellant at the argument, it may be admitted that the terminus ad quid might be either east or west therefrom. In the report, however, and in the draft accompanying the report the latter terminus is rendered absolutely certain. Beginning at the point in the road described opposite the north end of the coke ovens of the Penn Gas Coal Company and near the bank of the Big Sewickley creek, the viewers describe by courses and distances the part of the road to be vacated, so as to reach, with
2. The third reason upon which the motion to quash was based is, “ It does not appear from the report of viewers that the portion vacated had become or was useless, inconvenient or burdensome to the inhabitants of said township, and for that reason this court had no jurisdiction or authority to decree a vacation thereof.” Section 18, act of June 13, 1836, provides: “ The courts aforesaid shall, within their respective counties, have authority, upon application to them by petition, to inquire of and to change or vacate the whole or any part of any private or public road which may have been laid out by authority of law., whenever the same shall become useless, inconvenient or burdensome, and the said courts shall proceed therein by views and reviews in the manner provided for the laying out of public roads and highways.” The averment contained in the petition for vacating is in accordance with the provisions of the act but the report of viewers contains the ground upon which they recommend the vacation of the road, which is as follows : “We are of the opinion that the same is becoming useless and inconvenient on account of the construction of a coal tipple and railroad siding by the Penn Gas Coal Company.” If the petition had contained the averment that a portion of a public road was becoming or was about to become useless, inconvenient and burdensome, we think there can be no doubt that the court would have no jurisdiction to entertain the petition and appoint viewers thereunder simply because the act expressly defines the conditions under which the court shall have jurisdiction in the premises. When, therefore, the report of the viewers finds
3. The fourth reason upon which the motion to quash was based was : “It does not appear from the record in this case that the notice required by the Act of May 2, 1899, P. L. 176, sec. 1, was given to the supervisors of Sewickley township.” This is not such a jurisdictional defect as would compel the court to quash the proceedings. There is no denial of the fact that the required notice was given, but simply that it does not appear from the record to have been given. The report of the viewers expressly states that “ due notice of the view was served on the county commissioners and the several supervisors of roads in Sewickley township.” The word “ due ” is one of wide significance and has different meanings. One of its meanings is, “ suitable, lawful, sufficient, regular,” and, in the absence of an express allegation that no lawful notice was served upon the supervisors, we would be slow to hold that, because the written notice required by the act referred to was not filed among the records that, therefore, the proceedings “looking to the opening and construction of new roads for public use,” would be void from the beginning. This, however, is not a proceeding looking to the opening of a new road in the sense in which we think the term is used in the act referred to, but, inasmuch as this question is not necessarily involved herein, we do not pass authoritatively upon it. In any event, the failure to comply with the provisions of this act are, by the terms of the act itself, only “ sufficient grounds for an application to set aside whatever proceedings may have
Inasmuch as the terminus ad quid in the original petition is indefinite and the report of the viewers fails to show an existing condition which warrants the vacation of the road complained of in the petition as being useless, inconvenient and burdensome, the order of the court below overruling the motion to quash is reversed, the order confirming the report of viewers vacated and set aside and all the proceedings quashed.