Roaring Creek Road , 11 Pa. 356 ( 1849 )

The opinion of this court was delivered by

Burnside, J.

This case comes before us on certioraris, issued to the Court of Quarter Sessions of each of the said counties.

The road laid out is attempted to be supported under the 26th section of the general road law of 1836 (Dunlop, 642), which provides that “ Roads upon and along a line which divides two adjoining counties, may be laid out, altered, and vacated in the manner provided in the case of other roads, except that the Court of Quarter Sessions of each county of the said counties shall appoint three of the viewers, and that a report, as aforesaid, shall be made in the said courts respectively, and that the said counties shall otherwise have and exercise concurrent jurisdiction therein.”

The centre of Roaring Creek is conceded to be the division line between the counties of Northumberland and Columbia: a turbulent stream, crooked in its course, and through a rough country, rising near the Bear Gap, and running to the north branch of the Susquehanna river. The road laid out by the viewers is on different sides of the creek, generally from twenty to thirty rods from the stream, ont of the wet ground, along the first bench of the hills which bound the creek. It neither begins nor ends on the line between the two counties, and only touches the county line where it crosses the creek at right angles.

The first question in order, that the case presents is, whether this is such a road as comes within the provisions of the road law before recited ? We think it is not. Hence, the whole proceedings are irregular and void. It is not a road upon and along the division line of the counties. It is a road part in Northumberland and part in Columbia county. It is in no part upon and along the line of the counties. It does not come within the 26th section of the general road law, the only part of the general road law that relates to this case. The roads contemplated to be laid out, as this road was, under the 26th section before recited, are roads laid out on the division line between the counties, the half of the breadth of the road in each county. The line of the counties is the centre of the road. Although this case does not require it, there is another error on which I will express an opinion. The authority of viewers is derived from the road law, and from the order issued by the Sessions in pursuance of the law. The order from the Sessions of Columbia county, under the seal of the court, to three viewers appointed in that county, paid no regard to the 26th section of the road law. It took no notice of the joint proceedings which that section directs, nor that the viewers were to act in conjunction with the viewers appointed by Northumberland, nor of the proceedings in Northumberland.

This error went beyond a clerical mistake. The order was the mandate of the court under their seal. But we are satisfied that where a stream like Roaring creek is the line between two counties, and where the road is to cross, sometimes on one side and sometimes on the other, there is no provision in the general road law how such a road is to be laid out.

It is not a case in which the court can exercise a concurrent jurisdiction. Either may appoint six viewers, and lay out a road within their jurisdiction, and on their own side of the stream; or the legislature may, if they see proper, have a state road laid out along the creek, crossing it as often as the viewers deem it beneficial to the public.

This was not a road on the county line. The attempt in Northumberland county to vacate it, was irregular; as, if it had been a road laid out on the county line, it could only be vacated by the joint viewers of both counties.

The court were right in setting that review aside, as the proceeding was irregular. We set aside the view of both counties, and leave the parties where they were before they commenced.

The order of the Sessions confirming the road set aside in both counties, and the report of the viewers set aside.