In re Vacation of Public Road , 11 Pa. Super. 232 ( 1899 )

Opistioít by

Rice, P. J.,

Viewers are to have regard, not only to the distance, but also to the best ground for a road, the injury to private property, and as far as practicable- the desires of the petitioners : Act of June 13, 1836, P. L. 551, sec. 2. If they keep within the limits of their authority as to the terminal points, the presumption is that they did their duty in the selection of the route and had due regard to all those things which the statute mentions. If it be alleged as a fact, that they did not have due regard to them, the authority to inquire into the matter is in the quarter sessions, and, in the absence of flagrant error, manifest on the face of the proceedings, their finding is conclusive. Spear’s Road, 4 Binney, 174, rules the point.

Upon the principle omnia preesumuntur rite esse acta, the presumption is that the viewers were qualified for appointment, although the order is silent on the subject, and on appeal no one can be heard to allege the contrary.

As to the objection that the report fails to show that notice was served on the landowners, and that the viewers endeavored to obtain a release of damages from one to whom no damages were awarded, the case of Road in S. Abington, 109 Pa. 118, is a controlling authority. “ The presumption is that the requirements of the statutes have been complied with by the viewers, and therefore it is not necessary specifically so to state in the report unless specifically required by the act regulating the subject.” This language was quoted with approval in In re Melon Street, 182 Pa. 397. See also Road in Kingston, 134 Pa. 409, Road in Sterrett Township, 114 Pa. 627, 633, and Road in North Franklin, 8 Pa. Superior Ct. 358.

The law regarding the noting of improvements, which is required by the act of 1836, was thus stated by Justice Tjrunkey, in Bellevernon Road, 15 W. N. C. 232: “ When the viewers fail to make note of the improvements the report may be sent back for that purpose, but the court ” (quarter sessions) “ is not bound to send it back. In this court, when nothing appears to indicate the existence of improvements, it will be presumed there were none, for the statute does not command a note that the land is unimproved. But such presumption may be repelled by the assessment of damages and other matters, and then the omission to note improvements is fatal (Road from Buttonwood Lane to Green Street, 13 S. & R. 445).” So, it has been held, that, if the viewers state in their report that they have noticed the improvements in the draft, this rebuts the presumption that there wei’e none, and in such case the omission to note is fatal: O’Hara Township Road, 152 Pa. 319; Leet Township Road, 159 Pa. 72. It is plain, therefore, that tins provision of the statute is not unimportant nor merely directory. The objection that it was not complied with was fairly raised in the court below, and the defect ought to have been corrected there, as it might easily have been: Potts’s Appeal, 15 Pa. 414. There is as- strong a natural inference that this road passes through improvements as there was in the Bellevernon case. The fact that on the draft there are the names of the owners of the land and lines indicating their boundaries is not sufficient. “ Mere boundary lines are not improvements but fences erected upon them, and buildings, clearings; etc., upon the lands inclosed 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: ” Leet Township Road, supra.

The termini of a projected road are the only means of identifying it. They describe the proceedings and limit the authority of the viewers. Whilst it has been said that absolute mathematical precision is not required yet all the authorities hold it to be indispensable: (1) that there be reasonable certainty in defining the points where the road shall begin and end, and (2) that the road as laid out by the viewers shall begin and end, substantially, at the points designated in the petition: Road in Lower Merion, 58 Pa. 66; O’Hara Township Road, 152 Pa. 319; Cassville Borough Road, 4 Pa. Superior Ct. 511. The point of beginning mentioned in the petition is “in the public road leading from Blairsville Intersection to Cokeville along the eastern side of the right of way of the West Penn Railroad on the lands of Mrs. Sarah Gray.” This left a wide margin for the viewers, if, as was asserted on the argument, Mrs. Gray’s land extends for 1,000 feet along the right of way mentioned. Their report is equally indefinite in describing the point of beginning, and as to the other terminus they simply say that it is in “ the center of a public street or road, being the terminal point mentioned.” If either terminus be fixed by the viewers with certainty, the other may be ascertained by retracing the line by its given course and distance: Bean’s Road, 35 Pa. 280. This, however, would not remove the objection to the inclefiniteness of the petition, and in any future proceeding this ought to be avoided.

The point of ending designated in the petition and order is “ in another public road in the said village of Blairsville Intersection near the station of the Pennsylvania Railroad.” As we have already said, the points of beginning and ending designated in the petition and order limit the authority of the viewers. “To go beyond them is to exceed the authority. When once the viewers cut loose from the order and go outside of it, the whole identity of the proceeding is lost: ” Road in Lower Merion, supra. The proposed road was to end at a point near the station in a public roach What public road ? The order does not state. Surely it cannot be urged that this was left discretionary with the viewers. If it was to be determined by nearness to the station then one would suppose — -looking at the order in this case only — that, when the viewers had reached a point in a public road leading directly to the station, they would not be expected to cross the road, leaving that point in the rear, extend the road nearly 800 feet further and end it at a point much farther distant from the station. In order to explain this apparent discrepancy it is necessary to go outside this record and examine the petitions and orders in the vacation proceedings instituted at the same time. Looking at these we can see that the laying out of this road is part of a general plan to do away with dangerous railroad crossings ; but laudable as is the object we are constrained to hold that the record of this proceeding to lay out a road is not self-sustaining, as it ought to be, and that in the particulars referred to, the defects are not less serious than those held to be fatal in O’Hara Township Road, supra. See also Trickett on Roads, 27.

If the court had fixed the width of the road at the term at which the report was filed, the omission to enter a formal nisi approval at the same time would not have been an error of which those who filed exceptions, and were accorded a full hearing before final confirmation, could complain: Beigh’s Road, 23 Pa. 302; McConnell’s Mill Road, 32 Pa. 285; Delaware County’s Appeal, 1 Pa. Superior Ct. 204. But no action whatever was taken by the court at the first term. The report was not confirmed nisi, according to the usual practice, nor has the width of the road ever been fixed by special order. If there is anything well settled in the law it is, that the width of the road must be fixed by the court, and the report must then lie over until the next term before it can be finally confirmed. The special action of the court on the subject is necessary in every case; a general rule of court is not sufficient: Road to Ewing’s Mill, 32 Pa. 282; Hempfield Township Road, 122 Pa. 439; Fermanagh Road, 1 Pa. Superior Ct. 534; Road in North Franklin, 8 Pa. Superior Ct. 358. Nor can it be done at a later term by a nunc pro tunc order which shall take effect as if made at the time of confirmation nisi: Road to Ewing Mill, supra; Road in Lackawanna, 112 Pa. 212. It is plain, therefore, that the appellant’s fifteenth exception (eleventh assignment) should have been sustained, and that the final order of confirmation must be reversed and set aside. It is suggested that instead of setting aside the entire proceedings we should send the case back with directions to designate the width of the road. We need only say in answer to this suggestion that this is not the sole irregularity in the proceedings, and in view of the many complications that would arise, we think it safer to follow the precedents in Road in Lackawanna, 112 Pa. 212, Road Case, 3 W. & S. 559, and Road Case, 4 W. & S. 39.

Neither the report nor the order confirming it is conditional within the true spirit and intent of the rulings in Lathrop Township Road, 84 Pa. 126, O’Hara Township Road, 87 Pa. 356, and Road in Benzinger Township, 115 Pa. 436, as explained in Road in Londonderry, 129 Pa. 244. When there is necessity for a public road and the only valid objection to the confirmation of the report laying it out is, that the expense of the construction of a bridge across a railroad cut will be too great for the township to bear, we see no good reason why the railroad company, having such an interest in the proposed improvement as has the Pennsylvania Railroad in these proceedings may not be permitted to remove the objection by undertaking to bear the expense. If after the performance of this undertaking is adequately secured, the court confirms the report unconditionally, we cannot say that any law would be transgressed.

We remark, however, that such undertaking ought to be unconditional. The obligation ought not to be made to depend upon the action of the county commissioners, which they may or may not take after the report has been confirmed. As the proceedings must be set aside for other reasons this is all we need say upon the ninth and twelfth assignments.

The order of confirmation is reversed and all the proceedings are set aside.