In re Road in McCandless Township

• Decision Date: 09 November 1885
• Docket Number: 54
• Citation: 110 Pa. 605,1 A. 594
• Parties: In re Road in McCandless Township
• Court: Pennsylvania Supreme Court

1 A. 594

110 Pa. 605

In re Road in McCandless Township

No. 54

Supreme Court of Pennsylvania

November 9, 1885

Argued October 27, 1885

CERTIORARI to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1885, No. 54.

This was, in the court below, a petition to vacate a road in McCandless township, which had been laid out and opened in part.

The record shows, inter alia, the following: -- The petition was filed on June 4th, 1884, setting forth that a road, beginning in a public road at Phillip Haas' barn, in the township of McCandless, thence running by various courses and distances to a public road at Adam Keil's gate, where it ends, laid out by order of court, was confirmed at March sessions of the Court of Quarter Sessions, in the year 1883 at No. 4 of December session, 1881; that the said road has been opened in part, to wit: at the eastern end, the part which extends through the lands of Wm. Grubbs and Catherine Netzky's land, and between lands of said Grubbs and Mrs Godfry Netzky, is useless and inconvenient. Petitioners therefore prayed the court to inquire of and vacate the same; and for that purpose to appoint three persons, qualified according to law, to view said road, and make report of their proceedings at the next term of court.

On the same day the court appointed viewers, who presented their report on September 6th, 1884, as follows: "We, the undersigned persons, appointed by the within order of court, to view the road therein mentioned, respectfully report: That, having all been present at the view of said road, August 19th, 1884, and having all been first duly sworn, in pursuance of said order, we have reviewed said road, and that we are of opinion that there is no occasion for such a road, and that the same is not necessary for a public road, and we find, further, that the part opened has become useless, inconvenient and burdensome, and the whole ought therefore to be vacated." On the same day this report was confirmed nisi.

On September 19th, 1884, the following exceptions were filed to the report of viewers.

First. The petition and all subsequent proceedings, including the report vacating the road, are illegal and void, because the Act of Assembly, under which the same have been conducted, does not warrant an order to vacate only, the whole or part of said road; the Act is in the alternative, "to vacate or change," and the order is to vacate only.

Second. Samuel Wallace, one of the viewers, was and is in the case of this road viewed at No. 2, Sept. session, 1883, a petitioner, praying that the same be annulled, or vacated, and is ineligible as a viewer for that reason.

Third. The whole proceeding is illegal, irregular and void, not being warranted by the Act of Assembly in such case made and provided.

Fourth. The report of viewers is not attached to or made upon an order of court, and no order is returned to warrant the view, or report.

Fifth. The petition and report are irregular and void -- especially in that the report does not show that "due legal notice was given of the time and place of the view."

Sixth. The viewer, Samuel Wallace, is also a petitioner in the review at No. 4, Dec. session, 1881, and is ineligible as a viewer for that reason.

To meet the fourth and fifth exceptions, the court, upon petition, ordered the report of the viewers to be referred back for correction. On November 22d, 1884, the amended report was filed and on November 28th, the exceptions to the same were dismissed and the report confirmed.

On December 6th, 1884, on motion of the attorney for the petitioners, the order of November 28th, 1884, was set aside as to the part confirming the report, as being improvidently granted in the same term to which the report was filed. Subsequently, on December 8th, 1884, the report of the viewers was finally confirmed.

On January 11th, 1885, the exceptants presented a petition for a review, representing as follows: That at No. 3 of June sessions, 1884, a petition to vacate a road laid out in McCandless township, from a public road at Phillip Haas' barn to a public road at Adam Keil's gate, was presented to the court, and a view ordered accordingly; that the viewers therein appointed have made report, September 6th, 1884, vacating said road, which was opened in part, and which report, on the 28th day of November, 1884, was confirmed. Your petitioners, residents of McCandless and adjacent townships, further say: That said road, so vacated, is necessary for the public use, and is located on as good ground as can be found in that vicinity, and that it does the least possible damage to land over which it is laid out. They therefore ask your Honors to appoint proper persons as reviewers to review and vacate or change said road between said points, and to make report to your Honorable Court at the next term, according to the Act of Assembly in such cases made and provided, and they will ever pray.

The court refused this petition, entering the following order: -- "And now, January 11th, 1885, petition for review presented in open court, and in the opinion of the court the time being passed for such an application it is refused."

Whereupon exceptants took this writ, assigning for error the action of the court in dismissing the first and sixth exceptions, filed September 19th, 1884, and the order dismissing their petition for a review.

Proceedings affirmed.

A. M. Watson for plaintiffs, in error. -- The first assignment of error is fatal, and the order of court directing the view to vacate only was illegal. Until the Act of May 3d, 1855, was passed, after a view or review of a road had been confirmed, and "the next term after the one to which the report had been filed" had gone by, there could be no proceeding to vacate until the road had "become useless, inconvenient and burdensome." But the latter Act opened the way for a view "to vacate or change the whole, or any part of a road laid out and opened in part," clearly submitting to the viewers the duty to view the road, or the part or parts included in the order, and to vacate or change all of it, or to change a part or parts of the road, and to vacate the part or parts to correspond with such changes as they might make, reporting back either that there should be no road or that it should be improved, changed and vacated. The error committed in this case lies in confounding the Act of May 3d, 1855, with the Act of 1836, sec. 26. It is submitted that the view in this case vacating, under an order empowering the viewers to vacate only, is not what the Act of 1855 authorizes, but a view giving the power to examine and determine whether the road in part opened can be changed to meet the public necessity, so that the report may take in the merits and demerits of the route, and lay the result before the court.

The second assignment raises a fatal objection to the report of viewers in this case, which the court confirmed over exceptions filed, claiming that Samuel Wallace, one of the viewers, was also a petitioner for the review of the same road, at No. 4, December Term, 1881. Wallace was ineligible, and could not be a viewer upon any view of that road: In re May Town Road, 4 Yeates, 479; In re Radnor & Newtown Road, 5 Bin., 612; In re McClaysburg Road, 4 S. & R., 200.

The petition for review was not too late. The Act of Assembly provides that any person interested shall be entitled to a review at or before the next term of court after the report upon the first view, and this he may demand as a matter of right. January 11th, 1885, when the judge refused to appoint reviewers, was in December Term, 1884 (the next term after the report), and the petitioners had the right to the review in the plain words of the Act.

No order or rule of practice could deprive the petitioners of the review, and the refusal of the judge would work positive injustice: Duff's Road, 16 P.F.S. 460; In re Road in Indiana County, 1 Id., 296; In re Road in Franconia Township, 28 Id., 319.

D. M Alston, for defendants in error. -- The first assignment of error is null and void. Neither the Act of Assembly of May 3d, 1855, under which this proceeding was begun, nor the road law in general will uphold it. The said Act of 1855, Purd. Dig., 1501, pl. 35, clearly warrants the Court of Quarter Sessions to issue an order to viewers, to view and report as to whether a road should be vacated or not. We do not contend that the Act is not in the alternative; we submit that it is, but we construe that alternativeness to be as follows: The petitioners can pray to have the road vacated, or they can pray to have...