Morrow v. Commonwealth

• Decision Date: 01 January 1864
• Citation: 48 Pa. 305
• Parties: Morrow versus The Commonwealth.
• Court: Pennsylvania Supreme Court

Page 305

48 Pa. 305

Morrow versus The Commonwealth.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Allegheny county.

COPYRIGHT MATERIAL OMITTED

R. & S. Woods, for plaintiff in error.

Marshall & Brown, for defendant.

The opinion of the court was delivered by AGNEW, J.

In the leading features of the charge of the court below we see no error. It has been settled, if anything can be, that a road once laid out by the proper officers, under an opening order, can be altered only by a new proceeding under the Road Law. The act of the supervisor is official, and from motives of public policy necessarily final, until changed or annulled in due course of law. It has been repeatedly held that his authority under the opening order is exhausted by his action upon it, and neither he nor any one by his authority can change or obstruct the road as thus laid out, although not laid upon the ground selected by the viewers. Any other principle would lead to innumerable and endless disputes: Holden v. Cole, 1 Barr 303; McManrite v. Stewart, 9 Harris 322; Furniss v. Furniss, 5 Casey 15; Schuylkill County's Appeal, 2 Wright 459.

But it was not strictly accurate to say if the road was never laid out, or used with the acquiescence of the supervisors, as locus in quo, then the jury should be governed by the view. This implies that a mere user with such acquiescence would be competent to change the route located by the viewers, although the road had not been opened by the supervisors under the order. Looking at the whole charge, it is not probable the learned judge meant to convey this impression, yet a jury might have derived it from the language used.

The defendant's first point asked an unqualified instruction that the plaintiff could not recover, if the fence was not on the road as located by the viewers. This would have involved a decision by the court of the facts as to the actual location, which belonged to the jury, who might have found it to be on the road laid out by the supervisors, though not upon the surveyed route. There was no error in returning a negative answer.

Nor was there error in the answer to the second point. The court affirmed it, unless the road had been actually laid out there. It is true the court used a double negative to express the affirmative, but the qualification meant nothing more than that the point was affirmed, unless the fact assumed in it was not true.

We have no means of testing the accuracy of the answer to the...