In re Public Road in Roaring Brook Township

Superior Court of Pennsylvania

In re Public Road in Roaring Brook Township

72 Pa. Super. 447, 1919 Pa. Super. LEXIS 345

CourtSuperior Court of Pennsylvania

DecidedJuly 17, 1919

DocketAppeal, No. 23

StatusPublished

Cited by5 cases

This text of 72 Pa. Super. 447 (In re Public Road in Roaring Brook Township) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Public Road in Roaring Brook Township, 72 Pa. Super. 447, 1919 Pa. Super. LEXIS 345 (Pa. Ct. App. 1919).

Pincite

Opinion

Opinion by

Trexler, J.,

The first report of viewers found that the proposed road was unnecessary. The reasons assigned were as follows : “Taking into consideration that fifty-five resident taxpayers from a total of sixty-three, including the supervisors, are against proposed road, and that said petitioners can now be and are now served by roads leading to said properties, providing said roads leading to said properties are put in condition by said Township of Roaring Brook, also that the cost, maintenance, purchase of lands, together with the fact that said township is now in debt for a considerable sum, said road is hereby refused.” Exceptions were filed and the report was set aside. The court held that the only question before the viewers was the necessity for the road, that the reasons given by the viewers for their finding were such as were not tenable. They were dealing with matters which were not within the purview of the order of the court. Had they been content to report against the road without any comment the matter would assume a different phase, but having stated the reasons for their action the court could consider whether they were such as the viewers could legally base their finding on. We do not think the court erred in setting aside the report. It would be putting the administration of justice in shackles to hold that where on the face of the record, a conclusion reached was founded upon reasons indefensible in law, the court could not interfere and right matters. We find an analogy in license [451]*451cases where the refusal or granting of a license is within the discretion of the court of quarter sessions, and if no reason be given the action of the court is conclusive, but if the judge, granting or refusing the license gives reasons we will consider whether they are valid or not.

The report was set aside and the proceedings referred back to the reviewers for reconsideration and report according to law. The viewers thereupon, without having a hearing of the case at the place designated by the act, turned in the same report as before, finding the road unnecessary but merely omitted the reasons which they had theretofore given. The court held that this was not following its order. The reviewers could not merely recast the report but the reference back was for the purpose of a rehearing on the merits. There is no doubt that under the order of court the duty of the viewers was not merely to amend their form of report. The report being set aside, the viewers were to start afresh. The viewers erred in treating it as if it had been sent back for amendment: Cambria Street, 75 Pa. 357.

The reference back to the same viewers was not improper. The Act of 1911 provides for a permanent board of view and fixes the minimum number at three and the maximum at nine. Necessarily, occasions will arise where the same viewers will be required to consider matters which they had already before them. The act is constitutional : Reber’s Petition, 235 Pa. 622, and Brown’s Petition, 236 Pa. 3.

The objection is urged that the termini in the petition are not the same as in the report. For example, the one terminus fixes the location from the road leading from Springbrook to Elmhurst, while the report calls for a road from Creen Run to Elmhurst. The reference to the plan removes any doubt as to the identity of the road and taking the petition and the plan, no one could have any doubt as to the location of the point referred to. The Act of April 23, 1909, P. L. 142, requires that the petition shall fix definitely the point of beginning and the point of [452]*452ending by giving the exact distance from an intersecting public road and the report and draft upon confirmation shall be certified to the State Highway Department. The purpose of the act is to give that department the information required in order to have a complete system of the roads of the Commonwealth. An examination of the papers in this case shows a substantial compliance with the act. The court correctly found that there was no variance.

As to the objection that the court disposed of the matter after the term to which the report was filed had passed and that no formal continuance was had from term to term, we think it is answered in Barr Township Road, 29 Pa. Superior Ct. 203. A continuance was not required as long as the matter was in the hands of the court for consideration.

The judgment is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

Trexler, J.,

The first report of viewers found that the proposed road was unnecessary. The reasons assigned were as follows : “Taking into consideration that fifty-five resident taxpayers from a total of sixty-three, including the supervisors, are against proposed road, and that said petitioners can now be and are now served by roads leading to said properties, providing said roads leading to said properties are put in condition by said Township of Roaring Brook, also that the cost, maintenance, purchase of lands, together with the fact that said township is now in debt for a considerable sum, said road is hereby refused.” Exceptions were filed and the report was set aside. The court held that the only question before the viewers was the necessity for the road, that the reasons given by the viewers for their finding were such as were not tenable. They were dealing with matters which were not within the purview of the order of the court. Had they been content to report against the road without any comment the matter would assume a different phase, but having stated the reasons for their action the court could consider whether they were such as the viewers could legally base their finding on. We do not think the court erred in setting aside the report. It would be putting the administration of justice in shackles to hold that where on the face of the record, a conclusion reached was founded upon reasons indefensible in law, the court could not interfere and right matters. We find an analogy in license [451]*451cases where the refusal or granting of a license is within the discretion of the court of quarter sessions, and if no reason be given the action of the court is conclusive, but if the judge, granting or refusing the license gives reasons we will consider whether they are valid or not.

The report was set aside and the proceedings referred back to the reviewers for reconsideration and report according to law. The viewers thereupon, without having a hearing of the case at the place designated by the act, turned in the same report as before, finding the road unnecessary but merely omitted the reasons which they had theretofore given. The court held that this was not following its order. The reviewers could not merely recast the report but the reference back was for the purpose of a rehearing on the merits. There is no doubt that under the order of court the duty of the viewers was not merely to amend their form of report. The report being set aside, the viewers were to start afresh. The viewers erred in treating it as if it had been sent back for amendment: Cambria Street, 75 Pa. 357.

The reference back to the same viewers was not improper. The Act of 1911 provides for a permanent board of view and fixes the minimum number at three and the maximum at nine. Necessarily, occasions will arise where the same viewers will be required to consider matters which they had already before them. The act is constitutional : Reber’s Petition, 235 Pa. 622, and Brown’s Petition, 236 Pa. 3.

The objection is urged that the termini in the petition are not the same as in the report. For example, the one terminus fixes the location from the road leading from Springbrook to Elmhurst, while the report calls for a road from Creen Run to Elmhurst. The reference to the plan removes any doubt as to the identity of the road and taking the petition and the plan, no one could have any doubt as to the location of the point referred to. The Act of April 23, 1909, P. L. 142, requires that the petition shall fix definitely the point of beginning and the point of [452]*452ending by giving the exact distance from an intersecting public road and the report and draft upon confirmation shall be certified to the State Highway Department. The purpose of the act is to give that department the information required in order to have a complete system of the roads of the Commonwealth. An examination of the papers in this case shows a substantial compliance with the act. The court correctly found that there was no variance.

As to the objection that the court disposed of the matter after the term to which the report was filed had passed and that no formal continuance was had from term to term, we think it is answered in Barr Township Road, 29 Pa. Superior Ct. 203. A continuance was not required as long as the matter was in the hands of the court for consideration.

The judgment is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

72 Pa. Super. 447, 1919 Pa. Super. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-public-road-in-roaring-brook-township-pasuperct-1919.

Opinion

Related

Cite This Page — Counsel Stack