In re Public Road

10 A. 35, 115 Pa. 436, 1887 Pa. LEXIS 334

• Court: Supreme Court of Pennsylvania
• Decided: March 21, 1887
• Status: Published

Opinion

Mr. Justice Trunkey

delivered the opinion of the eourt, March 21st, 1887.

The exceptions filed by the supervisors of the township had so much merit that instead of simply approving the road as laid out by the viewers, the court “ confirmed that the road be opened to a point convenient to the sawmill of Sykes & Caflish and the' other part of the road not to be opened until the further order'of the court.”

It is suggested by the petitioners that all after the word confirmed may be treated as surplusage. But this should not be done in the statutory proceeding for a public road. The court should either unqualifiedly approve or disapprove the road laid out and returned. Unless satisfied of the necessity for the road, under the circumstances, the court may refuse' approval, notwithstanding the favorable report of the viewers.

After a public road has been laid out, approved and entered on record, the duty of the supervisors begins, which duty is prescribed by statute. It is not in the province of the court to condition the approval by an order to open an indefinite part convenient to a saw-mill, and forbid the opening of the other part until further order. Such a conditional approval evidences that the court was of opinion that there was no present necessity for the road as laid out. The court cannot approve a part only. If this order be held valid it is neither more nor less than approval of a part — the order to open the other part may never be made.

The entire road, in the opinion of the court, may be unnecessary, and in that case it matters not that the court should believe a fraction of it necessary, for the road must be considered as a whole.

The order of confirmation, • dated May 27th, 1886, is reversed.