In re the Road from Willson's Farm to Kunkel's & Ulrich's Farms

Dauphin County Court of Quarter Sessions

In re the Road from Willson's Farm to Kunkel's & Ulrich's Farms

1 Pears. 170

CourtDauphin County Court of Quarter Sessions

DecidedSeptember 10, 1859

StatusPublished

This text of 1 Pears. 170 (In re the Road from Willson's Farm to Kunkel's & Ulrich's Farms) is published on Counsel Stack Legal Research, covering Dauphin County Court of Quarter Sessions primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Road from Willson's Farm to Kunkel's & Ulrich's Farms, 1 Pears. 170 (Pa. Super. Ct. 1859).

Pincite

Opinion

By the Court.

The foundation of all road proceedings is the petition. If that is radically wrong, it is difficult to have [171]*171any of the subsequent parts correct. The petition asks for a road “ from the farm of the Willsons on the Middletown turnpike to Michael Ulrich’s and Benjamin Kunkel’s.” It does not mention the township or any further locality; that is attempted to be cured, and perhaps is so, by the order naming the township, which is gathered by the clerk from the indorsement. From aught that appears in the petition, the farms of Ulrich and Kunkel are private points, and, therefore, not proper terminations for a public x >ad. The report, however, shows that the view terminated at a public road at the line between those farms. It may admit of question whether a defect of that kind in the petition can be cured by the report. We will assume for the present that it can. The viewers commenced at a farm belonging to Willson, Rutherford & Co. Whether this is the place intended by the petitioner, we are at a loss to determine; but it might be shown by the depositions that the point thus described was generally known as the fai m of the Willsons, and, therefore, was the point intended. That has not been proved. The greatest, and what is probably the incurable defect is that the petition asks for the laying oxit of a road on one used and occupied by the travelling public for neaidy fifty years. If'such is the road to be traversed by the viewers, we have no authority to lay out one on top of it. It is to all legal intents as much a public road as it ever can be. If the road thus used is established by prescription, it is as good as if laid out by an order; if a private road, that fact should have been stated. Neither the petition, order, report, or any testimony shows that this was a private, but the petition describes it as a public road long in use. The proceedings are consequently irregular, and must be set aside. Had our attention been called to the form of petition, we would have refused to appoint viewers.

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

By the Court.

The foundation of all road proceedings is the petition. If that is radically wrong, it is difficult to have [171]*171any of the subsequent parts correct. The petition asks for a road “ from the farm of the Willsons on the Middletown turnpike to Michael Ulrich’s and Benjamin Kunkel’s.” It does not mention the township or any further locality; that is attempted to be cured, and perhaps is so, by the order naming the township, which is gathered by the clerk from the indorsement. From aught that appears in the petition, the farms of Ulrich and Kunkel are private points, and, therefore, not proper terminations for a public x >ad. The report, however, shows that the view terminated at a public road at the line between those farms. It may admit of question whether a defect of that kind in the petition can be cured by the report. We will assume for the present that it can. The viewers commenced at a farm belonging to Willson, Rutherford & Co. Whether this is the place intended by the petitioner, we are at a loss to determine; but it might be shown by the depositions that the point thus described was generally known as the fai m of the Willsons, and, therefore, was the point intended. That has not been proved. The greatest, and what is probably the incurable defect is that the petition asks for the laying oxit of a road on one used and occupied by the travelling public for neaidy fifty years. If'such is the road to be traversed by the viewers, we have no authority to lay out one on top of it. It is to all legal intents as much a public road as it ever can be. If the road thus used is established by prescription, it is as good as if laid out by an order; if a private road, that fact should have been stated. Neither the petition, order, report, or any testimony shows that this was a private, but the petition describes it as a public road long in use. The proceedings are consequently irregular, and must be set aside. Had our attention been called to the form of petition, we would have refused to appoint viewers.

Cite This Page — Counsel Stack

Bluebook (online)

1 Pears. 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-road-from-willsons-farm-to-kunkels-ulrichs-farms-paqtrsessdauphi-1859.