Road Case

3 Watts & Serg. 559

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1842
• Status: Published

Opinion

Per Curiam.

The second exception is fatal. By the terms of the fourth section of the road law, the width must be fixed when the report of the viewers is approved and confirmed; and there is a substantial reason for it. The same section directs that the proceedings be entered of record at the succeeding court, and that the road be thenceforth deemed a highway; so that the proceedings are in fieri till the next term and no longer, and an exception would afterwards come too late. But a proprietor who would submit to have his land appropriated to a road of 20 feet breadth, might resolve on resistance to one of 50; and how could he determine what to do, if the breadth were not indicated while the question of resistance was an open one ? If it were fixed at the issuing of the order to open, the day of resistance would have gone by. But the issuing of it, is a ministerial and not a judicial act; for where the proceedings are suffered to go on, without exception, to their completion, the’last act of the court is the confirmation nisi; the rest is the business of the clerk. Without throwing open the proceedings to exceptions, after the time for their reception prescribed by the statute, the Quarter Sessions could not interpose nunc pro tunc; and as that would increase the irregularity and disorder in such proceedings, already much too great, we are not at liberty to remit the record, in order to have the defect supplied.

Order reversed, and proceedings quashed.