Road in Hempfield Township

16 A. 738, 122 Pa. 439, 1888 Pa. LEXIS 621

• Court: Supreme Court of Pennsylvania
• Decided: October 22, 1888
• Docket: No. 23
• Status: Published

Opinion

Opinion,

Mr. Justice Paxson :

In this case the learned judge below referred the report of the jurors back to them “ to agree upon the damages sustained to parties by said road, and to mark upon the draft the improvements, and especially the barn and corn crib of George W. Crushore, and report what releases you have procured from the landowners.” It is settled that a report may be sent back to the viewers, to note the improvements, or to correct errors or omissions: In re Road in Springdale Township, 91 Pa. 260; Boyer’s Road, 37 Pa. 257; Potts’s Appeal, 15 Pa. 414.

If the jurors in this case had confined themselves to what they were directed to do, there would have been no difficulty. They did not do so, however, but appear to have regarded the reference back to them as a roving commission. While they noted the improvements, they also, without any authority from the court, changed the location of the road, thus making it in part, at least, a new road. It is well settled that the authority of the viewers is limited by the terms of the order. The jurors having exceeded their authority in this instance, their report must be set aside.

I notice, also, that in the order of final confirmation the width of the road was not fixed. By the fourth section of the act of 1836, it is made the duty of the court, at the time they approve the report of viewers allowing a road, to direct of what width the same shall be opened: Pitt Township. Road, 1 Pa. 356; Road to Ewing's Mill, 32 Pa. 282. The special action of the court on the subject is necessary in every case. If it be fixed and indorsed by the clerk, under a general rule of court, it would be erroneous: Road in Norriton Township, 4 Pa. 337; Shaefferstown Road, 5 Pa. 515.

It was error to confirm the amended report, and to this extent:

The proceedings are reversed.