Metzler's Road , 1869 Pa. LEXIS 232 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

On the 20th of March 1868 viewers were appointed to view and vacate a private a road, returnable to the next term commencing on the 4th day of May 1868. The order was issued to the viewers, but nothing done under it until after the meeting of the court on the return-day of the order, when, on application to the court, a substitute for one of the viewers was appointed, who with the other two went upon the ground, viewed and made report, all on the same day, after the term had commenced. No order whatever issued to the new viewer, but he and the other two endorsed their report upon the former order, yeciting it as the authority under which they had acted. Thus, upon an order to Henry D. Altfather, Peter R. Hillegas and Valentine Muller, a report was made by G. N. Smith, Peter R. Hillegas, and Henry D. Altfather. Clearly this is irregular. It has been repeatedly said by this court that the Act of Assembly requiring the order to be executed and returned to the next term must be obeyed; and when the order of view or review has expired before its execution, all subsequent proceedings under it are unauthorized: Road in Reserve Township, 2 Grant 204; Frankstown Township Road, 2 Casey 472; Baldwin and Snowden Road, 3 Grant 62; Heidelberg Township Road, 11 Wright 536. In the present case the time for executing the order had fully expired. The fiction that there are no fractions of a day for judicial purposes, and therefore the view and report having taken place on the return day, should be held good, is not applicable to proceedings such as this. As remarked by Woodward, J. (3 Grant 63), “ There is no provision for notice to parties interested in road-views and orders, but the getting up a petition to the court. The appointment of viewers and their visiting the ground, are circumstances of notoriety to put all parties on their guard, and that they may know when to attend court to be heard.” Now it is very clear that when no view has been had on the ground until after the meeting of the court on the return-day of the order, and when all persons interested therefore had a right to conclude that the order had been abandoned, it furnishes no notice whatever to the persons interested. This is a certiorari and we have held that we cannot go out of the record to inquire into facts. If it were even true, therefore, as a fact that the party most interested in this case was told that the viewers had gone to the ground to make a view, it would not justify this court in supporting a proceeding so grossly irregular as this, and so calculated to put parties off their guard. To hold that the viewers need not act till the return-day, and one of them declining, a viewer can be appointed after the meeting of the court, and that he and the remaining two may run off two miles or ten, make a hasty view, return and report, all on the same day, would make a dangerous precedent, to be visited upon ourselves hereafter in cases of the most extraordinary character. In addition to this, that one of the viewers should go upon the ground and exhibit, as his warrant to enter upon the private lands of the citizen, an order to another person, presents a laxity not to be tolerated. It is true, the appointment of G. N. Smith is to be found in the record, but when he went to execute his duty he was apparently, to all persons assembled there on the business, devoid of all authority.

For these reasons we must quash the • entire proceeding. Proceedings reversed.