Roads in Londonderry Township , 129 Pa. 244 ( 1889 )

Opinion,

Me. Justice Mitchell :

The learned court below' seems to 'have felt constrained to set aside these proceedings .because the findings of the viewers were conditional, and, therefore, illegal and invalid, under the cases of Lathrop Tp. Road, 84 Pa. 126, and O’Hara Tp. Road, 87 Pa. 356. Both of these cases were decided on technical grounds, and should not be held binding except where the same or similar technical defects exist. Without adverting to minor differences between those cases and the present, it is sufficient to note the substantial distinction between proceedings to open a road, in the first instance, and those to vacate an existing road, because it has become “ useless, inconvenient or burdensome.” The latter is usually, as in the present case, a proceeding with two branches, the closing of the old way, and the opening of a new one in its stead. It is of practical importance that the first branch should not be proceeded with so far in advance of the second, as to leave the public, even for a brief interval, without any way at all. This inconvenience has been guarded against by the act of 1836 itself, § 24 of which provides that “ whenever the whole or any part of a road shall be changed or supplied, the same shall not be shut up or stopped, until the road laid out to supply the place thereof shall be actually opened and made.”

This necessarily implies an interval of time between the decree of vacation, and the order to close in fact, for it will rarely happen that the new way will be actually constructed, until it is made certain that the old will be vacated and the new accepted as a substitute.

Examining the reports of the viewers in the light of this provision of the statute, we do not find that they are conditional in the objectionable sense of the cases cited. The finding that the road “ has become useless, dangerous, inconvenient, and burdensome, and ought therefore to be vacated,” is certain and absolute; and the further report that the said vacation shall take effect when the overhead bridge on Burd street shall be ready for use, does no more than identify the new road which is to be substituted for the one vacated, and put into express words the direction as to the time of actual closing, which would otherwise have followed as an implication of law, from the section of the act of 1836 above quoted. This is a matter under the entire control of the court, by withholding or postponing the issue of the order for closing, until satisfactory evidence is presented that the time fixed alike by the report of the viewers, and by the statute, has arrived. There is nothing, therefore, in tins provision of the reports which affects the regularity of the proceedings, or which need prevent the confirmation of the reports, and the making of decrees of vacation of the roads as recommended therein.

It is-not intended by our opinion or action in these cases to infringe in any way upon the discretionary control of the court below over proceedings of this nature. In one of the cases there were no exceptions of any kind filed to the proceedings ; and in the other, no formal exceptions, but only a petition to revoke the appointment of viewers. The learned judge in setting aside the proceedings put his reasons on the record formally as part of his order, and the case has been argued by counsel for both appellants and appellees, as if the reasons were regularly before us for review. We have assumed, therefore, that the court as well as the parties desired a decision on the case as thus presented. In reversing the orders, therefore, the extent of our decision is that the proceedings are regular on their face, and the reasons assigned on the record for setting them aside are not legally sufficient. If any other objections to confirmation exist, the court as to them will be entirely untrammeled by our present action.

Orders setting aside proceedings reversed, and records remitted for further proceedings according to law.