Commonwealth v. Johnson , 134 Pa. 635 ( 1890 )

Opinion,

Mr. Justice Green :

We think this case was correctly tried by the learned court below. The road which was opened in Jackson township was no part of the road which was laid out in that township by the viewers. It did not extend to the terminal point of that end of the road, and it ran in a different direction from that portion of the road as laid out by the viewers. It is true that the supervisor of Jackson, of the previous year, Chester Brown, did commence the opening of the part of the road in Jackson, on the route as finally completed by the present defendants. But he testifies expressly that he did not finish it, and that it was in fact finished in 1887 by the defendants. It was not until June, 1887, that the completed road was opened and traveled in Jackson township.

This fact, about which there is no real dispute, clearly takes the case out of the doctrine established in Clark v. Commonwealth, 33 Pa. 112; Morrow v. Commonwealth, 48 Pa. 305; McMurtrie v. Stewart, 21 Pa. 322, and kindred cases. They all include the idea that the road, which cannot be changed even to put it upon its true location, is one that has been completely opened and used for public travel. That, of course, was not the case here, nor can the defendants be excused upon the theory of a slight variation to avoid obstructions. There were no such facts here. Doubtless it was unnecessary to have two bridges in such close proximity as would result from building the new one required by the view, but that is a difficulty which could only be remedied by proceedings in the Quarter Sessions to vacate that portion of the road as laid out by the viewers. It would never do to permit supervisors to exercise such authority, and practically override the order of the court confirming a road as laid out by a report of viewers.

The offer to prove an indebtedness of four hundred dollars on the part of the township was properly rejected. It would not follow from the fact of such indebtedness that the township was unable to build the bridge. If it was intended to show such financial inability, the offer of proof should have been broader, and embraced facts necessary to that purpose. But as the township might have had assets sufficient for the payment of the debt, or taxable property enough to raise the amount necessary to build the bridge, the offer to prove the mere fact of the indebtedness was too narrow.

There is no merit in the 'fourth assignment. The road as laid out was not opened at all, and the opening of a wrong road is no defence, because it is not a compliance with the legal duty of the supervisors. In Commonwealth v. Reiter, 78 Pa. 161, we said: “ That supervisors are liable to indictment for neglecting to open a public highway duly laid out in their respective townships is well settled: Graffins v. Commonwealth, 3 P. & W. 502; Edge v. Same, 7 Barr 275; Phillips v. Same, 8 Wr. 197.” The assignments of error are rathe'r numerous, but a careful examination of all of them discloses no error.

J udgment affirmed.