Clayton's Case , 1 Walk. 527 ( 1877 )

The Supreme Court affirmed the decision of the Court below on March 26, 1877, in the following opinion

Per Curiam.

It does not admit of a doubt that the act of Feb. 11, 1854, P. L. 63, is inconsistent with the 7th section of the General Road Laws of June 13, 1836, P. Laws 556, and, therefore, that the 7th section is repealed. The act of 1836, requires the appointment of six viewers ; the act of 1854 only three. Under the former damages cannot be assessed, until the confirmation of the report of the viewers has become final. Under the latter they must be assessed by the same viewers, at the time, of the view, and the confirmation of the report cannot be made until the court has considered the damages reported, and decided as to the propriety of payment, and by whom to be paid. Under the former the viewers in locating the road, do not consider the subject of damages specially, but only the question of location and the facts bearing upon it. Under the latter it is made the special duty of the viewers to procure releases of damages from those willing to release, thereby holding out a strong inducement to release in order to obtain the the road ; while under the former petitioners and others most interested are left to seek payment of damages after they have procured the location. There are other inconsistencies, but these are sufficient, and to all may be added that the cost is reduced, the act of 1854, limiting the number of viewers to three, of whom one must be a surveyor.

Order affirmed in each case.

Note. — There is no right to compensation for taking vacant land for a public road, unless given by statute.

Township of East Union vs. Comrey, 2 Sch. Leg. Rec. 289.