Road in Herrick & Ararat Townships , 1901 Pa. Super. LEXIS 114 ( 1901 )

Opinion by

Smith, J.,

The specifications of error, in this case, relate to very little which this court can examine.

Questions one and two, in the appellant’s statement of the questions involved, have relation to matters of fact, viz: (1) Was there due proof of the notice required by law; (2) Whether there was due proof of such an agreement as would estop the appellants on a point in controversy. These questions were decided by the court below on the evidence produced by the parties; and as that evidence is not part of the record, we are without power to determine its sufficiency.

Question three, “ Whether land appropriated by a water company for a reservoir can be taken from the company for conflicting highway purposes,” requires little discussion. It is well settled that a corporate franchise is a form of private property, and, like other private property, may be taken for public use, under the conditions fixed by law: In re Melon Street, 192 Pa. 331; Phila. & Gray’s Ferry Pass. Railway Company’s Appeal, 102 Pa. 123. Whether, in the case before us, these conditions existed; whether a water company had been duly incorporated, and its charter recorded “in the county where its chief operations are to be carried on,” making it “from thenceforth a corporation for the purposes and upon the terms named in its charter; ” whether such a corporation had appropriated for public use the land on which the road complained of was laid, at a time when it could lawfully do so; and whether such use would be materially impaired or abridged by the opening of the road, are questions of fact which it was the province of the court below to determine. The matters which they embrace are involved in the eighth exception below, the overruling of which is the subject of the fifth specification; the exception asserting, as ma!!or of fact, that the land taken for the road “ has already been appropriated for a public use, under the right of eminent domain, by the Uniondale Water Company, for the purpose of a reservoir.” This cannot be determined as a question of law; nor can we review the conclusions of fact, in the premises, reached by the court below.

Question four, arising from the ninth specification, is based on the supplemental exception below, that the report of the viewers “fails to show that the survey and location of the road was according to the true meridian, as required by the act of assembly.” The statutory provision on this point is that contained in section 3 of the act of June 13, 1836; this directs that when viewers make a report laying out a road they “ shall also annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements through which it may pass.”

In the present case, the report describes the first course as “ south 44 degrees west as the needle now points (the magnetic variation being now about 8 degrees).” No surveyor would be at a loss to locate the course from this description. After the Act of April 26, 1860, P. L. 696, had stood on the statute book for thirty-five years, Mr. Justice Clark, in discussing the essentials of a report, said: “It is required that the viewers’ report shall state particularly, ‘first, who of them were present at the view; second, whether they were severally sworn or affirmed; third, whether the road desired be necessary for a public or private road;’ also, that the viewers shall ‘annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements through which it may pass.’ These are the requisites of a report, as defined by the act of 1836, and they do not differ materially under the act of 1845:” Road in South Abington Twp., 109 Pa. 118. In the case before us, the report contains all these requisites, and contains matter to rebut the presumption that in establishing the course of the road the viewers did their duty.

The record, in this case, shows a petition, an appointment of viewers, an order to view, a report by the viewers, laying out a road, with a draft attached, and an order of confirmation; all of which are in due form. These are all that we can consider. Allegations of errors, omissions and irregularities, not appearing therein, but resting on extrinsic evidence, present questions of fact for the consideration of the court below. Their determination below is final, and cannot be reviewed by this court, since the evidence on which it is based is no part of the record and is therefore not brought before us by the appeal. This has been so often held that it ought not to be necessary for us to repeat it.

The record being free from error, the order of final confirmation is affirmed, at the cost of the appellants.