Stowe Township Road , 1902 Pa. Super. LEXIS 249 ( 1902 )

Opinion by

Rice, P. J.,

The order for a rereview was not made by the court of its own motion but upon a petition of inhabitants and taxpayers, amongst whom was this appellant. Therefore, the decision in Upper Yoder Township, 129 Pa. 640, has no application. Under the act of 1836 the imposition of the expense of a rereview upon the petitioners is proper.

The petition for the rereview was not in the alternative, and the brief of counsel referred to in the second assignment of error was not part of it. If the petitioners did not desire a rereview after the disposition of the exceptions to the view, they should have withdrawn their petition or taken some action indicating their wish to do so. After taking the chances of a favorable report they cannot say with good grace that the appointment of the rereviewers and the continuance of the order were without their knowledge and consent and adverse to their interests. We find no error or irregularity in the orders which are the subjects of the third and fourth assignments of error.

A general rule of court requiring viewers to report whether in their opinion the damages ought to be paid by the petitioners or the county involves no surrender of the power conferred on the court by the Act of February 24, 1845, P. L. 52, sec. 4. The manifest purpose of the rule is, not to delegate to the viewers the power and duty of conclusively determining whether there is such public necessity for the road as to warrant the payment of damages by the county, but to obtain the opinion of the viewers as an aid to the court in forming a correct judgment upon that question. A report that in the opinion of the viewers they should be paid by the county is not binding on the court, but the approval of the report conclusively implies that the court has performed the duty imposed upon it by the act of 1845.

A certiorari in a road case brings up nothing but the record and there is nothing in this record to impeach the finding of the rereviewers, which is in accord with the reports of the viewers and the reviewers, as to the necessity for the road. The question is not before us, upon the merits.

It was not within the jurisdiction of the rereviewers to fix the width of the road, but the viewers recommended that the width be fixed at thirty-three feet, and this was the width fixed by the court when it confirmed the report nisi. The rereviewers report and recommend “the same road, with its courses and distances as reported by the viewers in this case.” There is, therefore, absolute certainty as to the basis upon which the damages were assessed. Having adopted the plan reported by the viewers which was on file in the very case, we are of opinion that the omission to attach a copy of it to their report is not a fatal defect. The ninth and tenth assignments are overruled.

Possibly the court of quarter sessions may in its discretion refuse confirmation of a report of viewers when it does not affirmatively appear that the provisions of the Act of April 26, 1850, P. L. 595, relative to the duties of surveyors, have been strictly followed, but where the report contains all that is required by the act of 1836, and is so full and precise as to enable the supervisors to locate and open the road with absolute certainty, as is the case here, it will be held sufficient on appeal. See Road in Herrick and Ararat Townships, 16 Pa. Superior Ct. 579. Finding no error in the record, the assignments of error are overruled and the order is affirmed.