In re Road in Lackawanna

Mr. Justice Clark

delivered the opinion of the court, March 15th, 1886.

The 4th section of the General Road Law of 18th June, 1836, provides: “ If the court shall approve of the report of the viewers, allowing a road, they shall direct of what breadth the road so approved shall be opened, and at the next court thereafter, such road shall be taken, deemed and allowed to be a lawful public road or highway, or private road, as the case may be.” The width of the road is undoubtedly a matter of which the parties in interest have a right to be informed before the proceedings and final judgment of the court are entered upon record; for, as this court said in the Road in Silverlake, 3 W. & S., 559, a proprietor who would submit to have his land appropriated to a road of twenty feet in breadth, might resolve on a vigorous resistance to one of fifty ; and if the breadth were not indicated, whilst the question of resistance is an open one, how could he determine what to do? The whole proceedings are in fieri and open to exceptions, until the next term after the approval of the report; after that, an exception comes.too late. It has been held; therefore, in many cases in this court, that the width of the road must be fixed at the time of the approval of the report, and that the omission so to do is fatal to the proceedings: Road in Montrose, 4 W. & S., 39; Charleston Road, 2 Gr., 467.

Nor can the width be afterwards fixed at any subsequent term of the court, by an order nunc pro tune; no decree thus made in road cases, can have any validity, excepting, perhaps, under some circumstances, to preserve the regularity of the continuance of unexecuted orders : Ewing’s Mill Road, 8 Cas., 284. The report of the viewers was filed and confirmed nisi at the January Term, 1883, and if the width had then been fixed by the court, and exceptions had not been filed, or a review ordered, at the April term the road reported would have, without more, become a lawful public highway. At the April Term, however, exceptions were filed, and this suspended the proceedings upon the report of the view. The report had only been confirmed nisi, that is to say, unless before the next term of court exceptions should be filed or a review ordered. The filing of the exceptions, therefore, took off this confirmation, and the report remained subject to the further action of the court.

Pending these exceptions, the proceeding for a review was inaugurated, but the application for a review was not in time. The original petition for a view was filed, and the viewers appointed 23d October, 1882; on the 22d January, 1883, the report was filed and confirmed nisi. The next term of the court after the report was the April Term, 1883; but the application for the review was not made until the next June Term. The 25th section of the Act of 1836 directs that a review may be had, provided application therefor be made at 'or before the next term of the court after the report upon the view. When application is thus made a review is a matter of right, but this provision of the Act is mandatory: Road in Indiana County, 1 P. F. S., 296; Franconia Township Road, 28 Id., 316; the proceedings and the report cannot be acted ‘upon nunc pro tunc, so as to avoid this requirement: Road in Reserve, 2 Gr., 204; Baldwin and Snowden Road, 3 Id., 63. The review was therefore wholly unauthorized by law, and the proceedings therein, with the final decree of 1st June, 1885, confirming the same, must be reversed and set aside.

We have nothing remaining, therefore, but the report of the view, and as the width- of the road, reported by the viewers, was not' fixed by the' court as required by law, the record is "incurably defective. The order of 17th June, 1883,-fixing the width, nune pro tunc, as we have airead}* said, cannot be sustained ; the final decree of confirmation entered 24th December, 1883, is therefore erroneous.

We are of opinion that owing to the great complication into which these proceedings have fallen, if the public necessity for this road still exists, the matter should be proceeded with de novo.

The entire proceedings of the Quarter Sessions are therefore reversed and set aside.