Penn Township Road

The opinion of the court was delivered, November 21st 1870, by Agnew, J. — The viewers in this case laid out a new road between two points on the state road to Eranlcstown, within Penn township, and vacated only about one-half of the state road thus supplied. The remaining half was not vacated on account of its connection with the northern turnpike. There is no doubt this portion is necessary for public use. For this reason we have desired to support the proceeding in the court below if possible. It seemed as if it might be done under the general powers of the court to lay out and annul roads. But a closer examination discloses that this is a question of special authority, and not of general power. The authority of the court over state roads is clearly different from that over county roads, and it would lead to great confusion were we to attempt to eke out the former by a resort to the latter. A state road is a highway laid out by the direct authority of the state, generally between distant places, and •through different counties, to supply a want felt by a large district of country, and which the diversity of local interests is not always willing to supply. It being a creature of special legislation the proceedings to locate, and often the repair and regulation of the road itself, are provided for by the special terms of the act. There is often a great variety in these terms, just as the views of the draftsman of the act, or the special circumstances of the case, may dictate. Hence it is not easy to reduce the system of state roads to uniformity. In consequence of this, and also to prevent local interests and feelings from strangling a state road, or turning it into a cul de sac, the only power committed to the Court of Quarter Sessions is “ to change or supply by a new road the route of any state road which may be laid out by direction of any Act of Assembly .within their respective counties, and thereupon to vacate so much of such state road as shall be supplied.” The power to change or supply by a new road was evidently given to correct mistakes in the original location, and to allow of deviations resulting from accidents, but not otherwise to interfere with the road, either by cutting it asunder, or multiplying its parts. It may, therefore, be changed and supplied at any point by means of a new route, but when this is done it is evident the old route gives place to the new, and the new becomes the state road, and not an independent county road. If the new route were but a county road, it might be vacated by the court, and thus the state road which had been severed by the new route turned into a cul de sac, and the interest of distant places defeated by the local opposition. It is evident also that the legislature did not intend in this authority over state roads to give the power to multiply them. The court may change and supply, but not create a second road. If it could lay out a new route between distant points in the county and leave all of the old route standing except some insignificant part, it might repeat the process until [464] the multiplication of the parts of the state road would become so great it would be difficult to determine how many or how much were the state road. If the part of the state road supplied or a portion of it can be left to stand, it must continue to be a state road governed by the law of its creation, and cannot be vacated except by again supplying a new route. This repeating process upon unvacated portions of the part supplied is clearly contrary to the intent of the law. The principle of the thing as to changing and supplying a new route is well stated in a different case by Lewis, C. J., in Mill Creek Township v. Read, 5 Casey 197: “ The authority to alter a road (he says) is an authority to substitute a new road for an old one, and whenever this is done, the old road so far as it is supplied by the new one is vacated.” The county road system is different from that of the state. In the former the viewers may vacate parts only of the old road, and so return to the court: Loretto Road, 5 Casey 350. Looking, therefore, at the character of a state road as a creature of special legislation, the restraint upon the authority of the court, and the reason for this limitation of power, it is evident we must construe as mandatory the clause in the act “to vacate so much of such state road as shall be supplied.” The order of confirmation of the Court of Quarter Sessions is therefore reversed and modified as to so much of the Erankstown. state road as was not vacated by the viewers, and it is ordered that the entire state road between the terminal points supplied by the new route laid out by the viewers, shall be vacated, and the report of the viewers laying out the new route to supply the same confirmed. It may be added that there is nothing to prevent the court from laying out a new county road over that part of the state road which the views did not vacate. Order and decree as above stated.