In re the Vacation & Supply of a Public Road

Mr. Justice Clark delivered the opinion of the court, October 29th 1883. A petition for the view of a public road should designate only the termini, and the order must, in this respect, follow the petition. The route between .the terminal points is exclusively for the viewers; it is their duty to'view the ground, between the points designated in the order, “ and if they shall agree that there is occasion for the road, they shall proceed to lay out the same, having respect to the shortest distance and the best ground for a road, and, in such manner, as shall do the least injury to private property,” &c. If the petition and order may contain one such intermediate point, it may contain many, and as was said in McConnell’s Mill Road, 8 Casey 285, this “ would enable the petitioners to stake out the entire road, before even the jurisdiction of the viewers attached.” The same rule is given in Road in Lower Merion, 8 P. F. Smith 68, and in Catherine Township Road, 26 P. F. Smith 189, and is undoubtedly the correct construction of the Act of 13th June 1836. But, the proceeding now before us is not a view to lay out a new road, it is a view to vacate and supply an old one, between certain points designated in the order. An order to view and vacate a public road is not a matter of right in the petitioners, but of discretion in the court of Quarter Sessions: 8 Watts 172. To move that discretion, it is certainly proper to recite in the petition the particular defects in the present location of the road, and to suggest that it is possible to remedy their defects by selecting another. If the road, as located, should pass over an elevated summit, with a heavy grade, it would certainly be proper to suggest, that by passing around the base, its length [264] would not be increased and the grade might be greatly improved ; or, if the present location is through a swamp, it is proper to suggest that by a particular route designated and described, it is possible to put the road upon dry and solid ground. Indeed the general road law of 1836 requires, that every application to vacate a road, “shall set forth, in a clear and distinct manner, the situation and other circumstances of snch road or highway, or the part thereof which the applicants may desire to have vacated, as aforesaid.” In the present case, the petition is lost and does not form part of the record before us, but the order, which purports, and is presumed, to contain its substantial recitals, sets forth that upon the petition of sundry inhabitants of Ottercreek township, it appears that a road has lately been laid out, between certain points designated, known as the Limber road and that a,part of that road, running in a south-westerly direction, for a distance of about two hundred rods, designated by terminal points, “ was intended to be on the line between the lands of the said J. G. Riley and Henry McMahan on the west of said road and the lands of William Wagerman, J. G. Riley and Henry McMahan on the east of said road, and was intended tobe straight,” but, that the same “is not now on the line between said lands and is crooked;” that the “ petitioners believe that said part of said road should be exactly on tlie line, between said lands, and be perfectly straight between said points, and that the present location should therefore be changed.” A similar representation is then made as to another road, connecting with the Limber road and leading in a westerly direction, a distance of about one hundred and nineteen rods. The prayer of the petition is for the appointment of proper persons to view, lay out and vacate the same according to law. Neither the petition nor the order, in fact, fix any intermediate point; they coutain a suggestion that the roads were not originally located as laid out, and that they should be changed and put where they were originally intended to be, but the prayer is for a view according to law, between the points named. The substantial recitals in the petition, are that the roads are crooked, and that they should be straightened. The order directs the viewers, if they shall agree that there is occasion for the road, that they shall proceed to lay 'out the same, having respect to the shortest distance, and the best ground for a road, &c. as directed by law. We cannot agree with the plaintiffs in error, that the proceedings of the Quarter Sessions, in the respects assigned, are irregular, and the said proceedings are therefore affirmed.