Road in Sterrett Township

Opinion, Mr. Justice Hand: This is a petition “ to vacate.....part of a public road .....laid out by authority of law and opened in part: ” See act of assembly, May 8, 1855, P. L. 422. The portion sought to be vacated is that portion of the said road “ lying between Hay street and Wood street, in the village of Wilkinsburg.” The allegations are that the portion sought to be vacated is “ useless, inconvenient, and burdensome.” The petition sets forth specific facts and reasons for the application. Viewers were appointed and made their report and state that they “ find said portion useless, inconvenient, and burdensome, and unnecessary for the accommodation of the public ; ” they further find specific facts corroborative of their opinion and recommendation that it be vacated. Exceptions were filed to this report, but none of them deny the facts found by the viewers. The exceptions are wholly to the jurisdiction of the court, and state conclusions of law, or inferences, or technical exceptions to the proceedings. It is true the sixth exception is “ the findings of the report are not sustained by the evidence,” but what finding or in what respect we know not. The action of the court upon the exceptions was to sustain the first exception which was to the jurisdiction, and set aside the report of- the viewers. The assignments of error are that the court erred in sustaining the exception to the jurisdiction, and in not confirming the report and vacating the road as prayed for. The first exception covers the whole case and is as follows : “ This court has no jurisdiction. That portion of Sterrett township which embraces the road was incorporated into the borough of Wilkinsburg, by proceedings at No. 40 March Sessions 1887, of this court, before the report of viewers in this case. The act of May 3, 1855, P. L. 422, regulating this proceeding, provides : That this act shall not apply .....to any street, lane or road, within any incorporated city or borough.” [237] Ill sustaining this exception the court erred.. The learned judge very properly states in his opinion that the petition cannot he sustained under the provisions of the act of June 18, 1836. He also very properly decides that the petition when filed was warranted and covered by the act of May 3, 1855, because it was then a proceeding to vacate a road wholly within a township. The court, however, concluded that the creation of the borough of Wilkinsburg transferred the jurisdiction from the Quarter Sessions to the councils of the borough, and gives this effect to the act of 1855, because of the creation of the borough and the transfer of the part of the road sought to be vacated from the territory of the township to that of the borough. That this effect would be produced if the whole or any part of the original road which was opened was included within the borough may be conceded, for if that were the case then the act of assembly of May 10, 1871, P. L. 704, as construed by this court, would not apply. It would come within the language of this court in Greenwich Township Road, 11 Pa. 188, where they say there is no act which would authorize such a proceeding where the road is in part opened. But wo have seen that this defect was remedied by the act of 1855, which expressly provides for vacating a road opened in part. We have then, jurisdiction conferred upon the Quarter Sessions when the petition was filed, the creation of the borough ordinarily ousting the jurisdiction by the proviso of the act, and the law relating to boroughs, but eo instante when the jurisdiction would be ousted, saved by the act of 1871. The act of 1871 gives jurisdiction to the Quarter Sessions in Allegheny county of streets in boroughs never opened. That such an effect would necessarily follow from the act of 1871 will be seen from the fact that when this portion of the road sought to be vacated became wholly a street in a borough as distinguished from a road in a township, the street was wholly under the jurisdiction of the borough under the borough act, but such jurisdiction, it being of a whole unopened street, comes expressly within the act of 1871, and the objection that this is not a street “ never opened ” falls to the ground as a fact. While it was a part of the township road, this might be true, the remainder of the road being opened; but under the peculiar facts of this case the jurisdiction which [238] would have been lost was saved by the act of 1871. It may be argued that this view is dividing a road into two parts which originally was laid out as one continuous road, but this is what is always done by the creation of a borough. The jurisdiction of the borough over the streets, as well as those portions of the roads leading into it which are wholly within the borough, as of after erected streets, is exclusive. Except for the act of 1871 it is admitted that the borough had exclusive power to vacate this piece of road, and it is for this reason alone that the proceedings were quashed. If the jurisdiction was lost on the instant of the incorporation of the borough, for the same reason the jurisdiction was kept by the act of 1871 which controlled the streets of the borough. The repeal of the township laws over streets within the territory of the borough brings in the application of the laws governing the borough. And why is this not a reasonable issue of this case ? If the borough had not been created, this piece of road would have been vacated: now that it is created, the same result is produced by the borough laws, and of a piece of road wholly within its territory. This view of the case is in entire accord with the. case of North Canal Street Road, 10 W. 851, and Road in Greenwich Township before cited, for as will be seen the only error of the court below was in not giving proper effect to the act of 1871, which avoided the logical conclusions of the cases cited. The order of the Quarter Sessions setting aside the report of the viewers is reversed; the exceptions filed to said report are dismissed and the report confirmed; the costs to be paid by the exceptants. On February 18, 1889, on a motion for a re-argument, the following opinion and order were filed. Pek Ctjkiam: The basis alleged for a re-argument in this case is that the decree of the court was delivered under a misapprehension of fact, that only the unopened part of the road, as originally laid out, lies within the borough of Wilkinsburg. Whether this is true or not, the record “referred to” is no part of this case, and has not been printed. If it was brought within the record [239] and found to be true, it would only disclose that a wrong reason was given in that part of the opinion for the judgment. The fact remains that under the act of 1871 the court of Allegheny county has jurisdiction “to vacate the whole or any part of any street, etc., laid out in any borough incoiporated therein, in case the same has never been opened or used by the public.” The language of this act covers this case, and gives within the boroughs the like powers that are given over public highways in the townships, so far as this case is concerned. The facts assumed in the former opinion rendered it unnecessary to construe the whole of the act of 1871, or to consider its effect as affording to the boroughs of Allegheny county the same remedy given to townships by the act of 1855. A full consideration of that question would disclose the truth that the technicality upon which the road in Greenwich township was decided, and which gave rise to the subsequent legislation of 1855, does not exist in the act of 1871. The remark relating to that case referred only to the assumption of the court below, that the act of 1855 did not apply. The spirit of the act of 1871 is to give the same remedy in Allegheny county that was given by the act of 1855. It is only necessary to give the reasonable construction that the language, “ in case the same has never been opened or used by the public,” refers to “any part of any street” as well as to “the whole,” and give the same effect expressly stated that the “ confirmation of the report,” vacating “part of such street shall have like effect,” to make it evident that the necessary power is given to vacate the portion of the street in the case before us, which the viewers reported should be vacated. The language of the act of 1871 differs materially from that in the acts of assembly which were under consideration in the case of the road in Greenwich township. As intimated in our former opinion the merits of the case require the vacation of this piece of road, and both the spirit and letter of the act of 1871 authorize it. The application is denied.