Hibberd v. County of Delaware

Opinion by Rice, P. J., This is an appeal from the orders of the court of common pleas making absolute a rule to show cause why an execution should not issue, and awarding a mandamus. .There is no irregularity apparent on face of the proceedings which would justify a reversal of these orders. The plaintiff having obtained a judgment, the validity of which is not questioned, was entitled to the fruits of it unless the county could show cause to the contrary.. The single reason assigned by the county in resisting the proceeding is that there was not any such opening of the road as is contemplated by the local act of April 12, 1869, P. L. 862, which provides “that the damages to be assessed under the provisions of this act shall not be paid until the road shall be confirmed and actually opened.” The purpose of this statutory provision is manifest. Until actually opened there is a possibility that the road may be “ vacated and annulled upon the petition of a majority of the original petitioners,” etc.: Act of June 13, 1836, P. L. 558, section 19; or if opened in part only it may be vacated by proceedings under the act of May 3,1855, P. L. 422. But. what proof, which an appellate court can consider, is there that the road was not actually, i. e. physically opened prior to the incorpo [208] ration of the borough ? The opinion of the court below in discharging the former rule is no part of the record, and even if it were, the fact is not stated by the learned judge that the road was not physically opened. But it is argued, the road was not confirmed until March 21, 1893; it could not be legally opened until after the expiration of the succeeding June term, and as a matter of fact no order to open was issued; at the same term at which the road would have become a public highway the borough was created; therefore, as the power of the court to order the opening of the road was gone, the whole proceeding, including the assessment of damages, fell. We are of the opinion that the argument is based upon the erroneous assumption that the road did not become a public highway and could not be legally opened prior to the June sessions and without an order of court. It is to be observed,—and we learn this fact from the defendant’s answer—that the report of viewers was filed on October 9, 1891, and the width of the road was then fixed at fifty feet. Exceptions were filed, which were dismissed and the report confirmed on March 21, 1893. It then became a public road and could be opened at any time. The 4th section of the act of June 13, 1836, P. L. 555, provides: “ If the court shall approve of the report of viewers, allowing a road, they shall direct of what breadth the road so approved shall be opened. And at the next court the whole proceedings shall be entered on record and thenceforth the road shall be taken, deemed and allowed to be a lawful public road or highway,” etc. The object of the law is to give the period of a vacation between term and term after the width is fixed by the court, in order to give parties interested an opportunity to file exceptions and to petition for review. Before that period has elapsed the road cannot be opened: Road in Middle Creek, 9 Pa. 69. All parties interested had the full benefit of this provision and availed themselves of it, and even if there was an omission to make a formal order approving the road, at the time the width was fixed, no one has suffered harm, and it is doubtful whether any one could now complain. “ The object of a nisi approval at the first term is to give parties in interest an opportunity to apply for a review, and when at the same term they have applied for and obtained a review, it is of no importance that the qualified approval was not [209] entered of record:" Beigh’s Road, 23 Pa. 302. But what evi dence have we, or what right have we to presume, that the report was not confirmed nisi at the time the width was fixed ? The order of confirmation on March 21, 1893, is without qualification, and being coupled with an order dismissing the exceptions, was in effect an absolute confirmation: (See Beigh’s Road, supra; Gibson and Guy’s Mill Road, 37 Pa. 255) and being un appealed from, every presumption is to be made in favor of the regularity of the proceedings. Whether regular or irregular the validity of the order cannot be brought in question here. We therefore feel warranted in saying that the road then became a lawful public road or highway which the public had a right to have opened unless it was vacated in a lawful manner, and we cannot agree that the subsequent incorporation of the borough ipso facto annulled the proceedings. A formal order to open, which the clerk issues of course upon the final confirmation of a report, is not necessary to complete the proceedings: Neeld’s Road, 1 Pa. 353; Road to Ewing’s Mills, 32 Pa. 282; Road Case, 3 W. & S. 559. Whether the court of quarter sessions would have power to compel the borough authorities to open a road laid out by viewers and confirmed by the court but not actually opened before the incorporation of the borough is a question which we need not discuss. The borough authorities recognized and adopted the road thus laid out and confirmed and directed it to be opened in accordance with the report. Thus every condition precedent to the payment of the damages was fulfilled. South Chester Road, 80 Pa. 370, decides that the court of quarter sessions has not jurisdiction to lay out a road wholly within a borough, which is subject to the borough law of 1851. The decision has no application to a case where the road was laid out and confirmed before the borough was erected. The orders are affirmed.