In re Private Road

Opinion by Rice, P. J., The rule of the court below provides as follows: “ Five days’ notice of the intended application for the appointment of viewers to lay out public roads in townships, shall be given to the [230] county commissioners or the county solicitor, and to the township supervisors, and in case of a private road, to the owner of the land.” Is it necessary that the record shall show affirmatively that notice was given as prescribed by the rule of court? We think not. The rule is a good one, but the fact that it has been complied with is not one of those jurisdictional matters — (like notice of the view and assessment of damages: Road in Plum Creek, 110 Pa. 544; Private Road in Redstone, 112 Pa. 183)— the omission of which from the record is fatal on appeal. The doctrine omnia prsesumunter rite esse acta applies. See Road in Derry, 11 Pa. Superior Ct. 232, and cases cited. A certiorari issued on an appeal from an order in a road proceeding brings up for review only what was brought up by certiorari before the passage of the Act of May 9, 1889, P. L. 158, namely, the record of which the evidence forms no part. This has been ruled repeatedly. In Kirk’s Appeal, 28 Pa. 185, it was said: “ The objection is.that no notice was given of the meetings of the viewers. That objection was heard and disposed of in the court below. It is a question of fact which is not the subject of review here. No bill of exceptions exists in such a case.” In a late case our brother W. D. Porter said: “We take it for granted that every objection made to a road report- and overruled by the quarter sessions, and which is, in its nature, capable of being proved, is untrue in point of fact, unless the contrary appears from the record. In such cases we have before us nothing but the record proper, of which neither the testimony, nor the recital of fact in the opinion filed in the court below is a part: Schuylkill Falls Road, 2 Binney 250; New Hanover Road, 18 Pa. 220; Duff’s Private Road, 66 Pa. 459; Sadsbury Township Roads, 147 Pa. 471; Keller’s Private Road, 154 Pa. 547; ” Roches’s Private Road, 10 Pa. Superior Ct. 87. See also Manheim Road, 12 Pa. Superior Ct. 279. But aside from this, we are not convinced that the court committed error even if we may look into the opinion and review the decision upon the facts there stated. The question is not whether the court may ignore the rule, but whether noncompliance with it may be waived by the party and is waived by failure to object to the appointment of the viewers within a reasonable time after notice thereof. It is to be observed that [231] notice of the time when the petition will be presented is not a statutory requirement. If it were, a different question would be raised. The appellant had due notice of the view and ample opportunity to raise the objection, if he had any, before the expense of the view was incurred. The objection should have been made promptly. Under the circumstances, it not appearing that he suffered any substantial injury by reason of the omission to' comply with the rule of court, the appellant’s conduct may fairly be regarded as a waiver. The reason for this conclusion, as stated in the opinion of the learned judge of the court below, is sound, and is of frequent application in all kinds of proceedings. As was said in a case where the objection was to the qualifications of one of the viewers: “ A man cannot reserve such an objection while he awaits the chances of a favorable report, and use it after he finds the report against him: ” Hill Townroad, 18 Pa. 288. We find no error in this record which would justify reversal. Therefore the order is affirmed.