Old Tacony Road

Opinion by Portee., J., The revision of that part of the confirmed plan of the city of Philadelphia, which included the portion of the Old Tacony road involved in this proceeding, was duly authorized by the ordinance of March 29,1887, and the confirmation, on April 28, 1890, of the revised plan, which struck a portion of the street — 447 — from the plan of the city, worked a legal vacation of the part of the street thus omitted : Wetherill v. Pennsylvania Railroad Company, 195 Pa. 156; Carpenter v. Pennsylvania Railroad Company, 195 Pa. 160 ; Tabor Street, 25 Pa. Superior Ct. 355 ; Butler Street, 25 Pa. Superior Ct. 357. The property of the appellants abutted directly upon the part of the street so vacated, and if they were entitled to damages for such vacation, that right accrued and they had an available remedy on April 28, 1890. Lynford Knowles, one of the appellants, on May 21, 1895, filed in the court of quarter sessions a petition for the appointment of viewers to assess the damages and benefits arising from the vacation of the street, and the court, on May 29, 1895, appointed the viewers, as prayed for. The proceedings before this jury of view were long delayed and, although no order of court was made continuing the jury from term to term, the report was not filed until April 2,1896. The report when filed awarded to the several appellants damages for various properties, abutting upon the Old Tacony road and owned by the respective appellants; and assessed benefits against the Philadelphia & Trenton Railroad Company equal to the whole amount of the damages awarded, except $200, which amount was assessed as a benefit against the property of John F. Manning. The railroad company and Manning, respectively, filed exceptions to the report, and the court, on October 3,1896, sustained the exceptions and set aside the report of the jury. After the end of the term at which the decree had been entered setting aside the report of the jury of view, viz : on November 12, 1896, on motion of the attorney for the petitioners, who are now these appellants, the matter was referred back to the same jury of view. The jury, on December 3, 1896, filed a second report, and on the nineteenth of the same month filed a supplemental report, awarding damages to these appellants, among others, and again assessing benefits against the Philadelphia & Trenton Railroad Company and John F. Manning, respectively, in amounts which were exactly equal to the aggregate of the assessment of damages. The railroad company and Manning again filed exceptions to both the second report and the supplement thereto. The court, on December 23, 1897, entered a decree sustaining the exceptions and setting — 448 — aside the report of the jury of view. Lynford Knowles, the appellant, on February 21, 1898, presented a petition praying the court to reopen the decree of December 23, 1897, and again refer back the report to the viewers, and, on March 17, 1898, the court made an order refusing to grant the prayer of this petition. No appeal was taken from this order and neither the making of the order, nor any action of the court prior thereto is now assigned for error. The appellants then seem to have slumbered for over seven years, and nothing further was done in the proceeding until April 25,1905, when Lynford Knowles, the appellant, presented a petition praying the court to “ amend its decree entered in this matter on December 23, 1897, by striking out therefrom that part thereof which orders the setting aside of the report of the jury of view and by instead thereof ordering that the said report be referred back to the jury of view, for the determination of the damages suffered by your petitioner and by other property owners by reason of the vacation of Old Tacony road and the benefits, if any, to any property owners by such vacation, and the assessing of such damages against the city of Philadelphia and against property owners, if any, whose land is benefited by such vacation.” The court, upon presentation of this petition, granted a rule to show cause why the decree should not be amended as prayed for. The city filed an answer to this rule, setting forth the former proceedings in the case, the nature of the statutory right which the petitioner was seeking to enforce, the long delay which the petitioner had suffered to elapse since the making of the final decree, and denying his right to the relief now sought. The court, after argument, discharged the rule to show cause why the decree should not be amended, which action is now the foundation of the first specification of error. The manifest purpose of the petition was to induce the court to strike down its order of December 23, 1897, setting aside the report of viewers, and to vacate its order of March 17, 1898, refusing to refer the matter back to the jury of view for further proceedings. If the refusal of the court to vacate the orders mentioned was a definitive decree, which prevented the appellants from further proceedings in the court below, and from which an appeal would lie, then it is manifest that the — 449 — barrier which really prevented further proceedings in the court below and which was actually the final decree was to he found in the orders which it was sought to 'vacate. The order of May 25, 1905, discharging the rule to show cause why the or--der'of December 28, 1897, should not be amended and the matter referred back to the same jury of view, left the appellants in exactly the same position which they had occupied at all times subsequently to March 17, 1898. The order of December 23,1897, setting aside the report of the jury of view, struck down all inchoate rights which any person might have acquired under the findings of that jury, and with the report went all the proceedings before the jury. The order of March 17,1898, refusing to refer the matter back to the viewers, was a dis.tinct and unequivocal denial of any right of the present appellants to proceed further before that jury of view; they could then do nothing further in the court below, for they had suffered one full term to elapse, without any action whatever, after the report of the viewers had been set aside, before even making their application to have the matter referred back to the same jury. It is not necessary, in this case, to determine with exactness whether the right of the appellants to have the pro- • ceedings reviewed by an appellate-court arose upon the making of the order setting aside the report of viewers, on December 23, 1897, or upon the making of the order refusing to refer the matter back to the viewers on March 17,1898. There can be no question that the-order of March 17,1898, following as it did the order setting aside the report of viewers, was in that proceeding a final order from which these appellants had the right to appeal. The Act of May 19, 1897, P. L. 67, section 4, limited the period within which they might exercise that right of appeal to six calendar months from the entry of the order. These parties did not exercise that right within the period allowed them by the statute, but, having suffered seven years to elapse, they attempted to resurrect that dead right,by petitioning the court below to vacate the orders which had turned them out of court. “ The time for reviewing the proceeding has long since expired and that obstacle cannot be surmounted by asking the court to strike off the order of confirmation- and then appealing from the refusal of the court to do so: ” Road in Adams Township, 130 Pa. 190 ; Winter Avenue, — 450 — 23 Pa. Superior Ct. 353; Union Township Road, 29 Pa. Superior Ct. 573. Even if the order of March 17, 1898, had not been a definitive decree,'the appellants having suffered seven years to elapse without taking further steps in the proceedings, and then having attempted to revive them, fifteen years after the right of action had accrued, their long inaction imported an intention to abandon the proceeding, they were not entitled to the order for which they prayed as a matter of right, and the court could in the exercise of its discretion have required them to present anew petition for anew jury of view : Upsal Street, 22 Pa. Superior Ct. 150. The bar of the statute of limitations could, it is true, have been interposed against the right to recover in a new proceeding : Butler Street, 25 Pa. Superior Ct. 357, but for the long delay the appellants alone were responsible. The first specification of error is dismissed. The appellant having failed to induce the court to vacate its orders made many years before and refer the matter back to the same jury of view, for the purpose, as stated in his petition, of “ the determination of the damages suffered by your petitioner and by other property owners by reason of the vacation of the Old Tacony road and the benefits, if any, to any property owners by such vacation,” shifted his position and joined with others, in a petition which’ was presented to the court on June 19, 1905. This petition represented that the first report of the viewers, filed April 2,1896, awarded damages to the several petitioners, respectively, in the different sums in the petition set forth, that these amounts were awarded, to the petitioners respectively, bj*- reason of the damage done to their several individual properties, on Old Tacony road, caused by the vacation of said street, that no exceptions were filed to the said awards so made in their favor, and that the said awards upon the filing of the report of the jury without exceptions became in themselves a complete and final adjudication in favor of the petitioner’s, and against the city of Philadelphia, for the amounts of said awards. The petitioners prayed for writs of mandamus execution against the city of Philadelphia, requiring the payment to petitioners, respectively, of the amounts so awarded by the report, of April 2, 1896. The' court granted a rule upon the city to show cause wlij' the prayer of the petitioners should not be granted, which rule, after argument, was, — 451 — on June 26, 1905, discharged by the court. The discharge of the rule and the refusal of the writ of. mandamus execution is the foundation of the second specification of error. The petition ignored the fact that the first report of viewers, filed April 2, 1896, was, on October 3,1896, set„aside by the court, and that these appellants by their attorney, on November 12, 1896, moved the court to refer the matter back to the same jury. Exceptions had been filed to the report and the court.had jurisdiction, under the provisions of the Acts of June 13, 1836, P. L. 555; April 13, 1854, P. L. 360, and May 3, 1869, P. L. 1247, to sustain the exceptions and set aside the report: In the Matter of the Opening of Wharton Street, 48 Pa. 487; In re Kensington & Oxford Turnpike Company, 97 Pa. 260; Thirtieth Street, 147 Pa. 245; Paschall Street, 81 Pa. 118; Walnut Street, 24 Pa. Superior Ct. 114. The report of a road jury awarding damages is not a final adjudication in favor of those to whom damages are so awarded, nor does it become a debt of record due by the municipality, until it is approved by the court. “ In committing road cases to the court of quarter sessions, which is a court of record, of constitutional origin, and of common-law powers, the legislature manifestly intended that a judicial discretion should be exercised in such cases. ... If a mere registry of the report of viewers had been intended, it would have been made most naturally in the recorder’s office, and no approval of the quarter sessions would have been required, but when a court of record was required to approve, a judicial discretion was implied: ” In the Matter of the Opening of Wharton Street, 48 Pa. 487. The court of quarter sessions, exercising a jurisdiction expressly conferred upon it, set aside the report of viewers upon which this petition for á mandamus execution was supposed to bé based, and as the findings of the jury lacked the approval of the court required by law to constitute a final adjudication of a debt due by the municipality, the learned judge of the court below was clearly right in refusing to award a mandamus execution. The second specification of error is dismissed. The order of the court below is affirmed.