Thomas v. Borough of Hellertown

Opinion by Henderson, J., The corporate authorities of the Borough of Heller-town adopted an ordinance establishing Chestnut Street. The proceeding was under the Borough Act of May 14, 1915. Viewers were appointed pursuant to the provisions of section 2, article II, to assess damages and benefits. Their report was filed October 20, 1919, in the court of common pleas, and was on the same day con [527] firmed nisi. The 12th section of article II provides that notice of the filing of the report shall state that unless exceptions be filed thereto within thirty days from the date of filing, the report will be confirmed absolutely. Section 18 of the same article provides that when the report is filed, the prothonotary shall mark it confirmed nisi, and in case no exceptions are filed thereto, he shall enter a decree that the report is confirmed absolutely. No exceptions were filed to the report of the viewers, and a decree of final confirmation was entered at the expiration of thirty days from the time when the report was filed pursuant to the direction of the statute. A rule was granted by the court on December 8,1919, to show causes why the confirmation should not be set aside and stricken off and the report referred to the viewers for the purpose of filing such report as in their discretion will meet with the facts and circumstances of the case. On February lá, 1921, this rule was made absolute; the confirmation of the report of viewers was set aside together with the report, and the viewers theretofore appointed were directed to view the premises for the purposes in the original order set forth, and to make such report as in their discretion will meet with the facts and circumstances of the case. The basis of the petition to set aside was that the viewers had made a mistake with reference to the property lines of William P. Thomas, William HE. Thomas and C. H. Wettereau, the petitioners for relief. It may well be doubted whether the evidence presented in support of the rule was sufficient to authorize the action of the court. It consisted of the testimony of a surveyor made long after the borough survey locating the street, and as appears from the testimony of the witness, his conclusion was based principally on the assumption that certain stakes which he saw marked the street line. His work does not appear to have been done in cooperation with or in the presence of the borough engineer, and no evidence of any of the borough officials was taken to show where the street lines were as pro [528] vided for by the ordinance and as actually located on the ground. But a more serious difficulty exists in the case, with respect to the authority of the court to enter the order complained of. It is conceded that the proceeding is regular on its face. No objection is made to the validity of the action of the borough in creating the street, nor is any complaint made of the regularity of the method adopted by the viewers in the discharge of their duty. Proper notices were given; the parties in interest were present with their counsel at the time of the view; a plot of the street was exhibited and they were aware therefore of the location of the street and of its apparent relation to their property. They had thirty days from the filing of the report in which to except thereto as provided in the 17th section of article II of the borough law, but they did nothing until nineteen days after the final confirmation of the proceeding, when their petition was filed. In the meantime a term of court had elapsed and their' application was presented to the court sitting at another term than that in which the report was finally confirmed. The procedure for the appointment of viewers and subsequent action with reference thereto is statutory. The law gives parties in interest full opportunity to be heard, and fixes a time beyond which all the proceeding is to be considered completed. The power of the court is not therefore discretionary. As was said in Harris v. Mercur, 202 Pa. 313, the commands of a statute cannot be waived or dispensed with by a court. When a statute fixes a time within which an act must be done, the courts have no power to enlarge it. The question before the court on the original petition was one of fact. It was inquired of by the viewers and a report made thereon. After their report was confirmed, the court was without authority to review their findings and to set aside a record which the law declared to be absolute. It was said by our brother, Porter, In Road in Dunbar Township, 12 Pa. Superior Ct. 491, that the court was without authority to open its decree and consider the [529] merits of the application or irregularities in the proceeding not shown by the record, and numerous authorities are cited in support of that position, to which may be added: William Street, 191 Pa. 472; Harris v. Mercur, supra. The authorities cited by the appellee, O’Hara Township Road, 152 Pa. 319, and North Union Township Road, 150 Pa. 512, were cases in which the objections to the proceeding were based on the record and the court was without jurisdiction to take the action complained of because the statutory requirements had not been met by the actors in the proceeding, but in the case before us, as has been noticed, the record is entirely regular. This was so found by the court below. The undertaking is to avoid the decree by a reinvestigation of the facts passed on by the viewers. It may be as claimed that they made a mistake in regard to the location of the street with respect to the property involved, but the borough has not been heard and the effect of the action of the court would be to reopen the whole subject of the assessment of damages. The purpose of the limitation in the statute was to put an end to inquiry with respect to damages. Such limitations are found in many statutes and the propriety of them is not questioned nor may the courts disregard them. The action of the court was based on what is supposed to be equitable principles, but the petitioners had full opportunity to investigate and act after the report was filed. They are presumed to know, if any person would, the lines of their lots and they had, as appears from their witness, evidence on the ground of the lines of the street. With such information and having passed their day in court, they do not appear to have standing to ask for equitable relief. But the case is regulated by statute and not by equitable principles and the statute speaks in such cases. The order is reversed at the cost of the appellees.