Opinion
April 13, 1948.
July 23, 1948.
Municipalities — Roads — Laying out public roads — One terminus only on public road — Partiality of viewers — Maintenance of road — Questions for viewers and lower court — Scope of appellate review — Act of June 20, 1919, P.L. 509.
1. Under the Act of June 20, 1919, P.L. 509, as amended, a public road may be laid out where but one terminus is on a public road.
2. An objection that a public road should not be laid out because maintenance costs will fall upon the township is for the exclusive consideration of the viewers and the lower court.
3. Alleged partiality of the viewers in laying out a public road is for the consideration of the lower court.
4. On appeal from an order of the quarter sessions dismissing exceptions to a report of viewers laying out a public road, the appellate court will take for granted that every objection made to the 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, or by evidence aliunde, regularly submitted previous to exception.
5. On appeal from an order of the quarter sessions entered upon exceptions to a report of viewers laying out a public road, the appellate review is on certiorari; the appellate court will not review the merits, which are exclusively for the viewers and the court below.
6. On appeal from an order of the quarter sessions dismissing exceptions to a report of viewers, the appellate court cannot review the facts, but must confine itself to the regularity of the proceedings.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and FINE, JJ.
Appeal, No. 131, April T., 1948, from order of Quarter Sessions, Somerset Co., Sept. Sessions, 1947, No. 5, in the Matter of Laying Out a Public Road in Middlecreek Township, Somerset County. Order affirmed.
Proceeding upon exceptions by Board of Road Supervisors to report of Board of Viewers recommending that a private road be made a public road.
Appeal dismissed, opinion by BOOSE, P.J. Board of Road Supervisors appealed.
Archibald M. Matthews, for appellant.
Thomas F. Lansberry, for appellee.
Argued April 13, 1948.
This is an appeal of Middlecreek Township from an order of the quarter sessions dismissing exceptions to a report of viewers laying out a public road.
The public road laid out was 2612 feet in length and began on a public highway, ending at the residence of a citizen. It had been a private road, and served three farms and the residents thereof as well as the traveling public. The viewers found and reported that the public interest outweighed the cost of public maintenance, which in this particular case was very slight, since the road had a firm bed, was stoned, and only needed to have the drainage ditches kept open. Initially a low-cost cut and fill of 100 feet would have to be made but could easily be accomplished by the presently used road machinery of the township.
Our review is on certiorari: West Donegal Township Road, 21 Pa. Super. 620; Likar Appeal, 157 Pa. Super. 572, 43 A.2d 388. Any alleged partiality of the viewers is for the court below: Road in Chartiers Township, 34 Pa. 413; and we do not review the merits, which is exclusively for the viewers and the court below: Likar Appeal, supra; Loretto Road, 29 Pa. 350.
The Act of June 20, 1919, as amended, 36 PS 1921, expressly states that a public road may now be laid out where but one terminus is on a public road; and appellant's contention to the contrary must therefore fail.
"When any petition is presented to any court of quarter sessions . . . praying for the appointment of viewers . . ., to view and lay out a public road in any township . . ., such petition, and the report of the viewers thereon, shall not be held invalid for the reason that one of the termini named in the petition or in the report is at a point other than in a public highway or place of public resort, where it appears in such petition or report that the other terminus is in a public road and that the road is one necessary for public travel . . .: Provided, however, That in case one of the termini named in the report is at a point other than in a public highway . . . the finding of the viewers that the road is necessary for public travel . . . shall be subject to the approval of the court of quarter sessions, which may confirm or set aside said finding."
Appellant complains also that the viewers refused it a hearing and a further or adjourned hearing. The viewers' report showed a complete hearing at the view, where all the citizens were heard at length, including the supervisors of the appellant; and that announcement was made that a further hearing would be had if desired, and no request therefor was made.
"That at the time and place of the view a request for a hearing was made and thereupon the viewers heard at length all citizens desiring to be heard, including the supervisors, both pro and con on all matters properly before them for determination; that at the conclusion of that hearing the viewers announced they would grant further hearing if desired, at Somerset or any other suitable location but no requests were made for further hearing, whereupon the viewers considered the view and hearing closed and the same was adjourned."
The exceptions were sworn to and, inter alia, alleged the refusal to grant any hearing. No depositions were taken and no evidence was offered. The exceptions were not self-sustaining, and raised questions of fact not appearing on the face of the record. It must be assumed that this question of veracity was correctly determined by the court below: Rostraver Township Road, 21 Pa. Super. 195; Quemahoning Township Road, 27 Pa. Super. 150. We take 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, or by evidence aliunde regularly submitted . . . previous to . . . decision. The presumption . . . [on appeal] is that all things are right." (Emphasis supplied): New Hanover Road, 18 Pa. 220. See also Spring Garden Road, 43 Pa. 144; Road in Washington Township, 1 Sadler 177, 1 A. 657.
No damages were asked for or allowed. It should be noted that the exceptions failed to disclose either the names of proposed witnesses, or to what they would testify. The actual complaint of appellant is that the viewers should not have laid out the road because maintenance costs would fall upon the township. This question was exclusively for the viewers and the court below: Road in Manheim Township, 12 Pa. Super. 279.
In this type of case we cannot review the facts, but must confine ourselves to the regularity of the proceedings: In the Matter of Church Street, 54 Pa. 353; Likar Appeal, 157 Pa. Super. 572, 43 A.2d 388.
The order of the court below is affirmed at the cost of the appellant.