A VIEW
OF
THE LAW
OF
ROADS, HIGHWAYS, BRIDGES
AND FERRIES
IN
PENNSYLVANIA.
BY
WILLIAM DUANE, ESQ.,
AUTHOR OF A VIEW OF THE RELATION OF LANDLORD AND
TENANT IN PENNSYLVANIA.
PHILADELPHIA:
JAMES KAY, JUN. & BROTHER, 183^ MARKET STREET.
PITTSBURGH:—KAY & CO.
1848.
Entered according to the Act of Congress, in the year 1848, by
James Kay, Jun. & Brother, in the Clerk's Office of the District
Court of the United States in and for the Eastern District of Penn¬
sylvania.
CONTENTS
Page
Chap. I. Introductory, - - - - - 13
II. Of State Roads, 15
III. Of the Proceedings for Opening County Roads, 18
Sect. i. Of the Petition for a Road, - 18
ii. Of the appointment of Viewers and
the persons qualified to act as such, 20
hi. Of the View, 24
iv. Of the Report of the Viewers, - 27
v. Of the Confirmation of the Road, 33
vi. Of the Opening of the Road, - 34
vu. Of the Review, 36
vin. Of the Second Review or Re-review, 43
ix. Of Damages for the Opening of Pub¬
lic Roads, 45
x. Of the Laying-out of Roads upon
County Lines, 52
xi. Of Private Roads, 56
IV. Of the Vacating of Roads, ... 64
V. Of Bridges, 75
VI. Of the Removal of Proceedings in Road
Cases to the Supreme Court by Certiorari, 100
iv contents.
Chapter Page
VII. Of Supervisors of Roads, - - 104
VIII. Of Streets and Roads in Cities and Boroughs, 116
IX. Of Turnpike and other Roads made by In¬
corporated Companies, - - - 119
X. Of Lateral Railroads to the Public Works, Î30
XI. Of the Law of the Road, - - - 140
XII. Of Ferries, - - - - 142
XIII. Conclusion, 143
Appendix—Laws relating to the Cumberland Road, 146
TABLE OF FORMS.
Page
Petition for a View for a proposed Road, - - 19
Appointment of the Viewers, 23
Report of the Viewers in favour of the Road, - 30
" " " against the Road, - - 30
Confirmation of the Road, 34
Petition for a Review, - - - - 40
Appointment of Reviewers, - - - - 41
Report of the Reviewers in favour of the Road, - 41
" " " against the Road, - - 42
Confirmation of the Road, 42
Petition for the appointment of Viewers of damages, 49
Appointment of the Viewers of damages, - - 49
Oath or Affirmation of the Viewers of damages, - 50
Report of the Viewers of damages, - - 50
Confirmation of their Report, - - - - 51
Petition for a Road upon a County Line, 52
Appointment of the Viewers thereon, ... 53
Report of the Viewers in favour of the Road, - 54
" " " against the Road, - - 54
Confirmation of the Road, 55
Petition for a Private Road, - - - - 61
Petition for the appointment of Viewers of damages, 61
Petition for a Gate or Gates in a Private Road, - 62
Appointment of the Viewers thereon, 63
Report of the Viewers, 63
Confirmation of their Report, 63
1*
VI
TABLE OF FORMS.
Page
Petition for the Vacation of a Road not opened, - 69
Appointment of the Viewers thereon, - 69
Report of the Viewers, - - - - - 71
Petition for the Vacation of a Road, - • - 71
Appointment of Viewers thereon, 72
Report of the Viewers, - - - - - - 73
Confirmation of their Report in favour of Vacating, 73
Petition for the Vacating of a State Road, - - 74
Petition for a Bridge, 83
Appointment of Viewers thereon, 84
Report of the Viewers in favour of the Bridge, - 85
" " " "a change in the Bed
and Route of a Road near a proposed Bridge, - 86
Certificate of the Quarter Sessions to the County Com¬
missioners, 87
Petition of the County Commissioners for the Inspec¬
tion of a Bridge, - - - - 88
Order of the Quarter Sessions appointing Inspectors, 89
Report of the Inspectors, - - - - 90
Confirmation of the Inspectors' Report in favour of the
Bridge, - - - - - - - - 91
Petition for a Bridge on a County Line, - - 92
Appointment of Viewers thereon, 92
Report of the Viewers, .... 93
Certificate from the Courts of Quarter Sessions to the
County Commissioners, .... 94
Petition of the County Commissioners for the Inspec¬
tion of the Bridge, - - - ... 95
Order of the Quarter Sessions appointing Inspectors, 96
Report of the Inspectors favourable to the Bridge, - 97
Confirmation of their Report, .... 98
TABLE OF CASES CITED.
Page
Abington Township, Case of a road in - - 41
Adelphi Street, Case of ----- 67
Adle v. Sherwood, - - - - - 116, 117
Allentown Road, Case of the - - - 67
Anderson's Ferry Turnpike Co., Commonwealth v. The 123
App's Tavern, Road from - - - 25, 29, 30
Arnold, Commonwealth v. - - - - - 13
Arthurs, Patterson v. - - - - - - 145
Aston Township, Road in - - - - - 29
Bachman's Road, Case of - - - 37, 40
Baker, Ernst v. - - - « - - 60
Baltimore Turnpike, Case of the - 47, 101, 10*2
Berks & Dauphin Turnpike Road Co., Comm. v. - 123
Berlin Road, ------- 37
Bird v. Smith, -142
Bolton v. Colder, - - - - - 141,145
Borough of Reading, Green v. The 49
Bridge over Smithfield Creek, - 79, 80
Bridgewater & Wilkesbarré Turnpike, Road from
the ------- 26, 33
Bryson's Road, Case of 23, 44, 102
Bucks County, Road in ----- 39
Buckwalter's Orchard, Road from - - 40
Carlisle, Road from 43
Carmalt, Commonwealth v. ■ 121
vîii
TABLE OF CASES CITED.
Case of a road in Abington Township,
Adelphi Street, -
the Allentown Road,
Bachman's Road, -
the Baltimore Turnpike, -
Bryson's Road,
the Church Road, -
" Germantown & Perkiomen Road,
Greenleaf's Court, -
the Hellertown Road,
Kyle's Road, -
the Maytown Road,
Neeld's Road, -
Page
44
67
67
37, 40
47, 101, 102
23, 44, 102
37
48
39, 40
26, 44
19, 59
38
26, 59, 61
20, 47, 48, 60
29
a
it
the Newville Road,
Noble Street, -
the North Canal Street Road, - - 35
Orthodox Street, ----- 38
the Radnor Road, ----- 38
Road in the Borough of Easton, - 118
Road from Bough Street, - - 102
" Road from Erie Street, - - - 118
" Road from the Lazaretto, 60
Rutherford's Road, ... 67
Shamokin Road, - - - - 102
the Shefferstown Road, - - - 33, 37
Spring Garden Street, - - - 47, 101
the Strasburg Road, 43
Chambers v. Furry, - - - - - 13, 142
Chambersburgh & Bedford Turnpike Road Co. v.
The Commissioners of Franklin County, - - 81
Church Road, Case of the ----- 37
City of Pittsburgh, In the matter of the district of the 100
Colder, Bolten v. - - - - - 141, 145
Cole and others, Holden u. - - - - - 114
TABLE OF CASES CITED.
ix
Page
Commissioners of Franklin County, Chambersburgh
& Bedford Turnpike Road Co. v. The - - 81
Commissioners of Philadelphia County v. The Com¬
missioners of Spring Garden, - 103
Commonwealth v. The Anderson's Ferry, &c. Turn¬
pike Co., - - - « • * - 123
Commonwealth v. Arnold, - * - - - 13
" i?. The Berks & Dauphin Turnpike
Road Co., - ■ - - - - 123
Commonwealth v. Carmalt, - - - - 121
" v. The County Commissioners, - 49
« Graffius v. The - - - 114,117
" v, The Hanover & Carlisle Turn¬
pike Co., - 123
Commonwealth t?. Miltenberger, - - - - 117
" V» The State Treasurer, - - 123
Cooper v. Smith, 142
Coovert v. O'Conner, - - - * - - 14
County Commissioners, Commonwealth v. The - 49
Curwin, M'Clenachan v. - - - - 120
Duffy, Lauderbonn v. - - - - 128
East and West Nantmill Townships, Road in - 100
Ernst v. Baker, 60
Falmouth Turnpike Co., Redsecker v. The - - 122
Feree v. Meily and others, 48
Fitzwater Street, Road from - - - - 13, 29
Furry, Chambers v. - - - - - 13, 142
Germantown and Perkiomen Road, Case of the - 48
Gibson, Philadelphia & Trenton Railroad Co. v, 127
Go wen v. The Philadelphia Exchange Co., - - 14
Graffius v. The Commonwealth, - - 114, 117
Greene v. The Borough of Reading, 49
Greenleaf's Court, Case of ... 39, 40
Hanover & Carlisle Turnpike Co., Comm. v. The 123
Harvey v. Lloyd, 138, 139
X
TABLE OF CASES CITED
Page
Harvey v. Thomas, -----
138,139
Ilellertown Road, Case of the
26, 44
Henry v. The Pittsburgh & Allegheny Bridge Co.,
49
Herr's Mill, Road from -
34
Holden v. Cole and others, - - -
114
Howell's Mills, State Road from -
20
John M'Cord's, Road from -
28
Jonestown to Wîlkesbarré, Road from -
16
Jonestown Road, &c., Road from the -
37, 38
King's Road, ------
37
Kyle's Road, Case of
19, 59
Lauderbonn v. Duffy, - - -
128
Lazaretto, Case of the Road from the -
60
Lloyd, Harvey v. - - - - -
138, 139
M'Claysburg, Road from -
38
M'Clenachan v. Curwin, -
120
Matthew Miller's house, Road from
19, 59
May town Road, Case of the
38
Meily and others, Ferree v. -
48
In re Milford, -
118
Miltenberger, Commonwealth v, -
117
Morrison's Lane, Road from
38
Nantmili Townships, Road in East & West -
100
Neeld's Road, Case of
26,
59, 61
Newville Road, Case of the - - 20,
47,
48, 66
Noble Street, Case of -
29
Noble Street, In the matter of
48
Norriton & Whitpain Road,
29,
33, 44
North Canal Street Road, Case of the -
35
O'Conner, Coovert v. -
14
Orthodox Street, Case of -
38
Oyster's & Emigh's Road, - -
100
Park, Willard v. • -
113
Patterson v. Arthurs,
145
Philadelphia Exchange Co., Gowen v. The -
14
TABLE OF CASES CITED.
xi
Page
Philadelphia & Reading Railroad Co. v. Gibson, - 127
Philadelphia & Trenton Railroad, - - 101, 127
Pinegrove Township, Union Canal Co. v. - 17, 81
Pittsburgh & Allegheny Bridge Co., Henry v. - 49
Pittsburgh, in the matter of the district of the City of 100
33
29
43, 44
47
38
49
122
25, 29, 30
29, 101
- 102
Pitt Township, Road in
Plymouth Township, Road in
Poquessing, Road from -
Quigley's Case, - - - - -
Radnor Road, Case of the -
Reading, Greene v. The Borough of -
Redsecker v. The Falmouth Turnpike Co., -
Road from App's Tavern, -
" in Aston Township, -
" from Bough Street, Case of the -
" " the Bridgewater & Wilkesbarré Turnpike
&c., - 26, 33
Road in Bucks County, 39
from Buckwalter's Orchard, 40
" Carlisle, ------ 43
in East & West Nantmill Townships, - 100
from Fitzwater Street, - - - 13, 29
Herr's Mill, - . » - - 34
John M'Cord's, - - - - - - 28
the Jonestown Road, &c., - - 37, 38
the Lazaretto, - - - - 60
M'Claysburg, - - - - 38
Matthew Miller's house, - - 19, 59
Morrison's Lane, 38
in Pitt Township, - - - 33, 35
in Plymouth Township, 29
from Point-no-Point to the Frankford Road, • 48
" Poquessing, - 43, 44
in Silverlake Township, 33
from Thomas' Creek, - - - . 101
u
<6
a
a
u
m
a
a
tc
a
a
u
tt
a
u
«
M
U
a
66
66
66
66
xïi TABLE OF CASES CITED.
Page
Road from Warrior Run, - -
28
" " the West Chester Road, &c.,
26
" in Whitemarsh, -
- 103
Rutherford's Road, Case of
67
Schuylkill Falls' Road, - 23,
43, 101, 102
Shamokin Road, Case of -
- 102
Shefferstown Road, Case of the -
33, 37
Sherwood, Adle v. -
116, 117
Silverlake Township, Road in -
33
Smith, Bird v. - -
- 142
Smith, Cooper v.
- 142
Spear's Road, - - - - : -
19, 28, 39
Spring Garden Street, Case of -
47
State Road, In the matter of the -
17
State Road from Howell's Mills, -
20
State Treasurer, Commonwealth v.
- 123
Strasburg Road, Case of the
43
Teese, Ex parte, -
- 118
Thomas, Harvey v. -
138, 139
Union Canal Co. v. Pinegrove Township,
17, 81
Warrior Run, Road from -
20
West Chester Road, &c., Road from the
26
Whitemarsh, Road in
- 103
Willard v. Parke, - - » -
- 113
ERRATUM.
Page 26, note 2, for Neild read Neeld.
CHAPTER I.
introductory.
Roads in Pennsylvania are of four kinds; State
Roads, which are laid out and opened in pursuance
of special Acts of Assembly; County Roads, which
derive their existence from proceedings in the Courts
of Quarter Sessions of the several counties, and are
either public or private roads; roads made by com¬
panies incorporated by the Legislature, of which are
most of the turnpikes and railroads in the state, and
Lateral Railroads to the public works.
The word road, when used generally in our laws,
is uniformly applied to public roads, unless the word
private be prefixed, and it is synonymous with the
word highway.1
The word street is in common parlance equivalent
to highway. The proceedings were, therefore, con¬
firmed in a case where the petition and the report of
the viewers were for a street, a substantial compliance
with the Act of Assembly being all that is required.2
In a highway the right of passage belongs to the
public, but the title to the soil, stones, wood or grass
thereon, continues in the owner of the land.3
A dedication of property as a highway need not
1 By Justice Yeates in Commonwealth v. Arnold, 3 Yeates 421.
2 Road from Fitzwater Street, 4 Sergeant & Rawle 106.
3 Chambers v. Furry, 1 Yeates 167.
2
14
INTRODUCTORY.
always be plenary: it may be partial, when the cir¬
cumstances distinctly show it was so intended. A
space left open in private property bordering on a
highway for the accommodation, not of the public
but the owner, is not thereby dedicated to public use,
but may be resumed at pleasure.4
A grant from the commonwealth of vacant land
bounded by a stream that has not been by law de'
clared navigable, and following its courses and dis¬
tances, passes the right to the soil to the middle of
the stream, and although, subsequently to the grant,
the stream may be declared a public highway, that
does not divest the property previously acquired by
a grant from the commonwealth.5
4 Go wen v. The Philadelphia Exchange Company, 5 W. & S. 141,
e Coovert v. O'Conner, 8 Watts 470.
CHAPTER II.
of state roads.
Each of these is laid out according to the direc¬
tions of the Act of Assembly passed for the purpose.
Acts are sometimes passed for the creation of state
roads which are confined in their whole route to a
single county. The propriety of such legislation may
be questioned. It seems an encroachment upon the
duties of the Courts of Quarter Sessions, who may be
supposed, as well as the road viewers appointed un¬
der their authority, to be better judges of the wants
of the county in the matter of roads, than the Legisla¬
ture, and as the laws for state roads usually contain
no provision for the payment of damages to the own¬
ers of the land taken for their erection, their enact¬
ment frequently operates as a hardship upon the pro¬
perty holders through whose lands they pass.
An Act was passed on the 18th of February, 1813,
for the laying out of a state road from Jonestown to
Wilkesbarré. The draft of so much of the road as
passed through the County of Lebanon, was filed in
the office of the Clerk of the Quarter Sessions of
Dauphin county, from which County Lebanon county
had been then lately erected. This was held to be
regular, as it did not appear that there was any clerk's
office in the county of Lebanon when the draft was
filed, and it was further decided that the court of
16
OF STATE ROADS.
Lebanon county had a right to open the road upon
a certified copy.1
An authority to commissioners to lay out and make
a state road, does not enable them to regulate its
width. But such power is given by the authority
"to open and keep in repair, in the same manner as
other roads laid out by the authority of the courts in
the counties aforesaid/' as is enacted in the 4th
section of the Act of February 18, 1813.1
The 20th and 21st sections of the Act of June 13,
1836, empower the Courts of Quarter Sessions to va¬
cate state roads within their respective counties. The
"manner aforesaid" is the manner in which county
roads are to be vacated, and will be fully considered
hereafter.
" Section 20. The said courts respectively shall
have power in the manner aforesaid, to change or
supply by a new road, the route of any state road
which may be laid out by direction of any Act of
Assembly, within their respective counties, and there¬
upon to vacate so much of such state road as shall
be supplied : provided, that no change shall be al¬
lowed in any such road which shall make the same
of a greater ascent or descent than five degrees from
a horizontal line.
" Section 21. The said courts respectively shall also
have power in the manner aforesaid, to inquire of
and vacate any part of a state road within the res¬
pective county, which shall have been supplied and
rendered useless by a substantial and permanent
turnpike road, made and completed according to law ;
1 Road from Jonestown to Wilkesbarré, 1 S. & R. 487.
OF STATE ROADS
17
but no stockholder in such turnpike road shall in
such case be a viewer or reviewer."
The provisions of the Act of April 23,1825, resem¬
bled those just recited from the Act of June 13, 1836.
It has been decided that the former Act did not give
the Courts of Quarter Sessions power to vacate a
state road absolutely, but that it expressly forbids
such vacating unless where another route is supplied
by the view or review f and that under this Act and
the Act of 1809, views and reviews might be granted
to vacate and change the route of a state road before
it has been opened.2
A canal company was bound to repair a bridge
connecting two portions of a public road. That road
having become a state road, it was held that the ca¬
nal company was thereby released from any further
charge in respect to the bridge.3
a In the matter of the State Road, 2 Penn. Rep. 289.
3 Union Canal Co. v. Pinegrove Township, 6 W. &- S. 560.
2*
CHAPTER III.
of the proceedings for opening county roads,
SECTION I.
of the petition for a road.
The 1st section of the Act of June 13, 1836, pro¬
vides that " the Court cf Quarter Sessions of every
county of the commonwealth, on being petitioned to
grant a view for a road within the respective county,
shall have power and are hereby required in open
court to appoint, as often as may be needful, six per¬
sons qualified as hereinafter is provided, to view the
ground proposed for such road, and make report of
their proceedings to the respective court at the next
term thereof: provided, that the provisions of this
Act relative to the appointment of viewers to lay out
roads and to assess damages, shall not extend to the
City and County of Philadelphia, hereinafter specially
provided for."
The following is a form of the petition to be pre¬
sented to the court by the persons desiring the open¬
ing of a road, without which, according to the above
provisions, it is not competent for the court to take
any step towards the opening of a road.
"To the Honourable ;he Judges of the Court of
OF THE PETITION FOR A ROAD
19
Quarter Sessions of the Peace in and for the County
of , '
"The petition of the undersigned, inhabitants of
the township [or townships] of in the said
county, respectfully showeth :
"That your petitioners labour under great incon¬
veniences for want of a road beginning at [here name
the point at which it is desired that the road shall
commence] and leading by the nearest and best route
to [here name the point at which it is desired that
the proposed road shall end.]
"Your petitioners therefore respectfully pray that
your Honours will appoint proper persons to view
and lay out the same according to law.
"And your petitioners will ever pray, &c."
It is not necessary to state in the petition whether
it is a public or private road that is petitioned for.1
No general rule can be laid down as to the preci¬
sion necessary in stating, in the petition, the points at
which the road is to begin and end.2
A description in a petition that the road prayed for
was to begin at a dwelling house which is known,
and end at a public road named therein, was held to
be sufficiently certain.3
In a case where the petition for a road was missing
and there was no minute on the clerk's book of its
presentation, or of the appointment of viewers,
whereupon a new petition was prepared, and a cer¬
tificate was signed by two of the associate judges
during vacation, setting forth that at the preceding
1 Spear's Road, 4 Binney 174.
8 Kyle's Road, 4 Yeates 514.
3 Road from Matthew Miller's house, 9 S. & R. 34.
20 PROCEEDINGS FOR OPENING COUNTY ROADS.
term they had appointed H. J., &c., viewers; to which
they added "and being informed that the petition
was mislaid, we hereby authorize you to make out
an order for the purpose," whereupon the clerk
made out an order, and the viewers made their re¬
port, the Supreme Court quashed the proceedings.4
The Courts of Quarter Sessions have jurisdiction
over the laying out of roads within the limits of
a borough, unless it be excluded by the charter of
incorporation.5
In the City and County of Philadelphia, the pro¬
visions of the 76th secticn of the Act of June 13,
1836, require that "all petitions for the laying out or
widening [of] any street, road or alley, shall be pre¬
sented to the Court of Quarter Sessions at least thirty
days before the commencement of each term of said
court."
SECTION II.
OF THE APPOINTMENT OF VIEWERS AND THE PERSONS
QUALIFIED TC ACT AS SUCH.
The above recited 1st section of the Act of June
13, 1836, provides that throughout the state, with
the exception of the City and County of Philadelphia,
the Courts of Quarter Sessions, upon their being
4 State Road from Howell's Mills, 6 Wharton 352.
* Case of the Newville Road, 8 Watts 172,
OF THE APPOINTMENT OF VIEWERS. 21
petitioned for a road within their respective counties,
shall appoint six persons* as viewers.t
The judges of the Court of Quarter Sessions for
the City and County of Philadelphia, upon the receipt
of a petition for laying out or widening a street, road
or alley duly presented, are authorized by the 76th
section of the said Act to direct a venire to issue,
directing the sheriff to return a panel of forty-eight
freeholders to the next term to act as viewers in all
cases of such applications, from which panel, on the
day to which the said venire shall be returnable, the
court shall direct six names to be drawn of viewers
to act in each case, who shall be subject to all the
provisions of this Act prescribing the duties of view¬
ers of roads.
Section 77 provides that "so much of the several
Acts of Assembly as prohibits any person residing or
owning real estate within the City or County of Phi¬
ladelphia respectively, from serving as a road or
street viewer of the said city or county, be and the
same is hereby repealed : provided, that no person
shall serve as a road or street viewer, who has an
interest in the property through or near which the
same is to pass/'
Section 7S directs that "the Commissioners of Phi¬
ladelphia (county) shall provide and keep a wheel,
* The number in several counties is reduced to three, as hereafter
mentioned.
f In Northampton county, viewers of roads and viewers of damages
for roads, or a majority of them, are to "be selected from among the
citizens of the respective townships or boroughs in which any road
or roads *** are proposed to be made." Section 2 of an Act passed
April 3, 1846, "concerning views of roads and road damages in
Northampton county."
22 PROCEEDINGS FOR OPENING COUNTY ROADS.
in addition to those now required by law, for the
purpose of containing the names of road viewers to
serve as hereinbefore provided, which shall be se¬
lected, and who shall be summoned as jurors are
now by law selected and summoned in other cases,
which said wheel shall be kept by the said commis¬
sioners, and the keys thereof shall be in the custody
of the sheriff, who shall receive for summoning road
jurors the same fees as he receives for selecting and
summoning jurors in other cases."
Section 79 enacts that the "said forty-eight view¬
ers so as aforesaid selected and summoned, shall not
be required to attend peisonally on the day to which
the venire shall be returnable, but it shall be the duty
of the party petitioning, after the said six viewers
shall be drawn as aforesaid, to give notice to them of
the time and place of meeting, in such manner as the
said court shall order and direct, and in case of any
vacancy occurring after the said six names shall be
drawn as aforesaid, it shall be lawful for a majority
of the said viewers to fill the same."
The 51st section provides that "any discreet and
reputable citizen, qualified to vote for members of
the Legislature, may be appointed a viewer for any
of the purposes mention ad in this Act, but except it
be otherwise specially provided, the court appointing
viewers shall select them, as far as practicable, from
persons residing near the place to be viewed."
In two cases which will be hereafter referred to, it
was held to be a fatal exception to the proceedings
in a road case, that one of the petitioners for the road
was appointed and acted as a reviewer. The ap¬
pointment of a petitioner to act as viewer would
seem equally objectionable.
OF THE APPOINTMENT OF VIEWERS. 23
Where an order to viewers was taken out of the
clerk's office without the signature of that officer or
the seal of the court to it, this was held to be a mate¬
rial defect, and not a mere informality, which would
be amended by the court,1
The appointment of viewers is made in the follow¬
ing form :
"At a Court of Quarter Sessions of the Peace of
the County of held at in and for the said
county on the day of A. D. before
and Judges of the said court :
" Upon the petition of divers inhabitants of the town¬
ship [or townships] of in the said county, set¬
ting forth that they labour under great inconvenience
for want of a road or highway beginning at [stating
the point of beginning as in the petition] and leading
by the nearest ajad best route to [stating the point of
ending as in the petition] and therefore praying the
court to appoint proper persons to view and lay out
the same according to law : The court upon due
consideration had of the premises, do order and ap¬
point A. B., C. D., E. F., G. H., I. J. and K. L., who
after being respectively sworn or affirmed to perform
the duties of their appointment with fidelity, are to
view the ground proposed for the said road, and if
they or any five of them view the same, and any
four of the actual viewers agree that there is occa¬
sion for such a road, they shall proceed to lay out
the same, as agreeable to the desire of the petitioners
as may be, having respect to the best ground for a
road and the shortast distance, and in such a manner
as to do the least injury to private property, and that
1 Case of Bryson's Road, 2 Penn. Rep. 207.
24 PROCEEDINGS FOR OPENING COUNTY ROADS.
they make report of their proceedings to the next
Court of Quarter Sessions to he held for the said
county, stating particular y whether they judge the
same necessary for a public or a private road, to¬
gether with a plot or draft thereof, and the courses
and distances, and references to the improvements
through which it may pass. In which report they
shall state that they have been sworn or affirmed
according to law.
[Seal.] "By the court.
Y. Z., Clerk
SECTION III.
OF THE VIEW.
Section 52 of the Act of June 13, 1836, provides
that "no view which may be had for any of the pur¬
poses aforesaid, shall be gaod and valid unless five of
the persons appointed for the purpose shall view the
place in question, nor unless four of the actual view¬
ers concur in the report."
Section 2 of the same Act provides that " the per¬
sons appointed as aforesaid shall view such ground,
and if they agree that there is occasion for a road,
they shall proceed to lay out the same, having res¬
pect to the shortest distance and the best ground for
a road, and in such a manner as shall do the least
injury to private property, and also be, as far as prac¬
ticable, agreeable to the desire of the petitioners.
OF THE VIEW.
25
Section 53 of the same Act requires that " all
viewers and reviewers appointed for any purpose
mentioned in this Act, also all persons appointed to
inspect any bridge as aforesaid, shall, before they
proceed to the duties of their appointment respec¬
tively, make oath or affirmation to perform the same
impartially and according to the best of their judg¬
ment, which oath or affirmation may be administered
to them by any magistrate of the respective county,
or by any one of their number.' "
Section 58 of the same Act directs that " in all cases
of a view or review, or of any view subsequent to a
review of a road, a surveyor shall be found and paid
by the persons applying for such views."
It has been decided that no notice need be given
to the owners of land of the time when the viewers
will meet to lay out a road passing through it, but
that the viewers ought in passing through improved
ground, to call the persons living on the farm.1
The 1st section of an Act passed April 6, 1843,
enacts that the viewers appointed to locate a public
road in either of the Counties of Washington, Mercer
and Fayette, shall not proceed to view and lay out.
the same until the persons interested in the road give
public notice, by written or printed advertisements,
of the time and place where the said viewers shall
meet for the purpose of locating the road, at least ten
days before such meeting. This provision is extended
to the Counties of Greene and Clearfield, by section
16 of an Act passed May 7, 1844.
Section 2 of an Act passed February 24, 1845, di¬
rects viewers in the counties of Butler, Allegheny,
7 1 Road from App's Tavern, 17 S. & R. 388.
3
26 PROCEEDINGS FOR OPENING COUNTY ROADS.
Luzerne, Lycoming and Clinton, to give public no¬
tice, by at least three advertisements put up in the
vicinity of the contemplated route of the road, of the
time and place of their meeting, at least five days be¬
fore such meeting.
It has been lately decided that if a road be laid
out over the lands of a minor, without notice to his
guardian or some one interested for him, the report
of the viewers will be set aside, though damages may
have been assessed in his favour for the loss or in¬
jury sustained thereby.2
Viewers and reviewers are restricted to the space
between the points specified in the order,3 yet they
may carry the road, to the point designated, partly
over the bed of a road already laid out and opened.4
A public road cannot be located alongside of and
adjoining another public road, so as to increase the
width of both exceeding fifty feet.*
Section 26 of the Act in question provides as fol¬
lows, for the case of road s laid out upon the boun¬
dary line of adjoining counties : " Roads upon and
along aline which dividss two adjoining counties,
may be laid out, altered and vacated in the manner
provided in the case of other roads, except that the
Court of Quarter Sessions of each of the said counties
shall appoint three of the viewers, and that a report
as aforesaid shall be made to the said courts respec-
* Case of Neild's Road, 1 Barr 353.
3 Road from the West Chester Road, &c., 2 Rawle 421. Heller-
town Road, 5 W. & S. 202.
4 Road from the West Chester Road, &c., 2 Rawle 421.
4 Road from the Bridgewater &, Wilkesbarré Turnpike, &c., 4
W. & S. 39.
THE REPORT OF TIIE VIEWERS.
27
tively, and that the said courts shall otherwise have
and exercise concurrent jurisdiction therein."
Section 59 of the same Act provides as follows, for
the compensation of viewers : " Viewers of public
roads or highways, and of bridges, shall be entitled
each to receive from the county treasurer one dollar
for every day necessarily employed in that service,
011 producing a certificate from the Clerk of the Court
of Quarter Sessions of the respective county, that
such service has been performed by them."
Section 1 of "an Act concerning views of roads
and road damages in Northampton county," passed
April 3, 1846, directs that the expenses of all road
views and the viewers of roads in that county, shall
be paid by the petitioners.
SECTION IV.
THE REPORT OF THE VIEWERS.
The 3d section of the Act of June 13, 1836, pro¬
vides that " the viewers as aforesaid shall make re¬
port at the next term of the said court, and in the
said report shall state particularly, first, who of them
were present at the view; second, whether they were
severally sworn or affirmed; third, whether the road
desired be necessary for a public or private road ; they
shall also annex and return to the court a plot or
draft thereof, stating the courses and distances, and
noting briefly the improvements through which it
may pass; and whenever practicable, the viewers
shall lay out the said roads at an elevation not ex-
28 PROCEEDINGS FOR OPENING COUNTY ROADS.
ceeding five degrees, except at the crossing of ravines
and streams, where, by moderate filling and bridg¬
ing, the declination of the road may be preserved
within that limit."
The directions of the Act of April 6, 1802, that the
viewers shall proceed to lay out the road " as agree¬
able to the desire of the petitioners as may be, having
respect to the best ground for a road, and the short¬
est distance, in such a manner as to do the least in¬
jury to private property," are substantially the same
as those contained in the Act of June 13, 1836, which
has supplied it. Under the first Act it was decided
that it is not necessary that the report of the viewers
should state that they had respect to the best ground
for the road and the shortest distance, and that they
had laid it out in such a manner as to do the least
injury to private property.1
Viewers and reviewers must return both a plot
or draft and the bourses ar d distances.2
The Act of June 13, IS36, is very positive in re¬
quiring the improvements through which a road may
pass, to be noted upon the draft which accompanies
their report. The old law was much less explicit,
and the decisions under i:: that the reference to the
improvements need not appear in the report, but may
be made on the draft annexed,3 and that it need not
be made on the draft, it being sufficient, if from the
whole report, including the draft, the court receive
information of the improvements,4 are of no autho¬
rity under the present law.
1 Spear's Road, 4 Binney 174.
* Road from Warrior Run, 3 Binney 8.
3 Schuylkill Falls' Road, 2 Binney 250.
* Road from John M'Cord's, 13 S. & R. 83.
THE REPORT OF THE VIEWERS.
29
If the viewers return the breadth of the road, it is
only surplusage.5
One of the viewers having signed the report by a
different surname from that by which, owing to a
clerical mistake, he was named in the certificate of
appointment, the court refused to quash the proceed¬
ings on this account. The Court of Quarter Sessions
having confirmed the report, the Supreme Court held
that they would presume that the Quarter Sessions
were satisfied that the persons who signed it were
those who were appointed viewers.6
It has been decided that it is not a sufficient reason
for setting aside a road jury's report, that the jurors
were entertained on the day of the view at the house
of one of the petitioners, there being no evidence of
any attempt to influence them.7
In the year 1835, upon a petition to widen a street
between two certain termini, the viewers reported in
favour of a width of fifty feet, which was confirmed
by the Court of Quarter Sessions in the same year.
In the year 1838, the court confirmed the report of a
jury of view made in 1831, in favour of opening the
street to the width of forty feet for a part of the dis¬
tance between the same termini. Upon certiorari,
the Supreme Court quashed the proceedings.8
It is a sufficient adjudication, that the road is a
public one, if the viewers say they lay out the road
for public use.9
s Road in Aston Township, 4 Yeates 372.
c Road from Fita water Street, 4 S. & R. 106.
7 Road in Plymouth Township, 5 Rawle 150.
8 Case of Noble Street, 5 Wharton 333.
8 Road from App's Tavern, 17 S. & R. 388. Norriton and YV hit-
pain Road, 4 Barr 337.
3*
30 PROCEEDINGS FOR OPENING COUNTY ROADS.
If the draft shows that ;he road passes through the
lot of an individual, it need not state the precise dis¬
tance it passes through it.&
The following are the usual forms of the returns
or reports of the viewers :
1st. Where they report in favour of the road.
"To the Honourable the Judges within named:
"We the persons appointed by the within order of
court, to view and lay out the road therein mentioned,
do report that in pursuance of the said order we have
viewed and laid out and do return for public [or pri¬
vate] use, the following road, namely: Beginning at
[here name the starting point as in the petition and
appointment, and describe the courses and distances
of the road fully in words (not figures) to the point
of termination], a plot or draft whereof is hereunto
annexed. Witness our hands this day of
in the year of our Lord
2dly Where they report against the road.
" To the Honourable the Judges within named:
"We the persons appointed by the within order of
court to view and lay out the road therein mentioned,
do report that we have viewed the place where the
road within mentioned is requested, and are of opi¬
nion that there is no occasion to lay out the same.
Witness our hands this day of in the
year of our Lord
m
Section 16 of an Act passed May 7, 1844, "rela¬
tive to roads and bridges in the Counties of Crawford,
Clearfield and Greene," reduces the number of road
and bridge viewers in Greene and Clearfield counties
to three, one to be a surveyor if necessary, and no
view is to be valid unless all the viewers personally
*° Road from App's Tavern, 17 S. & R. 388.
THE REPORT OF THE VIEWERS
31
examine the premises, and 'a majority concur in the
report ; their pay to be as now fixed by the laws of
the commonwealth.
The following four sections of an Act passed on
the 24th of February, 1845, "relative to public roads
in certain counties therein named," reduce the
number of road and bridge viewers to three in the
Counties of Allegheny, Butler, Clinton, Luzerne and
Lycoming, provide for notice of their meeting, and
for releases of damages. These provisions were ex¬
tended to the Counties of Juniata, Pike, Union, Wy¬
oming and Wayne, by an Act passed April 3, 1846,
to Susquehanna county by an Act passed April 8,
1846, and to Columbia county by an Act passed
April 10, 1846.
"Section 1. Hereafter the number of road and
bridge viewers appointed by the Courts of Quarter
Sessions of the Counties of Butler, Allegheny, Lu¬
zerne, Lycoming and Clinton shall be three, one of
whom shall be a surveyor, if deemed necessary ; and
every view and review shall be made by the whole
number of persons so appointed, a majority of whom
shall concur in their report in order to its confirma¬
tion by the court.
" Section 2. In all cases of the appointment of
viewers in said counties, to view and locate a public
or private road, or to review a public road, the said
viewers or any one of them shall, before proceeding
to make their view or review, give public notice by
at least three advertisements put up in the vicinity
of the contemplated route of said road, of the time
and place where the said viewers will meet for the
purpose of making such view or review, at least five
days before such meeting.
32 PROCEEDINGS FOR OPENING COUNTY ROADS.
" Section 3. If the viewers shall decide in favour
of locating a public road, or to make any change in
the location in the public road which they were ap¬
pointed to review, it shall be the duty of the viewers
to endeavour to procure from the persons through
whose lands such locatioi. may be made, releases for
all claims of damages that might arise from opening
the same; and in every case where said viewers shall
fail to procure such releases, and it shall appear to
them that any damage will be sustained, it shall be
their duty to assess the damages and make report
thereof, signed by a maj erity of their number, and
return the same, together with all releases obtained,
to the proper Court of Quarter Sessions.
" Section 4. It shall be the duty of the said court
to examine carefully the a mount of damages assessed
as aforesaid ; and if said court shall be satisfied that
the amount of damages assessed in any case is such
that the public interest will be subserved by its pay¬
ment and the opening of the road, said court shall
confirm such view or review, and the assessment of
damages which shall be paid as now directed by
law ; but if said court shall not be satisfied, the said
report shall not be confirmed unless the same shall be
paid first by the petitioners."
Section 6 of the said Act of February 24, 1845,
provides " that from and after the first day of June
next, the number of road and bridge viewers ap¬
pointed by the Court of Quarter Sessions of the
County of Beaver shall be three, one of whom shall
be a surveyor ; and every view and review shall be
made by the whole number of persons as appointed,
a majority of whom shah concur in their report in
order to its confirmation by the court."
PROCEEDINGS FOR OPENING COUNTY ROADS.
33
SECTION V.
OF THE CONFIRMATION OF THE ROAD.
Section 4 of the Act of June 13, 1836, enacts that
" if the court shall approve of the report of the view¬
ers allowing a road, they shall direct of what breadth
the road so approved shall be opened, and at the
next court thereafter the whole proceedings shall be
entered on record, and thenceforth such road shall be
taken, deemed and allowed to be a lawful public
road or highway, or private road, as the case may be."
And section 5 provides that " the breadth of a
public road laid out as aforesaid shall not exceed
fifty feet, and the breadth of a private road shall not
in any case exceed twenty-five feet."*
If the Court of Quarter Sessions omit to fix the
width of a public road, it is fatal to their proceedings:1
and the court must fix the breadth by a special or¬
der; à general order, applying to all cases not other¬
wise provided for, is insufficient.2
It is the duty of the Court of Quarter Sessions, at
the time when they approve of the report of viewers
allowing a road, to direct of what breadth it shall be
opened. The mere entry of the word u approved"'
upon the report of viewers allowing a road, amounts
to nothing.3
The Court of Quarter Sessions has no right to
make a material alteration in the report of the view-
1 Road in Silver lake Township, 3 W. & S. 559. Road from the
Wilkesbarré & Rridgewater Turnpike, &c., 4 W. & S. 39.
a Norriton and Whitpain Road, 4 Barr 337. Case of the Bheffers-
town Road, 5 Barr 515.
8 Road in Pitt Township, I Barr 356.
34 PROCEEDINGS FOR OPENING COUNTY ROADS.
ers of a road, because il appears that the surveyor
has not pursued the directions of the viewers.4 -
The confirmation of the road is entered upon the
records of the court in the following manner :
"At a Court of Quarter Sessions of the Peace for
the county of held on the day of
in the year of our Lord :
A. B., C. D., E. F., G. H., I. J. and K. L., the per¬
sons appointed by an o:'der of this Court of
Sessions last past, to view and lay out a road from
[naming the point of beginning] to [naming the point
of termination], do report that in pursuance of the said
order they have viewed and laid out and do return
for public [or private] use the following road, namely :
Beginning There describe the route as in the return]
a plot or draft whereof is to the said report annexed,
which report being read at the Sessions, the
court approve of arid confirm the said road for pub¬
lic [or private] use, and order and direct that it be
entered of record, and opened and cleared of the
breadth of feet, agreeably to the courses and
distances aforesaid, of which the supervisors of the
highways of the townships through which the said
road runs, are to take notice."
SECTION VI.
OF THE OPENING OF THE ROAD.
Section 6 of the Act of June 13, 1836, provides
that " public roads or highways laid out, approved
4 Road from Herr's Mill, 14 S. & R. 204.
OF THE OPENING OF THE ROAD.
35
and entered on record as aforesaid, shall, as soon as
may be practicable, be effectually opened and con-
*
stantly kept in repair, and all public roads or high¬
ways made or to be made, shall at all seasons be
kept clear of all impediments to easy and convenient
passing and travelling, at the expense of the respec¬
tive townships, as the law shall direct."
It is necessary that the approval and order of the
court fixing the width of a road, shall lie over one
term for objections, before the road is opened.i
Proceedings for the opening of a road commenced
under the provisions of a statute, are arrested by the
repeal of the statute ; every act towards their com¬
pletion done after the repeal, is void.2
The 10th section of the Act of June 13, 1836, pro¬
vides that " public roads or highways which have
been or shall be laid out on a line which divides two
townships, shall be opened, made, kept clear and in
repair at the joint and equal charge of such town¬
ships, and if either township shall in any such case
necessarily incur more than its due proportion of such
charge, it shall be lawful for such township to receive
from the other township the excess so incurred, in
an action to be founded on this Act."*
The following sections of the said Act provide penal¬
ties for obstructions and other injuries to public roads,
and for injuries to drains opened to free them from
water :
1 Road in Pitt Township, 1 Barr 356.
8 Case of the North Canal Street Road, 10 Watts 351.
* See postea in the chapter upon the duties of supervisors, the sec¬
tion of the Act directing what shall be done when the supervisor of a
township neglects or refuses to join in opening, &c., a road lying on
the boundary line of two townships.
36
PROCEEDINGS FOR O PENING COUNTY ROADS.
" Section 67. If any person shall stop, fill up, or
injure any drain or ditch made by any supervisor for
the purpose of draining the water from any public
road or highway, or shall divert or change the course
thereof without the authority of the supervisors for
the time being, such person shall, for every such of¬
fence, forfeit and pay a sum not less than four dollars
nor more than twenty dollars.
" Section 68. If any person shall stop or obstruct
any public road or highway, or shall commit any
nuisance thereon, by felling trees, making fences,
turning the road or in any other way, and do not, on
notice given by the supervisors of the respective
township, forthwith remove the nuisance and repair
the damage done to such road, such person shall, for
every such offence, forfeit and pay a sum not less
than ten dollars nor more than forty dollars : pro¬
vided, that nothing in this section shall be deemed to
debar an indictment for any such nuisance, as in case
of misdemeanor at common law."
SECTION VII.
OF THE REVIEW.
Section 25 of the Act of June 13, 1836, provides
that " in all cases of views for any purpose mention¬
ed in this Act, the respective court shall, on petition
of any person interested, direct a second view or re¬
view for the same purpose: providedr, that applica¬
tion therefor be made at or before the next term of
the said court, after the report upon the first view."
OF THE REVIEW.
37
Within the City and County of Philadelphia, re¬
viewers are to be chosen in the same manner as is
provided for viewers; (see ante); after their appoint¬
ment, the same proceedings are to be had as are pro¬
vided by the general provisions of the Act. (Section
80 of the Act of June 13, 1836).
The review of a road is a matter of right, if prayed
for by persons interested therein.1
The petition for a review of a road must state speci¬
fically the object, and that must appear to be clearly
within the purview of the Act giving jurisdiction to
the court, otherwise the proceedings are irregular.
The Court of Quarter Sessions has no authority to
grant a review to widen, straighten or fix the limits
of a road already laid out and used for many years.
Its power is only to lay out, to vacate, and alter or
change an established route.2
A petition for the review of a road should be
signed by the parties in interest, and not by their at¬
torney, and the court have a right to refuse a review
on a petition signed by a person as attorney.3
A practice in the Court of Quarter Sessions of ap¬
pointing twelve freeholders as reviewers of a road,
from which the parties in interest may strike six, the
remaining six being the reviewers, is illegal and bad;4
but the petitioners for a review having prayed for
the appointment of twelve and then refused to strike
off six because some of the persons named were ex¬
ceptionable, and applied to the court to appoint others
1 King's Road, 1 Dallas 11. Berlin Road, 3 Yeates 263. Bach-
man's Road, 1 Watts 400.
2 Case of the Church Road, 5 W. & S. 200.
3 Case of the Shefferstown Road, 3 Watts 475.
4 Road from the Jonestown Road, &c., 1 Penn. Rep. 243.
4
38 PROCEEDINGS FOR OPENING COUNTY ROADS.
in their room, which the court refused and thereupon
confirmed the report of the view, the Supreme Court
confirmed their proceedings.5
The confirmation of a road was reversed because
the reviewers had not actually reviewed the road,
and because one of the petitioners for the road had
been appointed a reviewer.6
The appointment of one of the petitioners for a
road as reviewer, and his acting as such, are fatal
objections to the proceedings. The court will quash
the proceedings in such a case.7
Where it was not stated in the report of the re¬
viewers of a public road, that they were all sworn
[or affirmed ?], the proceedings were quashed.8
In a case where the County Commissioners had
attended the jury or view, and received notice of the
jury of review, the Court of Quarter Sessions of Phi¬
ladelphia county confirmed the report of the jury of
review, although the Commissioners had not attended
them.9
An order of the Court of Quarter Sessions having
directed reviewers "to review the ground and places
between S. and ¥., where the road is required, and
if they are of opinion that a road is necessary between
the places, to lay it out, &e.," and the reviewers hav¬
ing reported that " in pursuance of the said order
they had reviewed, laid out and returned the follow¬
ing road," &c., it was thereupon held that it might
5 Road from the Jonestown Road, &c., 1 Penn. Rep. 243.
6 Case of the M a y town Road, 4 Yeates 479.
7 Case of the Radnor Road, 5 Binney 612. Road from M'CIays-
bui g, 4 S. & R. 200.
8 Road from Morrison's Lane, 3 S. & R. 210.
9 Case of Orthodox Street, 2 Ashmead 28.
OF THE REVIEW.
39
be presumed that they had reviewed the ground and
places as required by the order.10
In April, 1836, a petition was presented to the
Court of Quarter Sessions of Bucks county, praying
for the appointment of a jury to view and lay out a
certain road. Viewers were accordingly appointed,
who reported that they had viewed and laid out the
road applied for. Their report was filed at the Sep¬
tember sessions, 1836, and confirmed nisi on the 13th
of September. At the December sessions, 1836, a
jury of review was petitioned for and appointed, who
reported to the February sessions, 1837, that they
were unable to agree. This report was confirmed
nisi on the 14th of February, 1837. On the 13th of
May, 1837, the Clerk of the Quarter Sessions issued
an order to open the road as laid out by the viewers,
which order the Court of Quarter Sessions quashed,
and the Supreme Court, upon an appeal, affixed their
decree quashing the order.11
It is not a sufficient exception to the report of a
jury of review in the case of a street in the City of
Philadelphia, that the names of absent jurors are not
mentioned, the report commencing, "The jurors ap¬
pointed in the within order of court, &c., report," &c.,
and being signed by five of the jurors;12 nor is it a
sufficient exception to such report, that it does not
state whether the street is necessary for a public or
private road—the report "adopting and confirming
the report" of the first jury in which the street is laid
out as a public street;13 nor is it a sufficient exception
10 Spear's Road, 4 Binney 174.
11 Road in Bucks county, 3 Wharton 105.
» a i3 The Case of GreenleaPs Court, 4 Wharton 514.
40 PROCEEDINGS FOR OPENING COUNTY ROADS.
to such report, that it stales the jurors to have been
"first duly sworn and affirmed according to law."14
Where there have been a view and review, the
Court of Quarter Sessions may adopt either;15 and
this although no exception is made to the report of
the reviewers.16
Section 54 of the Act of June 13, 1836, provides
that the expense of any review of a private or public
road shall be wholly paid by the persons applying for
the same; and according to section 60, reviewers shall
be entitled to receive the like compensation [to that
paid viewers, namely one dollar per day] from the
persons at whose instance they were appointed, for
every day necessarily employed in that service.
Section 58 requires the persons applying for a re¬
view, to find and pay a surveyor.
The petition for a review is in the following form:
"To the Honourable the Judges of the Court of
Quarter Sessions of the Peace for the county of
" The petition of respectfully showeth that a
road has been lately laid out by order of court, from
[mentioning the starting point] to [the point of ter¬
mination] which road if confirmed by the court will
be very injurious to your petitioners, and burthensome
to the inhabitants of the township [or townships]
through which the same will pass. Your petitioners
therefore pray your Honours to appoint proper per¬
sons to review the said road and parts adjacent, and
make report to the court according to law. And
your petitioners will ever pray, &c."
14 The Case of Greenleaf's Court, 4 Wharton 514.
,5" Road from Buck waiter's Orchard, 3 S. & R. 236.
16 Case of Bachman's Road, 1 Watts 400.
OF THE REVIEW
41
The following is the form of the appointment of
reviewers.
"At a Court of Quarter Sessions of the Peace in
and for the county of
"Upon the petition of [naming the petitioners] set¬
ting forth [here follows the petition] and therefore
praying [as in the petition] : The court upon due
consideration do order and appoint L. M., N. 0., P.
Q., R. S., T. U. and V. W., to review the said road
and parts adjacent, and if any five of them review
the same, and any four of the actual viewers agree
that there is occasion for such a road, they shall pro¬
ceed to lay out the same, having respect to the best
ground for a road, and the shortest distance, and in
such a manner as to do the least injury to private
property ; and that they make report of their proceed¬
ings to the next Court of Quarter Sessions to be held
for the said county, stating particularly whether they
j udge the same necessary for a public or private road,
together with a plot or draft thereof, and the courses
and distances and references to the improvements
through which it may pass.
" By the court.
[Seal] J. B., Clerk
The following is the form of the report of the re¬
viewers when in favour of the road :
" To the Honourable the Judges of the Court of
Quarter Sessions of the Peace for the county of
" We the persons appointed to review the road
within mentioned and parts adjacent, do report that
in pursuance of the said order we did review the
same, and have laid out for public use the following
road, namely, beginning, &c. [here describe the road
fully]. Witness our hands this day of
4*
42
PROCEEDINGS FOR OPENING COUNTY ROADS.
in the year of our Lord one thousand eight hundred
and
When the reviewers report against the road, the
following form is to be used :
"To the Honourable the Judges of the Court of
Quarter Sessions of the Peace for the county of
" We the persons appointed to view the road within
mentioned and parts adjacent, do report that in pur¬
suance of the said order, we did review the same,
and in our opinion there is no occasion for such a
road. Witness our hands this day of
in the year of our Lord one thousand eight hundred
and "
Where the reviewers report in favour of the road,
it is thus confirmed by the Court of Quarter Sessions.
"At a Court of Quarter Sessions of the Peace of the
county of held at on the day of
in the year of our Lord one thousand eight
hundred and before and Judges of
the said court :
" L. M., N. 0., P. Q., R. S., T. U. and V. W., the
persons appointed by an order of this Court of *
Sessions last past, to review a certain road laid out
from to and parts adjacent, do report that
in pursuance of the said order they have reviewed
and laid out for public use the following road, to wit:
Beginning at [here follo w the return of the review¬
ers] a plot or draft whereof is to the said report an¬
nexed ; which report having been read in the manner
and at the times prescribed by law, the court approve
of and confirm the said road for public use, and or¬
der and direct that it be entered of record, and shall
henceforth be taken, deemed and allowed to be a
lawful public road or highway, and the court further
OF A SECOND REVIEW OR A RE-REVIEW.
43
direct that the said road shall be opened of the
breadth of feet, agreeably to the courses and
distances aforesaid, of which the supervisors of the
highways of the townships through which the said
road passes, are to take notice and govern themselves
accordingly.
" By the court.
\Seah~\ Y. Z., Clerk
SECTION VIII.
OF A SECOND REVIEW OR A RE-REVIEW.
The Court of Quarter Sessions has power to grant
a second review but this is in the discretion of the
court.2
Under the Act of April 6, 1802 (the provisions of
which as to reviews, were simiiiar to those of the Act
of June 13, 1836), it was held, that the Court of
Quarter Sessions had power to grant a re-review of
a road, though the viewers and reviewers had both
reported in its favours
The practice has always been to confine the party
to three views, where they have been fair and regu¬
lars
A re-review of a road can only be ordered on a
petition presented to the court for that purpose, as
1 Schuylkill Falls' Road, 2 Binney 250.
a Case of the Strasburg Road, 2 Yeates 53.
8 Road from Carlisle, 2 Rawle 124.
4 Road from Poquessing, 1 Browne 210.
44 PROCEEDINGS FOR OPENING COUNTY ROADS.
the expenses of re-reviews must be borne by the pe¬
titioners.5
The objection that a re-review was granted whilst
previous proceedings were pending and undeter¬
mined, should be made in the court below; if omitted
there, it cannot be made in the Supreme Court, to
which the proceedings have been removed by cer¬
tiorari.6
A re-review need only be of the ground between
two certain points; it need not be of the whole
ground before reviewed.7
Re-reviewers are not restricted to a simple appro¬
bation or rejection of a road as originally reported, but
they may return a different one. They are not
bound to return a draft of the road which they are
directed to re-review, bu : they may return only a
draft of that which they themselves recommend.8
An appeal lies to the court from the report of re-
reviewers.9
It is a fatal exception to the report of re-reviewers
that they were not sworn [or affirmed] before they
performed the duties of thsir appointment.!0
The adoption of the report of re-reviewers is a
waiver of the report of viewers, though exceptions
thereto are still pending.11
Viewers upon a third or any subsequent view are
each entitled to receive from the persons at whose
instance they were appointed, one dollar for every
5 6 7 Case of the Hellertown Road, 5 W. & S. 202.
8 Case of a Road in Abington Township, 14 S. & R. 31,
9 Road from Poquessing, 1 Browne 210.
10 Case of Bryson's Road, 2 Penn. Rep. 207.
11 Norriton and Whitpain Road, 4 Barr 337.
OF DAMAGES FOE THE OPENING OF PUBLIC ROADS. 45
day necessarily employed by them in that service.
[Section 60.]
As in the case of a review, the petitioners for a re-
review are to pay the expenses of the re-review, and
provide a surveyor. [Section 58.1
SECTION IX.
OF DAMAGES FOR THE OPENING OF PUBLIC ROADS.
The Act of June 13, 1836, makes provision for the
payment of damages to persons injured by the open¬
ing of public roads, in the following sections :
" Section 7. The owner of any land through
which a public road shall be opened as aforesaid,
may, within one year from the opening of the same,
apply by petition to the Court of Quarter Sessions of
the proper county, setting forth the injury which he
or she may have sustained thereby, and thereupon
the said court shall appoint six disinterested persons
to view the premises and assess the damages, if any,
which such petitioner may have sustained.
" Section 8. The viewers so appointed shall make
report in writing to the next Court of Quarter Ses¬
sions, and if their report be approved by the court,
the amount of damages awarded shall be paid by the
county treasurer out of the county stock, to the party
entitled thereto.
" Section 55. The expense of a view to assess the
damages sustained by the owner of land taken as
aforesaid, for a public road, shall be paid by the res¬
pective county."
46 PROCEEDINGS FOR OPENING COUNTY ROADS.
Section 1st of "an Act concerning roads and road
damages in Northampton county/' passed April 3,
1846, provides that "the expenses of all road views
and the viewers of public roads, and of views to as¬
sess damages arising from the opening of public roads
in the County of Northampton, shall be paid by the
petitioners; and all assessments of damages aris¬
ing from the opening of such road or roads, shall
be paid by the respective townships or boroughs in
which the same may be located ; and the supervisors
or members of the town council of the said townships
or boroughs, are hereby authorized to levy a tax for
the payment of all such awards or damages, after the
same shall have been affirmed by the Court of Quar¬
ter Sessions ef the said county."
" Section 9. Provided, that in assessing the dam¬
ages as aforesaid, the viewers shall take into conside¬
ration the advantages derived from such road's pass¬
ing through the land of the complainant."
With respect to damages for opening streets, &c.,
in the City and County of Philadelphia, the 76th sec¬
tion of the same Act provides that " the proceedings
*** to obtain damages in consequence of the laying
out or widening [of] any street, road or alley within
the City and County of Philadelphia, shall be as fol¬
lows: All petitions **'* for damages occasioned
thereby, shall be presented to the Court of Quarter
Sessions at least thirty days before the commence¬
ment of each term of said court, and thereupon the
said court shall direct a venire to issue, directing the
sheriff to return a panel of forty-eight freeholders to
the next term, to act as viewers in all cases of said
applications, from which panel, on the day to which
the said venire shall be returnable, the court shall
OF DAMAGES FOR THE OPENING OF PUBLIC ROADS. 47
direct six names to be drawn as viewers to act in
each case, who shall be subject to all the provisions
of this Act, prescribing the duties of viewers of ***
damages."
Section SO provides that "in all cases of assessment
of damages in the said city and county, after the
viewers shall be chosen as aforesaid, the same pro¬
ceedings shall be had as are prescribed by the gene¬
ral provisions of this Act."
It is sufficient if a majority of the viewers concur
in adjudging the damages. Where several persons
are required to do a public act which requires deli¬
beration, they must all be convened, but a majority
may decide.1
It is no exception to the report of viewers appoint¬
ed to assess damages for opening a street, that they
conversed with the owners of property adjoining, In
the absence of the parties interested.2
The petition for the appointment of viewers to as¬
sess damages for the opening of a road, asking for
the appointment of proper persons to view and ad¬
judge the value of so much improved land as was
taken up for the use of the road," the assessment of
damages made thereon was quashed.3
The land occupied by a public road is a legitimate
subject of consideration in assessing the damages sus¬
tained by the owner of the soil.4
The circumstance that the owner of the land
through which a public road has been opened, was a
petitioner for the appointment of viewers of the road,
1 Case of the Baltimore Turnpike, 5 Binncy 481.
* Case of Spring Garden Street, 4 Rawle 192.
8 Quigley's Case, 3 Penn. Rep. 139.
4 The Case of the New ville-Road, 8 Watts 172.
48 PROCEEDINGS FOR OPENING COUNTY ROADS.
does not preclude his claiming damages for the injury
done him by opening it.5
The court has no power to grant a review upon
the report of the damages sustained by a person from
the opening of a public road through his land.6
A report is bad which states certain facts, and sub¬
mits to the court whether upon such facts damages
should be given.7
A report is bad which finds certain facts, but sub¬
mits to the court questions of law arising upon them.8
A return of the viewers of improved lands, taken
up by a public road, that the damages resulting to
the owner, are valued at £45, is radically bad.9
It is not necessary that the jury should expressly
state in their report that they find no damages for per¬
sons whose claims have been submitted to them and
decided upon.10
Where damages have been awarded in consequence
of the opening of a street in the City or County of
Philadelphia, through private property, the court will
not grant the certificate required by law for the pay¬
ment to the owners of the soil, without first inquiring
whether there are any incumbrances, and directing
the appropriation accordingly.11
After the expiration of a year from the return of
the viewers appointed to assess the damages occa¬
sioned by the opening of a. street in the City or County
of Philadelphia, if such damages shall not be paid, all
5 6 The Case of the Newville Road, 8 Watts 172.
7 Road from Point-no-Point to the Frankford Road, 2 S. & R. 277.
8 Case of the Germantown & Perkiomen Road, 4 Rawle 191.
9 Feree v. Meily et al., 3 Yeates 153.
10 Road from Point-no-Point tc the Frankford Road, 2 S. & R. 277.
11 In the Matter of Noble Street, 1 Ashmcad 276.
OF DAMAGES FOR THE OPENING OF PUBLIC ROADS. 49
the proceedings in relation to such street, become
void ; although the non-payment of the damages arises
from the want of funds in the county treasury.12*
The petition for the appointment of viewers for
damages, is as follows :
"To the Honourable the Judges of the Court of
Quarter Sessions of the Peace for the county of
"The petition of respectfully showeth, that
a public road or highway was lately laid out and
opened by order of the court, from to ,
which road is laid out and opened through the land
of your petitioners. Your petitioners therefore hum¬
bly pray your Honours to appoint proper persons to
view and adjudge the value of so much of their lands
respectively, as is or may be taken up for the use of
the said road; and your petitioners will ever pray,
&c."
The appointment of the viewers of damages, is
made as follows :
"At a Court of Quarter Sessions of the Peace in
and for the county of , held :
12 Commonwealth v. The County Commissioners, 2 Wharton 286.
* The following- decisions refer to suits brought by individuals, for
consequential damages for the opening of streets, &c.
When the corporate officers of a borough are authorized by its Act
of incorporation to improve and repair the streets, they do not by so
doing subject the borough to an action by an individual, for a conse¬
quent injury to his property by reason of such improvement. But
when there are allegation and proof of malice and of a wanton disre¬
gard of private right, the law seems to be otherwise. Greene v. The
Borough of Reading, 9 Watts 382.
Neither the state nor a natural or artificial person acting by its au¬
thority under a law which the Legislature is competent to make, is
answerable for consequential damages occasioned by the construction of
a highway, further than is specially provided by the law itself. Henry
v. The Pittsburgh and Allegheny Bridge Company, 8 W. & S. 85.
5
50 PROCEEDINGS FOR OPENING COUNTY ROADS.
" Upon the petition of stating [as in the peti¬
tion], and therefore pray ing [as in the petition], the
court upon due consideration, do order and appoint
F. G., H. L, J. K., L. M., N. 0. and P. Q., to view
and adjudge the amount of damage (if any) sustained
by the petitioners by reason of the said road; who
and every of whom, before they proceed to assess the
damages, shall take the oath or affirmation prescribed
by the Act of Assembly : and the court do further
order, that the said petitioners give notice of the time
of holding such view, to one or more of the commis¬
sioners of county, and that the viewers afore¬
said do make report of ;heir proceedings herein, to
the next court according to law.
" By the court.
[Seal.] J. B., Clerk."
The oath or affirmation to be taken by the viewers
is to be administered as follows :
" You and each of you do swear [or solemnly, sin¬
cerely and truly declare and affirm] that you will
justly and truly value the damages (if any) which the
petitioners in this order mentioned have sustained by
reason of the road which has been laid out through
their lands, and that you will also consider the ad¬
vantage as well as the disadvantage of the said road.
So help you God [or, and this you do affirm]/'
The report is thus made :
"To the Honourable the Judges of the Court of
Quarter Sessions of the Peace in and for the county
of
" We the* subscribers, appointed by the within order
of court to view and adjudge the value of so much of
the lands of A. B., C. D. and E. F., as are taken up
by the road therein mentioned, do value and adjudge
OF DAMAGES FOR THE OPENING OF PUBLIC ROADS. 51
the loss thereby occasioned to the within named A.
B.j at the sum of dollars, the loss thereby occa¬
sioned to the within named C. D. at dollars,
and the loss thereby occasioned to the within named
E. F. at dollars, respectively. Witness our
hands this day of in the year of our
Lord one thousand eight hundred and
The confirmation by the court is thus entered :
« F. G., H. I., J. K., L. M., N. 0. and P. Q. [or
any five of them], the persons appointed by the order
of this court of sessions, in the year of our
Lord one thousand eight hundred and , to view
and adjudge the value of so much of the lands of A.
B., C. D. and E. F., as are taken up by the road
leading from to , do report that they
have valued and adjudged the loss thereby occa¬
sioned to the said A. B. at the sum of dollars,
the loss thereby occasioned to the said C. D. at
dollars, and the loss thereby occasioned to the said
E. F. at dollars respectively; which report
being read, the court on due consideration do approve
of and confirm the same, and direct the said sum of
dollars to be paid to the said A. B., the said
sum of dollars to be paid to the said C. D., and
the said sum of dollars to be paid to the said
E. F., by the treasurer of the county of , out of
the county stock.
" By the court.
[Seal.~\ J. B., Clerk."
52
PROCEEDINGS FOR OPENING COUNTY ROADS.
SECTION X.
OF THE LAYING OUT OF ROADS UPON COUNTY LINES.
Section 26 of the Act of June 13, 1836, provides
that "Roads upon and along a line which divides
two adjoining counties may be laid out *** in the
manner provided in the case of other roads, except
that the Court of Quarter Sessions of each of the said
counties, shall appoint three of the viewers, and that
a report as aforesaid shall be made to the said courts
respectively, and that the said courts shall otherwise
have and exercise concurrent jurisdiction therein."
The following are the forms used in case of appli¬
cations for the laying out of roads upon county lines :
" To the Honourable the Judges of the Court of
Quarter Sessions of the Peace of the county of
" The petition of the subscribers inhabitants of the
counties of and respectfully represents :
" That your petitioners labour under great incon¬
veniences for want of a public road or highway to
lead upon the line which divides the said counties
from in county, to in
county.
ar
" Your petitioners therefore pray the court to ap¬
point proper persons to view and lay out the same
according to law.
"And they will ever pray, &c."
A copy of the foregoing is to be presented to the
Court of Quarter Sessions of each of the respective
counties. The order of court is as follows :
OF THE LAYING OUT OF ROADS UPON COUNTY LINES. 53
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
" Upon the petition of sundry inhabitants of the
counties of and setting forth that they
labour under great inconveniences for want of a
public road or highway to lead upon the line which
divides the said counties from in county,
to in county, and therefore praying the
court to appoint proper persons to view and lay out
the same according to law. Whereupon the court
upon due consideration had of the premises, do order
and appoint upon behalf of county aforesaid,
G. H., I. J., and K. L., who after being respectively
sworn or affirmed to perform the duties of their ap¬
pointment with impartiality and fidelity, together
with three persons similarly appointed by the Court
of Quarter Sessions of the county of , are to
view the ground proposed for the said road ; and if
they or any five of them view the same, and any
four of the actual viewers agree that there is occasion
for such road, they shall proceed to lay out the same
as agreeable to the desire of the petitioners as may
be, having respect to the best ground for a road and
the shortest distance, in such manner as to do the
least injury to private property ; and make duplicate
reports thereof, stating particularly whether they
judge the same necessary for a public or private
road, together with a plot or draft thereof, and the
courses and distances, and reference to the improve¬
ments through which it may pass, and also that they
have been sworn or affirmed according to law; one of
which said reports to be made to the next Court of
5*
54 PROCEEDINGS FOR OIENING COUNTY ROADS
Quarter Sessions to be held for the county of ,
and the other to the next Court of Quarter Sessions
to be held for the county of
"By the court.
[Seal] Y. Z., Clerk."
The report if in favour of the road proposed, is as
follows :
"To the Honourable the Judges within named :
" We the subscribers appointed by the within or¬
der of court, and by a similar order from the Court
of Quarter Sessions of the county of , to view
and lay out the road therein mentioned, do report,
that in pursuance of the said orders, having been
respectively sworn or affirmed according to law, we
have viewed and laid out and do return for public
[or private] use the following road,namely: Beginning
at [here describe the road in full with the courses
and distances, and refeience to the improvements
through which it will pa ss] a plot or draft whereof
is hereunto annexed. Witness our hands and seals
this day of in the year of our Lord one
thousand eight hundred and "
If unfavourable to the road, the report will run as
follows :
" To the Honourable the Judges within named :
" We the subscribers appointed by the within or¬
der of court, and a similar order from the Court of
Quarter Sessions of the county of , do report,
that in pursuance of the said orders, having been
respectively sworn or affirmed according to law, we
have viewed the route of the proposed road as within
mentioned, and are of opinion that there is no occa¬
sion to lay out the same. Witness our hands and
OF THE LAYING OUT OF ROADS UPON COUNTY LINES. 55
seals this day of in the year of our Lord
one thousand eight hundred and ."
A report in favour of the proposed road is thus
confirmed :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and
" The persons appointed by an order of this court
of sessions last past, and by a similar order of
the Court of Quarter Sessions of the county of ,
to view and lay out a road on the line dividing the
said counties from in county, to
in county, do report, that in pursuance of said
orders they have viewed and laid out and do report
for public [or private] use the following road, to wit:
Beginning [here describe the road fully according to
the report] a plot or draft whereof is to the said re¬
port annexed, which report being read in the manner
and at the times prescribed by law, this court (the
court of the county of concurring therein) do
approve of and confirm the said road for public [or
private] use, and order and direct that it be entered
of record, and shall from henceforth be taken, decreed
and allowed to be a lawful public [or private] road
or highway; and the court further direct that the said
road shall be opened of the breadth of feet,
agreeably to the courses and distances aforesaid, of
which the supervisors of the highways of the town¬
ships through which the said road passes, are to take
notice and govern themselves accordingly.
" By the court.
[Seal.] Y. Z., Clerk."
56
PROCEEDINGS FOR O PENING COUNTY ROADS.
SECTION XI.
OF PRIVATE ROADS.
The provisions of the Act of June 13, 1836, res¬
pecting private roads, are as follows :
"Section 11. The several Courts of Quarter Ses¬
sions shall, in open court as aforesaid, upon the peti¬
tion of one or more persons for a road from their
respective dwellings or plantations to a highway or
place of necessary public resort, or to any private
way leading to a highway, direct a view to be had
of the place where such load is requested, and a re¬
port thereof to be made in the same manner as is
before directed in this Ac ;.
" Section 12. If it shall appear, by the report of
viewers to the court directing the view, that such
road is necessary, the court shall direct what breadth
the road so reported shall be opened, and the proceed¬
ings in such cases shall be entered on record, as be¬
fore directed, and thenceforth such road shall be
deemed and taken to be a, lawful private road."
The 5th section of the Act provides that "the
breadth of a private road shall not in any case ex¬
ceed twenty-five feet."
"Section 15. All private roads shall be opened,
fenced and kept in repair by and at the expense of
the person or persons respectively, at whose request
the same were granted and laid out, and by their
heirs and assigns.
"Section 16. The damages sustained by the
OF PRIVATE ROADS.
57
owners of the land through which any private road
may pass, shall be estimated in the manner provided
in the case of a public road, and shall be paid by the
persons at whose request the road was granted or
laid out: provided, that no such road shall be opened
before the damages shall be fully paid."
Section 55 provides that the expense of a view to
assess the damages sustained by the owner of land
" in the case of a private road, shall be paid by the
person or persons at whose instance the same was
allowed."
"Section 17. Whenever any person shall be desi¬
rous to make use of a private road laid out on the
petition, and at the expense of others, such person
may apply by petition to the Court of Quarter Ses¬
sions of the respective county, to be admitted to par¬
ticipate in the privilege of the said road, and there¬
upon such court shall have power to determine what
sum he shall contribute to the persons at whose ex¬
pense the said road was laid out, and also what
further sum he shall pay to the owners of the soil
over which the said road was made, and upon the
payment thereof, such person shall be entitled to
equal rights and privileges, and be subject to like
duties and liabilities with the original applicants for
said road."
Section 54 provides that " the expense of views of
private roads, and the expense of any review, or of
any view subsequent to a review of a private road,
shall be wholly paid by the persons applying for the
same/' and according to section 58, " in all cases of
a view or review, or of any view subsequent to a
review of a road, a surveyor shall be found and paid
by the persons applying for such views."
58 PROCEEDINGS FOR OPENING COUNTY ROADS.
The following section:; relate to the hanging of
gates across private roads.
"Section 13. In all cases of a private road it shall
be lawful ibr the owners of the land over which the
same may be laid out, or authorized, to apply to the
court aforesaid for leave? to hang and maintain at
their own expense, swinging gates across such road ;
and thereupon the court shall direct the viewers ap¬
pointed to view such road, or in case the road has
been already laid out, may appoint other viewers in
manner aforesaid, to inquire and report whether the
same may be done without much inconvenience to
the persons using such read.
" Section 14. If it shall appear to the court that a
gate or gates may be hung as aforesaid, according to
the prayer of the party, without much inconvenience
to the person or persons using such road, they shall
decree accordingly ; and in such decree they shall
order and direct that such gate or gates shall be
made and kept in repair , and made easy for passing,
by the respective owners of such land."
" Section 57. In case of a separate view directed
upon an application for leave to hang and maintain
gates across a private road, as aforesaid, the expense
of such view shall be pa d by the applicants."
The provisions of the 52d section that " no view
which may be had for any of the purposes aforesaid,
shall be good and valid, unless five of the persons
appointed for the purpose shall view the place in
question, nor unless four of the actual viewers con¬
cur in the report," apply to views of private roads.
Section 1 of an Act passed March 16, 1847, enacts
" that from and after the; passage of this Act, all ob¬
structions to private roads shall be considered a
OF PRIVATE ROADS.
59
nuisance, and shall be subject to the same fines, for¬
feitures and penalties, and to be proceeded against
in the same way as in cases of obstructions to public
roads or highways."
A road from the plantation or dwelling house of
the petitioner to or from the public highway or any
place of public resort as described in the 17th section
of the Act of April 6, 1802 [to which the Act of
June 13, 1836, is similar] is a private road to be laid
out, &c., in the manner therein prescribed, and there
is no authority in any Court of Quarter Sessions to
have it laid out as a public road.1
A road leading from the house of A. into a public
road may be confirmed as a private road, though the
viewers have not reported that it was necessary as a
private road.2
An order of confirmation of a private road need
not specify how it must be opened and kept in repair.3
If the viewers lay out a private road partly on a
public road, it is fatal to their proceedings ; although
the records of the court do not show that a formal
order had issued to open the public road.4
A petition having been presented for a public road,
and the viewers having made a report in favour of
the road as a private road, they cannot maintain an
action against the petitioner for their services ; the
Act of Assembly of April 6, 1802 [identical in this
respect with the Act of June 13, 1836,] which pro¬
vides that the expense of views of a private road
1 Road from Matthew Miller's house, 9 S, & R. 34.
9 3 Case of Kyle's Road, 4 Yeates 514.
4 Case of Neeld's Road, 1 Barr 353.
60 PROCEEDINGS FOR Ol'ENING COUNTY ROADS.
shall be paid by the petitioners, being confined to
cases of applications for a private road.5
A., having a right of way by deed across the land
of B., applied with eight other persons (who were
strangers to the grant) to the Quarter Sessions for a
private road over B.'s ground, which was accord¬
ingly laid out. Notwithstanding the existence of this
right of way, B. is entitled to damages for the open¬
ing of the road.6 In such a case the report of the
jury is not erroneous because it does not designate
who shall pay the damage assessed, the law fixing
that obligation upon those at whose request the road
was granted.7
On the 16th of April, 1838, an Act was passed, the
17th section of which, relating to roads beneath the
surface to coal mines, is as follows :
" From and after the passage of this Act, it shall
and may be lawful for the several Courts of Quarter
Sessions, upon application of any person or persons
for a private road under the surface of any land to
coal mines, to cause a view to be had of the same
premises, and upon return of viewers that said road
is necessary, then the said court shall cause the same
to be entered on record, and thenceforth such road
shall be deemed and taken to be a lawful private
road, shall be opened by the person or persons mak¬
ing application for the same, and shall be kept in
repair at their exclusive cost : provided, that the
viewers, appointed as aforesaid, before making their
return to the court, shall assess the amount of dam¬
ages sustained by the owner or owners, of lands
5 Ernst v. Baker, 1 Browne 326.
8 7 Case of the Road from the Lazaretto, 1 Ashmead 417.
OF PRIVATE ROADS.
61
through which the said road shall be made, and em¬
body the same in their report to the court ; which
damages, as assessed by said viewers, shall be paid
by the person or persons making application for such
road, to the owner or owners of such land."
It has been decided that this section, to give it
effect, must be considered as part of the general road
system of Pennsylvania, regard being had to its spe¬
cial provisions.8
The petition for a private road is in the following
form :
"To the Honourable the Judges of the Court of
Quarter Sessions of the county of
" The petition of A. B. of the said county, respect¬
fully represents,
" That your petitioner labours under great incon¬
venience for want of a private road to lead from his
plantation [or dwelling house] to the public road
running from to in the said county. He
therefore prays the court to appoint proper persons
to view and lay out «the same according to law. And
he will ever pray, &c."
The order for a view and the subsequent proceed¬
ings on an application for a private road, are similar
to those in the case of a public road, except that in
the order these words should be omitted, "stating
particularly whether they judge the same necessary
for a public or private road."
The petition for the appointment of viewers of the
damage occasioned by a private road, is in the fol¬
lowing form :
"To the Honourable the Judges of the Court of
8 Case of Neeld's Road, 1 Barr 353,
6
62 PROCEEDINGS FOR OPENING COUNTY ROADS.
Quarter Sessions of the Peace in and for the county
of
" The petition of A. B. and C. D., respectfully
showeth, that a private road has been lately laid out
and opened by the order of this court, on the petition
of W. X. and Y. Z., extending over the lands of your
petitioners; your petitioners therefore pray your
Honours to appoint proper persons to value their
lands so as aforesaid taken up for the use of the said
road, and to settle and ascertain the proportions to be
paid to them by the several persons for whose use
the same is laid out. And they will ever pray, &e."
The appointment of the viewers, the oath, and the
return of the viewers, are similar to those in the case
of public roads, ante, except that the appointment
should direct the viewers "to value the lands of the
petitioners so taken up for the use of the said road,
and to settle and ascertain the proportions to be paid
to them by the several persons for whose use the
same is laid out," to which the oath of the viewers
and their return should correspond.
The petition for a gate or gates on a private road
is as follows :
" To the Honourable the Judges of the Court of
Quarter Sessions of county :
" The petition of and respectfully
showeth, that your petitioners labour under great
inconveniences for want of the privilege of hanging
a swinging gate or gates in a private road leading
from to . They therefore humbly pray
the court to appoint proper persons to view and
judge of the utility of granting them the privilege
aforesaid. And they will ever pray, &c."
The appointment of viewers is thus made :
OF PRIVATE ROADS
63
"At a Court of Quarter Sessions of the Peace for
the county of held :
" Upon the petition of and stating that
they labour under great inconveniences for want of
the privilege of hanging a swinging gate or gates in
a private road leading from to and pray¬
ing the court to appoint proper persons to view and
judge of the utility of granting them this privilege,
the court upon due consideration had of the premises,
do order and appoint L. M., N. 0., P. Q., R. S., T.
U. and V. W., to view the said road, and inquire
and judge whether such gate or gates may, without
much inconvenience to the persons for whose use the
said road was granted, be hung in the same, and do
direct that they or any four of them do make report
accordingly to the next Court of Quarter Sessions."
The viewers' report, if favourable, is as follows :
" To the Honourable the Judges of the Court of
Quarter Sessions of the Peace for the county of
" We the persons appointed by the within order to
view and judge of the propriety of hanging a gate or
gates in the road therein mentioned, do report that
we have viewed the premises, and are of opinion that
a gate may be hung upon the said road at and
another gate at according to the prayer of the
petitioners, without inconvenience to the persons
using the said road. Witness our hands this
day of in the year of our Lord one thousand
eight hundred and ."
The confirmation of the report is thus entered :
"L. M., N. 0., P. Q., R. S., T. U. and Y. W., [or
any four of them] the persons appointed by the order
of this court of sessions, in the year of our
Lord one thousand eight hundred and , upon
64 PROCEEDINGS FOR OFENING COUNTY ROADS.
the petition of and for the privilege of
hanging a swinging gate or gates in a private road
leading from to , to view and judge of the
utility of granting them this privilege, do report that
they have viewed the premises, and are of opinion
that a gate may be hung upon the said road at
and another gate at according to the prayer of
the petitioners, without inconvenience to the persons
using the said road, which report being read, the
court upon due consideration do approve of and con¬
firm the same, and do order that the said gates may
be hung upon the said road accordingly, and that the
same shall be made and kept in repair by the owner,
of the said land, and made easy for the passage of
persons using the said road."
When the viewers report against the proposed
gates, their report should be like that in favour as
far as the words "are cf opinion that" inclusive,
after which it should run thus,
"gates cannot be hung upon the said road
according to the prayer of the petitioners without
inconvenience to the persons using the said road.
Witness," &c. [as before,]
CHAPTER IV.
of the vacating of roads.
The Act of June 13, 1836, contains the following
provisions for the vacating of roads:
" Section 18. The courts aforesaid [the Quarter
Sessions] shall within their respective counties, have
authority, upon application to them by petition, to
inquire of and change or vacate the whole or any
part of any private or public road which may have
been laid out by authority of law, whenever the
same shall become useless, inconvenient or burden¬
some, and the said courts shall proceed therein by
views and reviews, in the manner provided for the
laying out of the public roads and highways.
" Section 19. Roads laid out and confirmed as
aforesaid, but not opened, may be vacated and
annulled upon the petition of a majority of the
original petitioners of the said road, resident within
the respective county, in the same manner as other
roads may be vacated: provided, that no person
residing or owning land along the route of such
road, shall in such case be a viewer or reviewer."
" Section 22. Provided, that nothing in this Act
shall be construed to give authority to any of the
courts of the commonwealth, to vacate any lane,
street or highway within any city, borough, town
6*
66
OF THE VACATING OF ROADS
plot or village laid out by the late proprietaries or
by any other person, and dedicated to the public
use; nor to vacate any cartway laid out by the order
of court and not repairable at the charge of the
public; nor shall such authority extend to any road,
way or passage claimed by any person as a private
right, nor to rivers or streams of water.
"Section 23. Every application to vacate any
road as aforesaid, shall be in writing and signed by
the applicants; it shall set forth in a clear and distinct
manner the situation and other circumstances of such
road or highway, or the part thereof which the
applicants may desire to have vacated as aforesaid.
" Section 24. Whenever the whole or any part of
a road shall be changed or supplied, the same shall
not be shut up or stopped until the road laid out to
supply the place thereof, shall be actually opened
and made."
"Section 26. Roads upon and along a line which
divides two adjoining counties, may be altered and
vacated in the manner provided in the case of other
roads, except that the Court of Quarter Sessions of
each of the said counties shall appoint three of the
viewers, and that a report as aforesaid shall be made
to the said courts respectively, and that the said
courts shall otherwise have and exercise concurrent
jurisdiction therein."
An order to view and vacate a public road is not
a matter of right in the petitioner, but of discretion
in the Court of Quarter Sessions.1
The report of reviewers vacating an old road and
substituting a new one, must be accompanied by a
1 Case of the Newvi lle Road, 8 Watts 172.
OF THE VACATING OF ROADS.
67
plot or draft of the part vacated as well as of the
new road substituted, with the courses and distances.2
The uniform practice under the road laws has
been to allow two full terms for exceptions to the
reports of juries, as well on proceedings for vacating
as opening roads, and as well in the City of Phila¬
delphia as elsewhere.3
A jury having been appointed on the 12th of
October, 1835, to report on the expediency of
vacating a street in the City of Philadelphia, made
their report on the 19th of the same month, which
was confirmed nisi on the 26th of the same month,
and on the 13th of January, 1836, their report was
confirmed absolutely. The Supreme Court quashed
the proceedings.4
The Court of Quarter Sessions having confirmed
the report of a jury which reported in favour of
vacating a road in a borough, the Supreme Court
refused to reverse their decree, on the ground that
the road vacated was a street and within the juris¬
diction ill section 22 of the Act of June 13, 1836,
that fact not appearing upon the face of the pro¬
ceedings.5
A petition being presented for the vacation of a
road, the Court of Quarter Sessions appointed view¬
ers; but the order to the viewers directed them to
proceed to lay out the road, &c. The viewers
reported in favour of vacating the road, and no
exception having been made in the court below, the
Supreme Court affirmed the proceedings.6
a Case of Rutherford's Road, 10 S. & R. 120.
3 * Case of Adelphi Street, 2 Wharton 174.
6 * Case of the Allentown Road, 5 Wharton 442.
68
OF THE VACATING OF ROADS.
The 44th section of "an Act authorizing the lay¬
ing out of certain state roads and for other pur¬
poses," passed April 5, 3.843, authorizes the com¬
missioners appointed by the 43d section of the Act
to review that part of the state road from Allentown
to West Chester, which lies between Allentown and
Pottstown, to vacate so much of any road as may
be supplied by the new one, if it should appear
expedient so to do, and the 46th section of the said
Act repeals the 20th section of the Act of June 13,
1836, (empowering the Court of Quarter Sessions
to vacate roads), so far as relates to the said Act of
April 5, 1843.
"A Supplement to the Act relating to roads, bridges
and highways," passed on the 21st of April, 1846,
extends the powers of the Courts of Quarter Sessions
as to vacating roads, by providing "that the powers
of the Courts of Quarter Sessions of this common¬
wealth, to vacate public and private roads, are
hereby extended to all roads, whether laid out by
authority of law, or existing by prescription or lapse
of time, and generally to all roads except private
roads, resting upon express grant, the evidence of
which is still in existence, excepting in such counties
as the power to lay out aid vacate public roads is,
or may be, vested in some other tribunal than in the
Court of Quarter Sessions of the Peace; excepting
also roads laid out by Act of Assembly, and [which]
are expressly exempted from the jurisdiction of said
courts."
The following are the forms used in cases where
the road has been laid out and confirmed, but not
opened, and a majority of the original petitioners
OF THE VACATING OF ROADS.
69
pray for the annulling of the road. [See Section
19, ante A
"To the Honourable the Judges of the Court of
Quarter Sessions in and for the county of
"The petition of the subscribers, inhabitants resid¬
ing in the said county, being a majority of the
original petitioners, respectfully represents,
"That a petition was presented to this court of
sessions in the year of our Lord , signed
by your petitioners, praying the court to appoint
proper persons to view and lay out a road from
to , which was accordingly done, and
the said viewers so appointed, after being duly quali¬
fied according to law, did view and lay out and re¬
turned for public [or private] use, a road beginning
[here describe the road according to the return],
which was on due consideration approved of and
confirmed by the court; that the said road not yet
having been opened, and it appearing to your pe¬
titioners to be useless, and if opened would become
burthensome, your petitioners therefore pray the court
to appoint proper persons, not residing on the route
of the said road, to view the same and make report
according to law.
"And your petitioners will ever pray, &c."
The order of court appointing the viewers prayed
for, is as follows:
"At a Court of Quarter Sessions of the Peace for
the county of held on the day of
in the year of our Lord one thousand eight hundred
and :
" Upon a petition of sundry inhabitants residing in
the said county, being a majority of the original peti¬
tioners, stating that a petition was presented to this
70
OF THE VACATING OF ROADS.
court of sessions in the year of our Lord
signed by the said petitioners, praying the court to
appoint proper persons to view and lay out a road
from to , w hich was accordingly done ;
and the said viewers so appointed, after being duly
qualified according to law, did view and lay out and
return for public or private use, a road beginning
[here describe the road as in the petition], which was
on due consideration approved of and confirmed by
the court; that the said road not yet having been
opened, and it appearing to the said petitioners to be
useless, and, if opened, would become burthensome ;
and therefore praying the court to appoint proper
persons not residing on the route of the said road, to
view the same and make report according to law :
whereupon the court do order and appoint G. IL, I.
J., K. L., M. N., 0. P. and Q. R., who, after being
respectively sworn or affirmed to perform the duties
of their appointment wi h impartiality and fidelity,
are to view the said roac. so laid out, and to consider
and judge whether in their opinion the said road, if
opened, will be useless and burthensome; and if they
or any five of them view the said road, and any four
of the actual viewers agree that the said road, if
opened, will be useless acid burthensome, they are to
make report accordingly, stating also that they have
been sworn or affirmed according to law; which said
report is to be made to the next Court of Quarter
Sessions to be held for the said county.
" By the court.
[Seal.'] Y. Z,, Clerk "
The report should be as follows :
" To the Honourable trie Judges within named :
" We the subscribers appointed by the within order
OF THE VACATING OF ROADS.
71
of court, to view the road therein mentioned, do re¬
port that in pursuance of the said order, having been
respectively sworn or affirmed according to law, we
have viewed the said road, and are of opinion that
the same if opened, will [or will not] be useless and
burthensome. Witness our hands and seals this
day of in the year of our Lord one thousand
eight hundred and
The report, if in favour of annulling the road, is
thus confirmed :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
" G. H., I. J., K. L., M. N., 0. P. and Q. R., the
persons appointed by order of this court of ses¬
sions in the year of our Lord one thousand eight
hundred and , to view a road laid out from
to , and to consider and judge whether
the said road, if opened, will be useless and burthen-
some, who having been sworn or affirmed according
to law, do report that they have viewed the said road,
and are of opinion that the same, if opened, will be
useless and burthensome :
" Whereupon the court do approve of and confirm
the said report, and order that the confirmation here¬
tofore made by this court of the report and proceed¬
ings had to lay out the said road, be annulled.
" By the court.
[Seal.] Y. Z., Clerk"
The petition for the vacating of a road is as follows :
"To the Honourable the Judges of the Court of
Quarter Sessions of the county of
"The petition of the undersigned, inhabitants of
72
OF THE VACATING OF ROADS
the township [or townships] of in the said
county, respectfully represents:
" That a road has been laid out from to ,
which road [or, part of which road, beginning at
and ending at ], your petitioners con¬
ceive is now become useless, inconvenient and bur-
thensome to the inhabitants of the said township [or
townships]. Your petitioners therefore pray the
court that the said road may be vacated, agreeably
to the Act of Assembly in such case made and pro¬
vided. And they will ever pray, &c."
The order upon which is as follows :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
"Upon the petition of sundry inhabitants of the
township [or townships] of in the said county,
stating that a road had been laid out from to
, which road [or part of which road begin¬
ning at and ending at ] the petitioners
conceive is now become useless, inconvenient and
burthensome to the inhabitants of the said township
[or townships], and therefore praying that the said
road may be vacated agreeably to the Act of Assem¬
bly in such case made and provided, whereupon the
court do order and appoint G. H., I. J., K. L., M. N.,
0. P. and Q. R., who after being respectively sworn
or affirmed to perform the duties of their appointment
with impartiality and fidelity, are to view the road
in the said petition prayed to be vacated, and to con¬
sider and judge whether it is become useless, incon¬
venient and burthensome ; and if they, or any five of
them view the said road, and any four of the actual
OF THE VACATING OF ROADS.
73
viewers agree that the same is become useless, in¬
convenient and burthensome, they are to make re¬
port accordingly to the next Court of Quarter Ses¬
sions to be held for the said county. In which report
they shall state that they have been sworn or
affirmed according to law.
"By the court.
[Sea?.] Y. Z., Clerk"
The report is as follows :
"To the Honourable the Judges within named:
"We the subscribers appointed by the within order
of court to view the road therein mentioned, do re¬
port that in pursuance of the said order, having been
respectively sworn or affirmed according to law, we
have viewed the said road, and are of opinion that
the same is [or is not] useless, inconvenient and bur-
thensome, and therefore ought f or ought not] to be
vacated. Witness our hands and seals this
day of in the year of our Lord one thousand
eight hundred and ."
The report when in favour of vacating the road is
thus confirmed :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and
" The persons appointed by order of this court of
sessions, in the year of our Lord one thousand
eight hundred and , to view a road leading
from to and to consider and judge
whether the same is become useless, inconvenient
and burthensome, who, having been duly sworn or
affirmed according to law, report that they have
viewed the road therein mentioned, and are of opi-
7
74
OF THE VACATING OF ROADS.
nion that it is become useless, inconvenient and bur-
thensome to the inhabitants of the township [or
townships] through which it passes, and ought.to be
vacated : Whereupon the court approve of and con¬
firm the said report, and order that the said road be
vacated accordingly.
" By the court.
[Seal.] Y. Z., Clerk."
The petition for the vacating of state roads [see sec¬
tion 20 of the Act of June 13,1836, ante] and the pro¬
ceedings thereon, are in substance the same as those
in the case of county roads. The following is the
form of the petition for the vacating of a state road
rendered useless by the making of a turnpike road.
[See section 21, ante.]
"To the Honourable the Judges of the Court of
Quarter Sessions of county :
* "The petition of the subscribers respectfully repre¬
sents :
" That part of the state road leading from to
in the township [or townships] of in
the said county, has been supplied and rendered use¬
less by a substantial and permanent turnpike road
made and completed according to law from
to
"Your petitioners therefore pray the court to ap¬
point proper persons to view the said state road so
supplied and rendered useless, and make report to
the court according to law. And they will ever
pray, &c."
The order to view, the report and confirmation are
in substance the same as in the case of the vacation
of a county road.
CHAPTER V.
of bridges.
The Act of June 13, 1836, contains the following
provisions upon this subject.
" Section 34. Where a small creek over which a
bridge may be necessary, shall be on the boundary
or on the division line of townships, the bridge shall
be built and maintained at the joint and equal ex¬
pense of the said townships, by their respective
supervisors, in the manner directed by law in the
case of public roads which may be the division line
of townships.
"Section 35. When any river, creek or rivulet
over which it may be necessary to erect a bridge,
crosses a public road or highway, and the erecting
of such bridge requires more expense than it is rea¬
sonable that one or two adjoining townships should
bear, the court having jurisdiction as aforesaid, shall,
on the representation of the supervisors, or on the
petition of any of the inhabitants of the respective
townships, order a view in the manner provided for
in the case of roads; and if on the report of viewers,
it shall appear to the court, grand jury and com¬
missioners of the county, that such bridge is neces¬
sary, and would be too expensive for such township
or townships, it shall be entered on record as a
county bridge.
76
OF B3IDGES.
"Section 36. Whenever a bridge shall be author¬
ized and recorded as a county bridge, it shall be the
duty of the commissioners to procure an estimate of
the cost thereof, and provide in the county levies,
the moneys necessary to defray the same, and pro¬
ceed to have such bridge erected by contract or
otherwise, as shall seem to them expedient.
"Section 37. Viewers of the site of a bridge ap¬
pointed as aforesaid, shall have authority by virtue
of their appointment, to report also whether any
change in the course or bed of the road to be con¬
nected therewith, will be necessary, in order to the
erection of such bridge at the most suitable place, or
at the least expense, or in the best manner; and the
same being approved by the commissioners of the
county and also by the court, such road shall be
altered accordingly.
"Section 38. Provided nevertheless, that the view¬
ers shall cause every such variation to be accurately
surveyed, and a plot thereof to be made and returned
with their report.
" Section 39. Every bridge erected by the com¬
missioners of any county, or under contract with
them, shall be inspected by six fit persons to be
appointed by the Court of Quarter Sessions of the
respective county, and report thereof shall be made
by them to the said court.
"Section 40. If any such bridge shall be approved
by the court, and the same shall have been erected
under contract with the commissioners as aforesaid,
the money shall be paid agreeably to such contract.
".Section 41. If the persons appointed to inspect
any bridge erected by contract as aforesaid, shall not
approve of the same, they shall report to the court
OV BRIDGES.
77
what sum, in their judgment, ought to be deducted
from the sum stipulated in such contract; and there¬
upon the court shall grant a rule upon the builder or
contractor, to show cause against the said report, at
a time and place in such rule to be named.
"Section 42. After the service and return of such
rule, it shall be lawful for the builder or contractor to
file a declaration or statement in the Court of Common
Pleas of the respective county, upon the contract
made by him with the commissioners aforesaid, and
thereupon proceed to trial, in due course, in like
manner as if an action had been commenced by him
upon such contract, against the county, or at his
election he may show cause against the said report,
and thereupon the said court shall determine the mat¬
ter as justice and equity shall require.
" Section 43. When any such bridge shall be erect¬
ed by the commissioners of the county, or under their
superintendence, if the same shall not be approved
by the persons aforesaid to inspect the same, they
shall report in what respect the said bridge is de¬
ficient, and whether or not the same has occurred
through the default, neglect or official misconduct of
the said commissioners, or any of them, and what in
their judgment is the value of such bridge, and there¬
upon the court shall in like manner grant a rule upon
the commissioners to show cause against such report.
"Section 44. After the service and return of such
rule, it shall be lawful for the commissioners to have
an issue directed upon the said report, in the matters
aforesaid, to the Court of Common Pleas of the re¬
spective county, to be tried by a jury, or, at their
election, they may show cause against the same, and
7*
78
OF BRIDGES.
thereupon the court shall determine the matter in a
summary way.
" Section 45. If it shall appear upon the trial of such
issue, or upon investigation by the court as aforesaid,
that such bridge is insufficient, or that it has been
erected at an expense greater than its value, through
the neglect or official misconduct of any one or more
of the said commissioners, it shall be lawful for the
county to recover, against such delinquent commis¬
sioner or commissioners, the damages sustained by
reason of the default of them or either of them as
aforesaid respectively.
" Section 46. Bridges over any river, creek or rivu¬
let, being on the line of adjoining counties, shall be
authorized in the manner provided in the case o*f other
county bridges, except that the Court of Quarter Ses¬
sions of each county shall appoint three of the view¬
ers, and that a report as aforesaid be made to the said
courts respectively, and that the said courts shall,
together with the grand juries and commissioners
of the respective counties, in all other respects, have
and exercise a concurrent jurisdiction and discre¬
tion therein.
" Section 47. Every such bridge shall be construct¬
ed by contract with the commissioners of both the
said counties; it shall be inspected in the manner
aforesaid by persons appointed by the Court of Quar¬
ter Sessions of either of the said counties; it shall be
maintained and kept in repair by said commissioners
at the joint and equal charge of both counties, and if
either county shall necessarily incur more than its due
proportion of such charge, it shall be lawful for such
county to recover from the other county the excess
so incurred in an action to be founded upon this Act.
OF BRIDGES.
79
" Section 48. It shall be lawful for the undertaker
of any public bridge to enter upon the lands and
enclosures near to the place where such bridge is to
be built, for the purpose of searching for and pro¬
curing the materials necessary for the building of
such bridge, in like manner and with like authority
as is hereinbefore provided in behalf of the super¬
visors of the public roads in the like case. [Seepost, in
the chapter on Supervisors.]
" Section 49. If the undertaker of such bridge and
the owner of such materials cannot agree upon the
sum to be paid for the damages which may be done
by the taker of such materials, such damages shall
be ascertained in the manner provided in the case of
materials taken by the supervisors of the public roads.
{ See post, in chapter on Supervisors.]
66 Section 50. Provided nevertheless, that the dam¬
ages shall be ascertained and paid, or secured to be
paid, to the satisfaction of the owner of such materials,
before the same may be dug, quarried or removed
by such undertaker."
£tf Section 56. The expense of the inspection or view
of a county bridge as aforesaid, shall be paid by the
respective county; but if such bridge shall not be
approved, the said expense shall be recoverable by
such county, as damages against the delinquent com¬
missioner or contractor."
Under the Act of June 13,1836, the Court of Quar¬
ter Sessions may authorize the erection of a bridge
over any river or stream through a public highway.*
To make a bridge a county charge, it must ap-
1 Bridge over S/nithfield Creek, 6 Wharton 363.
80
OF BRIDGES.
pear by the report of the viewers that five of them
had viewed the place, and such bridge was necessary.2
Under the Act of June 13, 1836, the report of the
viewers upon the subject of a bridge must be made
to the next term. A report having been made on
February 3, 1841, upon an order made on the pre¬
ceding day, the proceedings were quashed.3
There is nothing in the Acts of Assembly relating
to bridges, to prevent the county commissioners from
building new bridges over any stream, provided that
such bridges are approved of in the manner declared
in section 35 of the Act of June 13, 1836:4 Therefore
when the superstructure of a county bridge had been
swept away by a freshet, it was held that the county
commissioners (though perhaps bound to repair it),
might erect a new bridge over the same stream at
another place; and that an order of the Quarter Ses¬
sions for the appointment of viewers for such purpose
was regular and proper, though there was no appli¬
cation to vacate the former bridge.5
A bridge erected over the Conococheague creek
by Franklin county, having been pulled down by the
Chambersburgh & Bedford Turnpike Road Com¬
pany, who erected a new bridge in its place, it was
decided that the materials of the old bridge belonged
to the county, and that the turnpike company had
no right to convert them to their own use.6
An Act of Assembly requiring a canal company
to erect and keep in repair a bridge wherever the
canal crosses a public or private laid out road, does
not apply to a road merely dedicated to public use,
8 * 4 4 Bridge over Smithfield Creek, 6 Wharton 363.
® Chambersburgh & Bedford Turnpike Road Company v The
Commissioners of Franklin county, 6 S. & R. 229.
OF IJRIDGF.S
81
over which the supervisors have not exercised any
authority.7
The following sections of the Act of June 13, 1836,
relate to the preservation of bridges.
" Section 63. The supervisors aforesaid shall, with¬
in their respective townships, put up and maintain
in a conspicuous place, at or near each end of all
bridges erected at the expense of the public, hav¬
ing an arch of the length or span of forty-five feet or
upwards, a notice in large and legible characters, of
the fines and penalties hereinafter provided for the
protection of such bridges, under the penalty of a
sum not exceeding twenty dollars.*
" Section 64. jProvided, that if any such bridge
shall be built across the line of townships, the super¬
visors of the said townships shall be liable as afore¬
said, to put up and maintain such notices only at or
near the end of the bridge within their respective
townships."
" Section 70. If any person shall wilfully ride,
drive or lead, or cause another person to ride, drive
or lead any horse or other beast of burden, faster
than a walk when crossing any wooden bridge hav¬
ing an arch of the length or span of forty-five feet or
upwards, such persons shall, for every such offence,
forfeit and pay a sum not less than five dollars nor
more than thirty dollars: provided nevertheless, that
notice of the provisions of this section be set up in
7 Union Canal Company v. Pi negro ve Township, 6 W. & S. 5G0.
* Section 69 provides that any person who shall wilfully destroy,
deface or injure any notice put up at any public bridge as aforesaid,
shall for every such offence forfeit and pay a sum not less than five
dollars nor more than fifteen dollars.
82
OF BRIDGES.
the manner hereinbefore required. [See section 63,
above.]
" Section 71. If any person shall wilfully drive or
cause to be driven, any horned cattle faster than a
walk, when crossing any such bridge, such person
shall, for every such offence, forfeit and pay a sum not
less than five dollars nor more than thirty dollars '.pro¬
vided nevertheless, that notice hereof be set up in the
manner hereinbefore requ red. [See section 63,above.]
" Section 72. If any person shall carry fire over
such bridge, except in a lantern or in some vessel in
which it will be fully secured, such person shall for¬
feit and pay the sum of five dollars : provided never¬
theless, that notice of the provisions of this section be
set lip in the manner hereinbefore required, [See
section 63, above.]
" Section 73. Provided also, that nothing in this
Act shall be so construed as to impair, in any wise,
any right or privilege which any company, incorpo¬
rated by any Act of Assembly of the commonwealth,
may have to make regulations for the preservation
of any bridge erected by such company, or which
mav be under their care.
m
" Section 74. If any person shall wilfully set fire
to any wooden bridge within this commonwealth,
with intent to destroy the same, or shall be accessary
thereto before the fact, such person shall, for every
such offence, be liable to indictment, and to the pun¬
ishment provided by law in cases of arson, and also
shall forfeit and pay a sum not more than two thous¬
and dollars, at the discretion of the court having cog¬
nizance of such offence, for the use of the county,
township or townships, corporations or persons ag¬
grieved.
OF BRIDGES.
83
"Section 75. All fines and pecuniary penalties
which may be incurred under any of the provisions
of this Act, shall, unless it be otherwise especially
provided, be recoverable in the name of the common¬
wealth, at the instance of any person who will sue
therefor, in the same manner as debts of like amount
are recoverable, with costs of suit, and one moiety
thereof shall be paid to the person suing for and re¬
covering the same, and the residue shall be paid into
the treasury of the respective townships, for the use
of the supervisors of the public roads."
A Supplement to the Act relating to roads, high¬
ways and bridges, passed on the 13th of April, 1843,
directs, " that from and after the passage of this Act,
it shall be the duty of the county commissioners of
the several counties of this commonwealth, to repair
all bridges erected by the county, and to pay the
expenses of such repairs out of the county treasury
in the usual manner, except the Counties of Bedford,
Washington, Westmoreland, Tioga, Potter, Cambria,
Somerset, Armstrong, Allegheny and Susquehanna."
Section 5 of "an Act relating to public roads in the
counties therein named," passed February 24, 1845,
directs " that from and after the passage of this Act,
it shall be the duty of the county commissioners of
Allegheny county, to repair all bridges erected by
the said county, and to pay the expenses of such re¬
pairs out of the county treasury in the usual man¬
ner."
The following are the forms in use upon the appli¬
cation for a bridge :
First, the petition.
" To the Honourable the Judges of the Court of
Quarter Sessions of the Peace of the county of :
84
OF BRIDGES.
" The petition of the subscribers, inhabitants of the
township [or townships] of in said county, res¬
pectfully represents :
" That a bridge is much wanted over creek
at a place where the public highway from to
crosses the same in the township of in
the said county, and that the erection of such bridge
will require more expense than it is reasonable that
the said township [or townships] should bear.
"Your petitioners therefore pray the court to ap¬
point proper persons to view the premises, and to
take such order on the subject as is required and
directed by the Act of Assembly in such case made
and provided. And they will ever pray, &c."
The order of the court whereon is as follows :
"At a Court of Quarter Sessions of the Peace of the
county of held at on the day of
• in the year of our Lord one thousand eight
hundred and :
"Upon the petition of sundry inhabitants of the
township [or townships] of ,m the said county,
setting forth that a bridge is much wanted over
creek at the place where the public highway from
to crosses the same, in the township of
in the said county, and that the erection of
such bridge will require more expense than it is
reasonable that the said township [or townships]
should bear, and praying the court to appoint proper
persons to view the premises, and to take such order
on the subject as is required and directed by the Act
of Assembly in such case made and provided: where¬
upon the court on due consideration had of the pre¬
mises, do order and appoint G. H., I. J., K. L., M.
N., 0. P. and Q. R., who, after being respectively
OF BRIDGES.
85
sworn or affirmed to perform the duties of their ap¬
pointment with impartiality and fidelity, are to view
the place proposed for the said bridge, and if they or
any five of them view the same, and any four of the
actual viewers agree that there is occasion for such a
bridge, and that the erection of the said bridge would
require more expense than it would be reasonable
that the said township [or townships] should bear,
make report accordingly ; and the said viewers are
further authorized to examine the route of the road
crossing the creek over which the said bridge is
prayed for, and if in their opinion a change or va¬
riation in the bed of the road would be an improve¬
ment and saving of expense in the erection of such
bridge, they are to make report thereof and cause
such variation as aforesaid, to be accurately surveyed,
and a map or plot thereof to be made, which shall
accompany the said report ; the report [or reports]
aforesaid to be made to the next Court of Quarter
Sessions to be held for the said county of , and
in which report they shall state that they have been
sworn or affirmed according to law.
" By the court.
ISeal.] Y. Z., Clerk."
The report in favour of the bridge is thus drawn
up :
"To the Honourable the Judges within named :
"We the subscribers appointed by the court, to
view the place proposed for a bridge in the within
order mentioned, after being respectively sworn or
affirmed according to law, do report that in our opi¬
nion a bridge over creek at the place where
the public highway from to crosses the
same, is necessary, and that the erection of such a
8
66
OF BRIDGES.
bridge would be attended with more expense than it
is reasonable that the said township [or townships]
should bear. Witness our hands and seals this
day of in the year of our Lord one thousand
eight hundred and ."
When the viewers are of opinion that a change
in the route of the road would be desirable, they re¬
port as in the above form to the end of the words
"the said township should bear/5 and then proceed
as follows :
"And we further report to the court, that after
proper examination we are of opinion that a change
or variation in the bed and route of the road would
be an improvement and saving of expense in the
erection of the said bridge, and therefore report that
the route of the said road should be changed in the
following manner [state particularly the proposed
change, and annex a map or plot of it.] Witness our
hands and seals this day of in the year
of our Lord one thousand eight hundred and .55
An unfavourable report should run as follows :
" To the Honourable the Judges within named :
" We the subscribers appointed by the court to
view the place proposed for the bridge in the within
order mentioned, after being respectively sworn or
affirmed according to law. do report, that in our opi¬
nion a bridge over creek at the place where
the public highway from to crosses the
same, is unnecessary [or, would not be attended with
more expense than it is reasonable that the said town¬
ship [or townships ! should bear.] Witness our hands
and seals this day of in the year of our
Lord one thousand eight hundred and .55
The Court of Quarter Sessions and the Grand Jury
OF BRIDGES
87
of the county having considered a report in favour of
a bridge, and concurred with the viewers as to its
necessity, and as to its being attended with more ex¬
pense in the erection than the township [or town¬
ships] in which it would be situated, could reasonably
bear, the Court of Quarter Sessions then sends the
following certificate to the commissioner of the
county.
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and
"A petition having been presented to this court for
the appointment of persons to view and report, ac¬
cording to law, on the erection of a bridge prayed for
in the said petition, the court appointed proper per¬
sons for that purpose, who made report that after ex¬
amining the premises, they are of opinion that a bridge
is necessary over creek at the place where the
public highway from to crosses the said
creek in the township [or townships] of in the
said county, and that the erection of such bridge
would be attended with more expense than it is rea¬
sonable that the said township [or townships] should
bear, and the said report having been submitted at
sessions to the said court and the grand jury
of the county, they are, upon due consideration, res¬
pectively of opinion that the said bridge is necessary,
and that the erection of the same would be attended
with more expense than the township [or townships]
should bear, and do therefore concur in the said re¬
port, and the same is ordered to be entered of record,
and a copy of this record furnished to the commis-
88
OF BlilDGES.
sioners of county, by the Clerk of the Court of
Quarter Sessions thereof.
" By the court.
[Seal.] Y. Z., Clerk."
The bridge having been built by the county com¬
missioners, it becomes their duty to present a petition
to the Court of Quarter Sessions, praying for the ap¬
pointment of persons to inspect it, which petition is
drawn up as follows :
"To the Honourable the Judges of the Court of
Quarter Sessions of the Peace of the county of
"The petition of the undersigned, the commission¬
ers of the said county, respectfully showeth,
" That it having appeared to the court, the grand
jury and the commissioners of the said county, that a
bridge over creek at the place where the pub¬
lic highway from to crosses the said
creek in the township [or townships] of in the
said county, was necessary, and that it would be too
expensive for the said township [or townships] to
erect, the same having been entered of record, your
petitioners procured an estimate to be made, as nearly
as might be, of the expense of the same, amounting
to the sum of dollars, and did proceed to have
such bridge erected, by entering into a contract with
L. S. of the county of [or, as the case may
have been] for the building of the same; that the said
bridge is now completed agreeably to the said con¬
tract [or otherwise~\ : Wherefore they pray the court
to appoint six fit persons to inspect the said bridge
and the workmanship thereof, agreeably to the Act
of Assembly, and make report to the next Court of
Quarter Sessions according to law."
[Signed by the Commissioner s.~\
OF BRIDGES
89
Whereupon the court make the following order:
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
"Upon the petition of and ,-com¬
missioners of the said county, stating that it having
appeared to the court, to the grand jury and the com¬
missioners of the said county, that -a 'bridge over
creek, at the place where the public highway from
to crosses the said creek in the township
[or townships] of in the said county, was ne¬
cessary, and that it would be too expensive for the
said township [or townships] to erect, the same hav¬
ing been entered on record, the petitioners procured
an estimate, as nearly as might be, of the expense of
the same, amounting to the sum of dollars, and
did proceed to have such bridge erected by entering
into a contract with L. S. [or otherwise, according
to the petition of the county commissioners] for the
building of the same; that the said bridge is now com¬
pleted, agreeably to the said contract [or otherwise],
and therefore praying the court to appoint six fit per¬
sons to inspect the said bridge and the workmanship
thereof, agreeably to the Act of Assembly, and to
make report to the next Court of Quarter Sessions,,
according to law : Whereupon the court appoint GL
H., I. J., K. L., M. N., 0. P. and Q, R., who, after
being respectively sworn or affirmed according to
law, are to inspect the said bridge and the workman¬
ship thereof, and make report accordingly to the next
court according to law. In which report they shall
8*
90
OF BRIDGES.
state that they have been sworn or affirmed accord¬
ing to law.
- " By the court.
[iSta/.] Y. Z., Clerk"
The report of the inspectors, when favourable, will
run thus :
"To the Honourable the Judges within named :
" We the subscribers appointed by the court to in¬
spect a certain bridge in the within order mentioned,
having been respectively sworn or affirmed accord¬
ing to law, do report that we have viewed and care¬
fully examined the same, and are of opinion that it is
completed in a substantial and workmanlike manner,
according to the contract entered into with the com¬
missioners of the said county [or otherwise, as the
facts may have been.] Witness our hands and seals
this day of in the year of our Lord one
thousand eight hundred and ."
The following is the form in which an unfavour¬
able report should be drawn up :
"To the Honourable the Judges within named:
"We the subscribers appointed by the court to in¬
spect a certain bridge in the within order mentioned,
having been respectively sworn or affirmed accord¬
ing to law, do report that we have viewed and care¬
fully examined the same, and are of opinion that it
is not completed in a substantial and workmanlike
manner, according to the contract entered into with
the commissioners of th.e said county [or otherwise,
as the case may have been], and that in their judg¬
ment the sum of dollars should be deducted
from the sum stipulated in the said contract, or (if the
bridge has been erected by the county commissioners
or under their superintendence) that the said bridge
OF BRIDGES
91
is deficient in the following respects, namely, ,
and that the same has occurred through the default
[or neglect, or official misconduct] of the said com¬
missioners [or of one [or two] of the said com¬
missioners], and that in their judgment the said bridge
is worth only the sum of dollars. Witness our
hands and seals this day of in the year
of our Lord one thousand eight hundred and ."
A report in favour of a bridge would be thus con¬
firmed :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
" The persons appointed by order of this court of
sessions last past, to view the bridge lately
erected over creek at the place where the pub¬
lic highway from to crosses the same in
the township [or townships] of in the said
county, by L. S. of , under contract with the
commissioners of the said county [or, as the case may
have been], after being respectively sworn or affirmed
according to law, do report that they have viewed and
carefully examined the same, and are of opinion that
it is completed in a substantial and workmanlike
manner, according to contract entered into with the
commissioners of the said county for that purpose [or,
as the case may have been], which report being read
and considered, is approved of and confirmed by the
court.
" By the court.
\_Seal.~] Y. Z., Clerk"
The following are the forms in use, where the pro-
92
OF BRIDGES.
posed bridge would be over a creek forming the
boundary between two counties :
"To the Honourable the Judges of the Court of
Quarter Sessions of the county of :
" The petition of the subscribers, inhabitants of the
counties of and , respectfully showeth,
" That a bridge is much wanted over creek,
being the line of the said counties, at the place where
the public highway from to crosses the
same in the township of in the county of
and in the township of in the county of ,
and that the erection of such bridge will require more
expense than it is reasonable that the said townships
should bear: wherefore,your petitioners praythe court
to appoint proper persons to view the premises, and
take such order on the subject as is required and
directed by the Acts of Assembly in such case made
and provided. And they will ever pray, &c."
A copy of the foregoing petition should be pre¬
sented to the Court of -Quarter Sessions of each of the
two counties.
The court makes the following order upon the pe¬
tition:
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of In the year of our Lord one thousand eight
hundred and :
" Upon the petition of sundry inhabitants of the
counties of and , setting forth that a
bridge is much wanted over creek, being the
line of the said counties, at the place where the pub¬
lic highway from to crosses the same, in
the township of in county and in the
township of in county, and that the erec-
OF BRIDGES
93
tiou of such bridge will require more expense than it
is reasonable that the said townships should bear,
and praying the court to appoint proper persons to
view the premises and take such order on the subject
as is required and directed by the Act of Assembly
in such case made and provided: whereupon the
court, on due consideration had of the premises, do
order and appoint, on behalf of the said county of
, G. H., I. J. and K. L., who, after being res¬
pectively sworn or affirmed to perform the duties of
their appointment with impartiality and fidelity, to¬
gether with three persons similarly appointed by the
Court of Quarter Sessions of the county of , are
to view the place proposed for the said bridge ; and
if they or any five of them view the same, and any
four of the actual viewers agree, they shall make re¬
ports to the respective courts whether there is occa¬
sion for such bridge, and whether the erection of the
said bridge would require more expense than it would
be reasonable that the said townships should bear ;
one of which said reports to be made to the next
Court of Quarter Sessions to be held for the county
of , and the other of the said reports to the
next Court of Quarter Sessions to be held for the
county of . In which reports they shall state
that they have been sworn or affirmed according to
law.
" By the court.
[Seal] Y. Z., Clerk
The report of the viewers will run thus ; a copy
being presented to each of the courts :
" To the Honourable the Judges within named :
" We the subscribers appointed by the within or¬
der of court, and a similar order of the Court of
94
OF BRIDGES.
Quarter Sessions of the county of , to view the
place proposed for the bridge in the within order
mentioned, after being respectively sworn or affirmed
according to law, do report that in our opinion a
bridge over creek, at the place where the pub¬
lic highway from to crosses the same, is
necessary, and that the erection of such a bridge
would be attended with more expense than it is
reasonable that the said township [or townships]
should bear. Witness our hands and seals the
day of in the year of our Lord one thousand
eight hundred and ."
The bridge having been approved of by the Courts
of Quarter Sessions and the grand juries of both coun¬
ties, each of the Courts of Quarter Sessions issues a
certificate thereon to the commissioners of its res¬
pective county in the following form :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and
"A petition having been presented to this court for
the appointment of persons to view and report, ac¬
cording to law, on the erection of a bridge prayed
for in the said petition, the court appointed proper
persons for that purpose, who, with three other per¬
sons appointed for that purpose by the Court of
Quarter Sessions of the county of , made re¬
port that after examining the premises, they are of
opinion that a bridge is necessary over creek
at the place where the public highway from to
crosses the same in the township of in
county and in the township of in
county, and that the erection of such bridge would
OP BRIDGES.
95
be attended with more expense than it is reasonable
that the said townships should bear; and the said re¬
port having been submitted at sessions to our
Court of Quarter Sessions for the county of ,
and to the grand jury of the said county, and also at
sessions to the Court of Quarter Sessions for
the county of and the grand jury thereof, our
said Court of Quarter Sessions for the county of
and the grand jury thereof are, upon due considera¬
tion, respectively of opinion that the aforesaid bridge
is necessary, and that the erection of the same would
be attended with more expense than the townships
should bear, and do therefore concur in the said re¬
port, and the same is ordered to be entered of record
and a copy of the record furnished to the commis¬
sioners of by the Clerk of the Court of Quarter
Sessions thereof.
" By the court.
[Seal.] Y. Z., Clerk."
The bridge having been erected, the commission¬
ers of both counties present a petition to the Court of
Quarter Sessions of each county for the appointment
of viewers to inspect the bridge, as follows :
"To the Honourable the Judges of the Court of
Quarter Sessions of the county of :
"The petition of the commissioners of the counties
of and respectfully represents,
" That it having appeared to the court, grand jury
and the commissioners of the said counties respec¬
tively, that a bridge over creek, being the line
of the said counties, at the place where the public
highway from to crosses the same in the
township of in the county of and the
township of in the county of , was neces-
96
OF BRIDGES.
sary, and that it would be too expensive for the said
townships to erect; the same having been entered on
record, your petitioners procured an estimate to be
made, as nearly as might be, of the expense of the
same, amounting to the sum of , and did pro¬
ceed to have the same erected by entering into a con¬
tract with L. S. of [or, as the case may have
been] for the building of the same ; that the said
bridge is now completed agreeably to the said con¬
tract [or otherwise]. Wherefore your petitioners
pray the court to appoint three fit persons on behalf
of county aforesaid, to inspect the said bridge
and the workmanship thereof, agreeably to the Act
of Assembly, and make report to the next Court of
Quarter Sessions according to law.
" By the court.
[.Seal.] Y. Z., Clerk."
Upon which the court issues the following order
for a view :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and
"Upon the petition of the commissioners of the
counties of and , stating that it having
appeared to the court, grand jury and commissioners
of the said counties respectively, that a bridge over
creek, being the line of the said counties, at
the place where the public highway from to
crosses the same in the township of in
the county of and in the township of in
the county of , was necessary, and that it would
be too expensive for the said townships to erect ; the
saï$e having been entered of record, the said peti-
OF BRIDGES.
97
tioners procured an estimate, as nearly as might be,
of the expense of the same, amounting to the sum of
, and did proceed to have the said bridge
erected by entering into a contract with L. S. of
[or otherwise, as the case may have been] for the
building of the same ; that the said bridge is now
completed agreeably to the said contract [or other¬
wise], and therefore praying the court to appoint
three fit persons on behalf of the county of
aforesaid, to inspect the said bridge and the work¬
manship thereof, agreeably to the Act of Assembly,
and make report to the next Court of Quarter Ses¬
sions according to law : whereupon the court appoint
on behalf of the said county, G. H., I. J. and K. L.,
who, after being respectively sworn or affirmed ac¬
cording to law, are, together with three persons simi¬
larly appointed by the Court of Quarter Sessions of
county, to inspect the said bridge and the
workmanship thereof, and make duplicate reports
accordingly, one whereof is to be made to the next
Court of Quarter Sessions for the county of , and
the other to the next Court of Quarter Sessions for
the county of . In which reports they shall
state that they have been respectively sworn or af¬
firmed according to law.
" By the court.
[Seal.] Y. Z., Clerk."
The report, if in favour of the bridge, will run as
follows, a copy being presented to each of the Courts
of Quarter Sessions.
" To the Honourable the Judges within named :
" We the subscribers appointed by the within or¬
der of court, and a similar order from the Court of
Quarter Sessions of the county of , to inspect
9
98
OF BIUDGES.
a certain bridge in the within order mentioned, hav¬
ing been respectively sworn or affirmed according to
law, do report that we have viewed and carefully
examined the same, and are of opinion that it is
completed in a substantial and workmanlike man¬
ner, according to the contract entered into with the
commissioners of the counties of and for
that purpose [or otherwise, as the case may have
been]. Witness our hands and seals this day
of in the year of our Lord one thousand eight
hundred and
An unfavourable report will resemble the above
to the end of the words "are of opinion that it is,"
and will conclude like the unfavourable report in the
case of a county bridge, ante.
A favourable report will be thus confirmed :
"At a Court of Quarter Sessions of the Peace of
the county of held at on the day
of in the year of our Lord one thousand eight
hundred and :
" The persons appointed by an order of this court
of sessions last past, and a similar order of the
Court of Quarter Sessions of the county of , to
view the bridge lately erected over creek, being
the line of the said counties at the place where the
public highway from to crosses the same
in the township of in the county of and
the township of in the county of , by L.
S. of , under contract with the commissioners of
the said counties [or otherwise, as the case may have
been], after being respectively sworn or affirmed ac¬
cording to law, do report that they have viewed and
carefully examined the same, and are of opinion that
it is completed in a substantial and workmanlike
OF BRIDGES
99
manner, according to contract [or otherwise], which
report being read and considered (the Court of Quar¬
ter Sessions of the county of concurring), is
approved of and confirmed by this court.
" By the court.
[Seal.] ' Y. Z., Clerk
CHAPTER VI.
of the removal of proceedings in road cases
to the supreme court by certiorari.
The Supreme Court of Pennsylvania possesses a
supervision over the proceedings of the Courts of
Quarter Sessions relating to roads, which is exercised
by means of the writ of certiorari issued from the
Supreme Court directed to the Court of Quarter Ses¬
sions, and commanding the latter court to certify and
send before the Supreme Court their proceedings in
relation to the road in question.
A certiorari to the Court of Quarter Sessions to
remove road cases, lies without any special allow¬
ance or cause shown, in which the court may affirm
the proceedings or remit them, for further proceedings.
And the same principle applies to a proceeding in
that court for laying out streets and squares in a pro¬
posed city districts
A certiorari to remove a road must set out its
beginning and ending, otherwise it will be quashed.3
The party who removes a road from the sessions,
must procure the record to be returned, or a rule will
be made that the sessions shall proceed notwithstand¬
ing the certiorari.s
1 In the Matter of the district of the City of Pittsburgh, 2 W. &
S. 320.
* Road in East and West Nantmill townships, 4 Yeates 433.
* Oyster's and Emigh's Road, 1 Yeates 3.
REMOVAL OF PROCEEDINGS IN ROAD CASES, &C. 101
A special allocatur is not necessary in the case of
a certiorari to remove proceedings in the Quarter
Sessions, on the opening of a road in the county of
Philadelphia, notwithstanding the provisions of the
Act of June 13, 1836, relating to roads, highways
and bridges.4
On a certiorari to remove proceedings in the case
of a road, no point can be made in the Supreme
Court, which is not exclusively apparent in the pro¬
ceeding of the Quarter Sessions, removed.5
The Supreme Court will not on a certiorari to the
Court of Quarter Sessions to remove the proceedings
in a road case, enter into the merits or determine
facts or depositions,6 or hear parol evidence,7 but will
decide upon the face of the proceedings.8
But it has not been the practice of the Supreme
Court to confine itself strictly to the record of the
proceedings of the Quarter Sessions in matters relat¬
ing to roads.9 ;
The Supreme Court will hear evidence, in the case
of a certiorari to move proceedings in a road case, to
show that all the viewers attended the view, if the
record does not state the contrary, and no exception
was taken in the court below to the non-attendance
of the viewers.10
The Supreme Court will presume that the place
where the damage arising from opening a road hap¬
pened, was within the jurisdiction of the Court of
4 Road from Thomas' Creek, 3 Wharton 11.
4 Philadelphia & Trenton Railroad, 6 Wharton 25,
8 Case of Spring Garden Street, 4 Rawle 192.
7 Schuylkill Falls' Road, 2 Binney 250.
8 Road In Aston Township, 4 Yeates 372.
J 10 Case of the Baltimore Turnpike, 5 Binney 481.
9*
102 REMOVAL OF PROCEEDINGS IN ROAD CASES
Quarter Sessions, unless the contrary appears from
the record.11
The Court of Quarter Sessions having ordered that
notice should be given to the county commissioners
of the meeting of the viewers, and it appearing that
two of them attended the view, the Supreme Court
upon exception to the proceedings, held that it must
be presumed that the notice was given.12
The last thing done by the Court of Quarter Ses¬
sions having been the quashing of a report of re-
reviewers (which was in favour of the road) for
uncertainty, the Supreme Court held that the pro¬
ceedings were not at an end, and quashed a certiorari
to remove them.13
Where an exception to the proceedings in a road
case was, that the breadth of the road was not fixed
by the judgment of the sessions, and no order for
opening the road had been taken out below, the
Supreme Court remanded the proceedings, to give
the Court of Quarter Sessions an opportunity to com¬
plete their order by fixing the breadth of the road.14
Depositions taken and filed in the Court of Quarter
Sessions and sent up with the record on certiorari,
may be read in the Supreme Court in support of an
exception founded on matter of fact.15
Notwithstanding an Act of Assembly says that the
surveys and regulations of a street shall remain un¬
alterable, this does not deprive the Supreme Court of
11 Case of the Baltimore Turnpike, 5 Binney 481.
i9 Schuylkill Falls' Road, 2 Binney 250.
13 Case of the Road from Bough Street, 2 S. & R. 419.
14 Case of Shamokin Road, 5 Binney 36.
15 Case of Bryson's Road, 2 Penn. Rep. 207.
TO THE SUPREME COURT BY CERTIORARI. 103
its jurisdiction to review the proceedings on certio¬
rari.16
On certiorari to the proceedings in the opening of
a public road, so much of the order as related to the
breadth of the road, was reversed, and the residue
confirmed, and the proceedings were remitted with
directions to fix such a breadth as would do the least
injury to private property.17
lf The Commissioners of Philadelphia county v. The Commis¬
sioners of Spring Garden, 6 S. & R. 524.
17 Road in Whitemarsh, 5 Barr 101.
CHAPTER VIL
op supervisors of roads.
The electors of every township in the state (except
those in the Counties of Bradford, Erie, Franklin,
Luzerne, Susquehanna, Tioga, Venango, Warren and
Wayne) annually elect two supervisors of roads. In
the nine counties mentioned above, three supervisors
are chosen by the electors, one annually, who hold
their offices for three years. [See Act of April 15,
1834, "relating to counties and townships and county
and township officers," section 71, and the Supple¬
ment thereto, passed February 23, 1835, section 8].
The following sections of the Act of April 15, 1834,
thus define some of their duties, responsibilities and
rights.
" Section 90. The supervisors of each township
elected or appointed in pursuance of this Act, shall
perform all the duties imposed by law on supervisors
of the public roads or highways, and be subject to the
same responsibilities, and shall be by virtue of their
office, overseers of the poor of the township where
the poor are a township charge. And it shall be the
duty of the said supervisors to keep fair and clear
accounts in a book to be provided for the purpose,
of all moneys received by them or either of them,
and by them or either of them expended on behalf
of the township, and such accounts verified by oath
OF SUPERVISORS OF ROADS.
105
or affirmation, shall be exhibited to the township
auditors at the annual settlement of the accounts of
such supervisors.
" Section 91. If any supervisor shall after ten days9
notice, neglect or refuse to produce his accounts before
the auditors, or to pay over to his successors in office
the balance of public money in his hands, or to
deliver to such successors the books of account as
aforesaid, it shall be lawful for the auditors by war¬
rant under their hands and seals directed to the sheriff
or any constable of the county, setting forth parti¬
cularly the cause of such commitment, to commit
such delinquent to the county jail until he shall com¬
ply with the requisitions of the law, or be otherwise
legally discharged.
" Section 92. If any supervisor shall neglect or
refuse to perform any duty required of him by law,
he shall pay a sum not less than four dollars nor
exceeding fifty dollars, to be recovered in a summary
way by action of debt in the name of the common¬
wealth, before any justice of the peace of the county,
to be applied towards repairing the highways of the
same township : provided, that such supervisors may
appeal from the judgment of such justice to the next
Court of Quarter Sessions, who shall take such order
thereon as to them shall appear just and reasonable,
and the same shall be final and conclusive.
" Section 93. Every supervisor shall be allowed in
the settlement of his accounts, a sum not exceeding
one dollar for each day he shall be necessarily em¬
ployed in discharging the duties of his office/9
Section 9 of the Act of February 28, 1835, repeals
so much of the above recited 19th section as requires
the supervisors to discharge the duties of overseers
106
OF SUPERVISORS OF ROADS.
of the poor, except in the nine counties above men¬
tioned (Erie, &c.).
Section 96 of the Act of April 15, 1834, requires
each township treasurer to pay all moneys receiv ed
by him from taxes or otherwise, on orders drawn by
the supervisors of the township.
Section 95 of the same Act reqùires the township
treasurer to give bond with sureties, for the faithful
discharge of his duties, to the satisfaction of the
supervisors of the said township.
The Act of June 15, 1834, makes the following
provisions for raising funds to lay out, open and
repair the roads of the township.
" Section 25. It shall be lawful for the supervisors
of any township to lay a rate or assessment not ex¬
ceeding one cent in the dollar, upon real and personal
estate, offices, trades and occupations, for the purpose
of laying out, opening, making, amending or repairing
of roads and highways and for the making and re¬
pairing of bridges, and for such other purposes as
may be authorized by law."
" Section 28. The supervisors and overseers res¬
pectively laying such rate or assessment, shall take
to their assistance the township assessor for the time
being, whose duty it shall be to furnish a correct
copy of the last adjusted valuation in the township
as aforesaid, and to give his aid in making such
assessment.
"Section 29. The supervisors and overseers of the
poor of every township shall cause the rates or as¬
sessments by them respectively laid, to be entered in
books to be prepared for the purpose, which shall be
signed by them respectively and shall be deposited
with the town clerk, if there be one in the township,
OF SUPERVISORS OF ROADS.
107
but if not it shall remain with the supervisors or over¬
seers respectively ; and such town clerk, supervisors
or overseers, as the case may be, shall permit any
inhabitant or other person charged with township
rates and levies, to inspect the same at all seasonable
times, without any fee or reward, and shall give copies
of the same on demand, being paid at the rate of ten
cents for every twenty-four names.
" Section 30. If any supervisor, overseer or town
clerk, having charge of such books, shall refuse to
permit any inhabitant or other person charged with
township rates or levies, to inspect the same, or shall
refuse to give copies as aforesaid, he shall forfeit three
dollars to the party grieved, to be recovered as debts
of a like amount are recoverable.
"Section 31. The supervisors and overseers of every
township shall annually, at a meeting to be convened
for the purpose, appoint some suitable inhabitant of
the township to be collector of the township rates
and levies.
" Section 32. Every person appointed collector of
township rates and levies, shall give a bond with
surety, or a bond with mortgage of real estate, to the
satisfaction of the supervisors and overseers of the
poor of the respective townships.
" Section 33. The supervisors and overseers of the
poor of every township, shall cause fair duplicates to
be made of the rates in assessments by them respec¬
tively laid, which shall be signed by them respectively,
and shall issue their warrant with such duplicates to
the collector of such rates and levies, therein author¬
izing and requiring him to demand and receive from
every person in such duplicate named, the sum
wherewith such person stands charged.
108
OF SUPERVISORS OF ROADS
" Section 34. Provided, that before issuing the du¬
plicate and warrant for the collection of road taxes,
it shall be the duty of the supervisors of every town¬
ship to give notice to all persons rated for such taxes,
by advertisements or otherwise, to attend at such
times and places as such supervisors may direct, so
as to give such persons full opportunity to work out
their respective taxes."
" Section 39. If in any township there shall not be
a treasurer elected or appointed, it shall be the duty
of the supervisors and overseers of the poor of the
township, either by themselves or by a proper person
duly authorized by them respectively, to collect the
township rates and levies by them respectively laid :
provided, that in such case the supervisors and over¬
seers shall, respectively, be accountable for the faithful
collection thereof, by the person so authorized by
them respectively.
" Section 40. In every such case in which a trea¬
surer shall not be elected or appointed in any town¬
ship, it shall be lawful for the supervisors and over¬
seers respectively, to pay out as occasion may require,
according to their several duties, the moneys by them
respectively received or collected by virtue of their
offices."
The following sections of the same Act regulate
the proceedings for the recovery of township rates
and levies, by distress and sale, and the appeals that
may thereon be taken by any person aggrieved :
" Section 35. If any person shall neglect or refuse
to make payment of the sum charged to him for
township rates and levies, it shall be lawful for the
collector thereof, having first obtained a warrant
under the hand and seal of any justice of the peace
OF SUPERVISORS OF ROADS.
109
of the county, to levy the same by distress and sale
of the goods and chattels of such delinquent, giving
ten days' public notice of such sale by written or
printed advertisements ; [the residue of the section
provides for the imprisonment of the debtor, if suf¬
ficient distress cannot be found, and has been repeal¬
ed by the Act abolishing imprisonment for debt],
" Section 36. Provided, that it shall be lawful for
any person aggrieved by such rate or assessment, to
apply by petition .to the next Court of Quarter Ses¬
sions of the respective county, who shall have power
to take such order thereon as to them shall be thought
expedient, and the same shall conclude and bind all
parties.
" Section 37. And provided also, that if any per¬
son aggrieved by such rate or assessment, shall ap¬
ply to a judge of such court and give bond with
surety to the satisfaction of such judge, it shall be
lawful for siich judge to make an order in writing,
which shall stay all proceedings for the collection of
the sum with which such person stands charged until
such appeal be determined.
" Section 38. The bond to be given in such case
by the appellant shall be taken in the name of the
township, in an amount equal to the sum with which
such person stands charged, with condition for the
payment of such sum as by the determination of the
next Court of Quarter Sessions of the respective
county, shall appear to be payable by him."
The Act of June 13, 1836, makes the following
provisions as to the duties of the supervisors in mak¬
ing and repairing roads :
" Section 27. The supervisors aforesaid shall have
power, and they are hereby enjoined and required,
10
110
OF SUPERVISORS OF ROADS.
at the expense of the respective townships, to pur¬
chase wood, timber and all other materials necessary
for the purpose of making, maintaining and repairing
the public roads or highways, and to employ, oversee
and direct a sufficient number of labourers to execute
promptly and effectually the provisions of the law,
and the orders and decrees of the courts having ju¬
risdiction concerning such roads.
" Section 28. The supervisors aforesaid shall seve -
rally have full power and authority within their res¬
pective townships, to enter upon any land or enclosure
lying near to the said roads, and to dig, gather and car¬
ry upon said roads any stone, sand or gravel found
on the same, which they may think necessary for the
purpose of making, maintaining or repairing the said
roads, when the same cannot be conveniently ob¬
tained by contract at reasonable prices, doing no
unnecessary damage to the owners of the said lands,
and repairing any breaches of fences which they
shall make.
"Section 29. Whenever the supervisors and the
owners of any materials which may be wanted for
making, maintaining or repairing the roads aforesaid,
cannot agree upon the price to be paid therefor, the
value of such materials shall be estimated by any
two of such three persons as may be agreed upon
by such supervisors and owners.
" Section 30. If the supervisors and owners cannot
agree upon any persons to estimate the value thereof,
the owner may apply to a justice of the peace resid¬
ing as near the place where such materials were
taken as may be, and thereupon such justice shall ap¬
point three judicious persons, one on the nomination
of the supervisors, one other on the nomination of the
OF SUPERVISORS OF ROADS.
Ill
owner of such materials, and the third upon his own
suggestion, and the decision of the persons so ap¬
pointed, or any two of them, shall be entered upon
the docket of such justice and shall be final ; pro¬
vided, that if either party shall, after due notice, refuse
or neglect to nominate as aforesaid, it shall be the
duty of the justice to appoint one other person in his
stead.
" Section 31. It shall be the duty of the supervi¬
sors aforesaid, in making and repairing the public
roads, to make and maintain within their respective
townships, sufficient causeways of stone or timber,
on marshy or swampy grounds, and also to make
and maintain sufficient bridges over all small creeks
and rivulets and deep gullies, where the same shall
be necessary for the ease and safety of travellers.
" Section 32. The supervisors aforesaid shall also
have power and authority as aforesaid to enter upon
any such lands or enclosures, and cut, open, maintain
and repair all such drains or ditches through the
same, as they shall judge necessary to carry the
water from the said roads.
" Section 33. In cases where any public road has
been or shall be laid on the line of two townships, if
the supervisors of either of the said townships shall
neglect or refuse to join with the supervisors of the
other township in opening or repairing such road,
the supervisors of the other township are hereby di¬
rected and required to open, amend and repair the
said road, and the supervisors so neglecting or refus¬
ing, shall be liable to the same penalties as if they
had neglected or refused to open or repair any pub¬
lic road situate wholly within their respective town¬
ship."
112
OF SUPERVISORS OF ROADS.
The two following sections of the same Act relate
to the erection of index boards upon public roads :
"Section 61. The supervisors aforesaid shall cause
posts to be erected at the intersection of all public
roads within their respective townships (when trees
are not convenient) with boards firmly fixed thereon,
and index hands pointing to the direction of such
roads, on which boards shall be inscribed in large
and legible characters, the name of the town, village
or place to which such roads may lead, and the dis¬
tance thereto computed in miles.
" Section 62. If any supervisor shall, after ten
days' personal notice, neglect or refuse to put up, or
keep in complete repair, index boards as aforesaid,
such supervisor shall, for every such offence, forfeit
and pay a sum not exceeding ten dollars."
And the following section inflicts a penalty for the
destruction or injury of such index boards :
" Section 69. If any person shall wilfully destroy,
deface or injure any guide post or index board erected
at or near any public road, such person shall, for
every such offence, forfeit and pay a sum not less
than five dollars, nor more than fifteen dollars."
The following sections of the same Act relate to
attempts at extortion on the part of any person work¬
ing upon the public roads, and to any connivance of
the supervisors therein.
" Section 65. If any person working upon any road
or highway, or if any one in company with such per¬
son, shall ask money or reward, or by any means what¬
ever shall extort, or endeavour to extort any money,
drink or other thing, of or from any person travelling
upon or near such road or highway, the person so
OF SUPERVISORS OF ROADS. 113
offending shall, for every such offence, forfeit and pay
a sum not exceeding five dollars.
"Section 66. If any supervisor shall connive at
any person so asking, demanding or contriving to
extort money, drink or any other thing, from any
person travelling as aforesaid, such supervisor shall,
for every such offence, forfeit and pay a sum not ex¬
ceeding ten dollars."
The following decisions have been made respect¬
ing supervisors :
The supervisors of roads in a township, although
not in strictness a corporation, yet for certain pur¬
poses, are quasi a corporation; so that an order in
favour of the supervisors, would enable their succes¬
sors to sustain an action in their own names for the
use of the township.1
An action cannot be maintained by the supervisors
of roads, after they have gone out of office, against
the county treasurer, upon an order drawn on him
by the commissioners in favour of the supervisors or
their successors in office.2 It seems, however, if the
supervisors had worked upon the roads to the amount
of the order, or had paid others for their labour, they
might have acquired such an interest in the order as
would have enabled them to sustain a suit for their
own use.3
When the treasurer has received money due for
road taxes, he is bound to pay it to the supervisors,
and has no right to make payment in county orders.4
Without an order of the Quarter Sessions, super¬
visors of the highways have no authority to open a
temporary way for the public, in a case of sudden
i a s . YVillard v. Parke, 1 Rawle 448.
10*
114
OF SUPERVISORS OF ROADS.
necessity, through private property, or to correct er¬
rors in the opening of an old one.5
An indictment against public officers for not re¬
pairing roads or streets, must conclude, " to the com¬
mon nuisance of the citizen^ of the Commonwealth
of Pennsylvania."6
On the 7th of May, 1844, an Act of Assembly was
passed "relative to roads and bridges in the Counties
of Crawford, Clearfield and Greene/9
The first section provides for the election in 1845,
of three persons in each to wnship in these counties,
to be styled supervisors of roads and bridges.
The second section provides for their classification,
one to serve three years, one two years, and one one
year; annually thereafter, one supervisor to be elect¬
ed to serve three years.
The third and fourth sections relate to the assess¬
ment of road taxes by the supervisors.
The fifth section makes each school district a road
district, in which one person is annually to be elect¬
ed a pathmaster, and defines his duties.
The sixth section regulates the collection of road
taxes.
The seventh section prescribes the duties of super¬
visors, in relation to roads and bridges, in their res¬
pective townships.
The eighth section orders returns to be made of
unseated lands on which the road tax is unpaid.
The ninth section relates to the collection of the
road taxes.
■#
* Holden v. Cole and others, 1 Barr 303.
6 Graffius v. The Commonwealth, 3 Perm. Rep. 502.
OF SUPERVISORS OF ROADS.
115
The tenth section regulates the settlement of the
supervisors' accounts.
The eleventh section provides for their pay.
The twelfth section directs the road-masters to
have the road tax worked out in their respective dis¬
tricts.
The thirteenth section relates to exoneration from
road tax.
The fourteenth section provides a remedy for any
persons aggrieved by the supervisors in laying out
new roads.
The fifteenth section repeals existing laws, so far
as they are supplied or altered by the Act.
Section 7 of the Act passed February 24, 1845,
" relative to certain roads in certain counties therein
named," directs the supervisors in every township in
the County of Crawford, or a majority of them, at
their first meeting, as provided for in the 2d section
of the above mentioned Act of May 7, 1844, " to di¬
vide their respective townships into as many road
districts as they deem necessary, and at the same
time and place appoint a competent person for each
road district, to serve as road-master, who shall per¬
form all the duties enjoined on road-masters by the
aforesaid Act."
CHAPTER VIII.
of streets and roads in cities and boroughs.
An Act of Assembly appointed certain commission¬
ers to open certain streets, &c., in the borough of Nor-
ristown, and directed that they should make report
to the Court of Quarter Sessions with a plan of the
streets, and on its approval by the court that the
plan should be recorded, and a certified copy of it be
evidence. The commissioners proceeded to execute
the power, and made report to the Quarter Sessions,
which was approved, but the report was not recorded
and was lost. An action of trespass was brought by
an owner of land against the street commissioner for
opening a street through his close, and after the
commencement of the suit an Act of Assembly was
passed which directed that a certain plan in the
clerk's office should be recorded and admitted in
evidence in all cases in which the said report would
be. This Act of Assembly was decided to be valid
and admissible in evidence on the trial of the action.1
In trespass for breaking the plaintiff's close, the
defendant justified under an order of the Court of
Quarter Sessions, which directed the opening of a
certain street through the plaintiff's land, the defend¬
ant being a commissioner of streets. It was held,
1 Adle v. Sherwood, 3 Wharton 481.
STREETS AND ROADS IN CITIES AND RGROUGIIS. 117
that the order was a sufficient justification to the
officer, and that the validity of the order could not
be inquired into in that action.2 J
The charter of a borough authorized the town
council to enact such by-laws as should be necessary
for the good order, &c., of the borough, " particularly
providing for the streets, alleys and highways there¬
in,'' and also authorized them to appoint two persons
to act as "street and road commissioners." It was
held, that the said commissioners were not liable to
an indictment for not repairing the streets, &c., with¬
out showing that the town council had authorized
them to make such repairs.3 It seems, that even if
the town council had enacted a by-law for such
purpose, the commissioners could not be indicted
for such neglect.4
When public officers of a city corporation have
located a highway and fixed the boundaries up to
which the owners of property may build, and they
have so built and enjoyed their property on both
sides of it for more than twenty-one years, and the
public highway has been used in that place for the
same length of time, it must be considered as the
true location, which cannot be disturbed to the pre¬
judice of vested rights, by the subsequent acts or
authority of the city corporation.5
An indictment against public officers for not repair¬
ing roads or streets, must conclude " to the common
nuisance of the citizens of the Commonwealth of
Pennsylvania."6
2 Adle v. Sherwood, 3 Wharton 481.
8 4 Graffius v. The Commonwealth, 3 Penn. Hep. 502.
6 Commonwealth v. Miltenberger, 7 Watts 450.
6 Graffius v. The Commonwealth, 3 Penn. Rep. 502.
118 STREETS AND ROADS IN CITIES AND BOROUGHS.
The Court of Quarter Sessions of the County of
Northampton, has no jurisdiction over the laying out
of roads within the limits of the borough of Easton.7
Under the Act of March 28, 1814, incorporating
the borough of Mercer, the Quarter Sessions of the
county, and not the borough officers, have power to
lay out streets through the out-lots.8
Under the general road law, the Quarter Sessions
has not jurisdiction to lay out and open streets and
alleys on the site of streets and alleys laid out by the
original proprietor of an incorporated borough in the
plan of the town which have not been opened.^
Under the Act of March 31, 1836, in relation to
Duquesne Way in the City of Pittsburgh, the report
of the viewers appointed to assess damages, must be
made to the next term. When, therefore, the report
is not so made, the power under the order of the
Court of Quarter Sessions drawn pursuant to the
express directions of the Act, is expended, and must
be renewed by a new order or the original order
continued, upon application to the court, and if this
be not pursued by the petitioner, he loses his remedy
for damages.10
7 Case of the Road in the Borough of Easton, 3 Rawle 195.
8 Case of the Road from Erie Street, 14 S. & R. 441.
9 In re Milford, 4 Barr 303, 10 Ex parte Teese, 4 Barr 69.
CHAPTER IX.
of turnpike and other roads made by incor¬
porated companies.
The number of companies incorporated by the
Legislature for the construction of turnpike* roads,
is very great, amounting to several hundreds, and
since the introduction of railroads, many companies
have been incorporated for making roads of this
kind. It would be quite beyond the limits of this
work to enumerate these roads, much more, to give
any of the provisions of. their respective charters.
The state was formerly in the habit of contributing
to their construction by becoming a stockholder, and
occasionally appropriations were made for their assist¬
ance. The embarrassed condition of our finances for
some years past, has put a stop to both these usages.
* This word is now used in a way that denotes a complete igno¬
rance of its original meaning. Roads were called turnpike roads
which had gates erected on them at the points where toll was pay¬
able, which gates were revolving or turning and provided with a pike
to stop those who would drive through without paying. Such gates
probably never were in use in Pennsylvania; they certainly are not
known at present. As roads made with broken stone were those
usually made by the companies incorporated to make turnpike roads,
the word turnpike or pike became applied to the bed of the road; and
where stone is not used, roads made by companies are called clay-
turnpikes or clay-pikes, in many parts of the state.
The Philadelphia & Lancaster Turnpike Road was the first made
in Pennsylvania, and, it is believed, in the United States.
1 20 OF TURNPIKE AND OTHER ROADS
Under the Act of April 9, 1792, incorporating the
Philadelphia & Lancaster Turnpike Company, it
was decided by the Supreme Court that the company
was not bound to make compensation for the soil,
gravel or stone in the track of the road, nor to put up
new fences where the road ran across a field : other¬
wise., where the fences was lengthwise along the road,
or where improvements were destroyed.1
The report of this case contains a clear and full
account of the road system of Pennsylvania, from the
settlement of the province by Penn. The following
extracts relate to the allowance of six per cent, for
roads, made to every person purchasing land from
the proprietaries, and, since the Revolution, from the
state. This allowance was the reason for the decision
in the above recited case, that payment was not to
be made for land used by the company in the con¬
struction of their road.
"On the 11th of July, 1681, William Penn, the
first proprietor of Pennsylvania, made and executed
a certain instrument in writing entitled 6 certain con¬
ditions or concessions agreed upon by William Penn,
proprietor and governor of the province of Pennsyl¬
vania, and those who are the adventurers and pur¬
chasers in the same province/ No such great roads
or highways, as in the said written instrument are
mentioned, were first laid out and declared to be for
highways, before the dividend of acres was laid out
for the purchasers ; but in lieu thereof, and with the
assent of the said William Penn and the adventurers
and purchasers, an allowance for such roads and
highways, of six acres for every hundred acres over
1 M'Clenachan v, Curwin, 3 Yeates 362.
MADE BY INCORPORATED COMPANIES. 121
and beyond the said quantity of every hundred
acres, was from the first settlement of Pennsylvania
made by the said William Penn, in all his grants of
lands in Pennsylvania, for which said allowance no
price or sum of money was ever charged or paid ;
and a like allowance for the like purpose hath ever
since been made by the successors of the said Wil¬
liam Penn, and by the State of Pennsylvania."
Chief Justice Shippen in his opinion, after giving
a history of the allowance of six per cent, for roads,
thus proceeds ;
"We cannot, therefore, consider the Legislature's
applying a certain portion of every man's land for the
purposes of laying out public roads and highways,
without compensation, as any infringement of the
Constitution, such compensation having been origi¬
nally made in each purchaser's particular grant."
The proviso in the 1st section of the Turnpike Act
of March 17, 1806, that "toll shall not be demanded
of any person when passing from one part of his
farm to another along the road," extends to separate
lots occupied as one farm.2
The Act of Assembly passed March 5, 1804, incor¬
porating the Lancaster & Elizabethtown Turnpike
Company, provided that on the petition of any per¬
son complaining of injury from the road, the Court
of Quarter Sessions should appoint six persons to
judge of the damage, and that the sum awarded by
them, if approved by the court, should be paid by
the company. The court had power, under these
words, in case they disapproved of the report of the
fl Commonwealth v. Carmalt, 4 Yeates 416.
11
122
OF TURNPIKE AND OTHER ROADS
six persons, to make a second appointment of per¬
sons to assess the damages.3
The 45th section of the Act of March 26, 1821,
"for the improvement of the state," provided for a
subscription on the part of the commonwealth, to the
Anderson's Ferry, Waterford & New Haven Turn¬
pike Company, and the 77th section of the Act pro¬
vided that it should "be the duty of the president and
managers of the several turnpike, road and bridge
companies, to which roads or bridges the governor is
by this Act authorized to subscribe for stock, before
they or any of them shall draw out of the state trea¬
sury any part of the amount of the state's subscrip¬
tion, in this Act authorized to be subscribed, to settle
the accounts of all such persons who may have here¬
tofore performed work, labour or service, and to
whom they are indebted for work done on contracts
on any part of the said turnpike roads or bridges, and
who hold the accounts in their own right, without
having heretofore made a transfer thereof to any
other person, and the amounts due and payable to
them respectively, under their corporate seal, a dupli¬
cate of each certificate shall be transmitted by the
treasurer of each company to the state treasurer, and
the certificate given to each individual creditor for
labour performed as aforesaid, shall be received by
thç state treasurer, and shall be paid by him to the
holder thereof or to his order, and the amount so
paid shall be deducted by the state treasurer from the
appropriations made to such turnpike, road or bridge
company."
s Redsecker v. The Falmouth Turnpike Company, Supreme Court,
May, 1814, MS.
MADE BY INCORPORATED COMPANIES. 123
It has been decided that a mandamus will not be
granted to compel a turnpike company to issue a
certificate, as required by the above Act, to a person
claiming a judgment against them, if they return that
such judgment was not obtained for work, labour or
service performed within the intent of the Act.4 But
a mandamus will be granted when they return that
a judgment against them is appealed from; such re¬
turn is not sufficient.5
The 77th section of the said Act embraces only
those cases in which, by the other sections, there is
no special appropriation of the money subscribed by
the state to future expenditures. In such appropria¬
tions to future expenditures, the state treasurer is
bound to pay the money subscribed to the company,
and it is no objection to such payment, that a con¬
tractor objects to it who claims for work done before
the passage of the Act.6
Under the 26th and 77th sections of the said Act,
when the remaining six miles of the road were fin¬
ished, the surplus of the fourteen thousand dollars
subscribed by the state, that remained after paying
the advances of the directors, is to be paid to persons
who did the work before the passage of the Act, in
preference to those who worked afterwards in finish¬
ing the six miles of the road.7
On the 4th of April, 1807, the following Act was
passed, " imposing certain penalties upon persons de-
4 * Commonwealth v. The Anderson's Ferry, &c., Turnpike Com-
pany, 7 S. & R. 6.
8 Commonwealth v. The Hanover & Carlisle Turnpike Company,
and the Commonwealth v. The State Treasurer, 9 S. &> R. 59.
7 Commonwealth v. The Berks & Dauphin Turnpike Road Com¬
pany, 13 S. & R. 49.
124
OF TURNPIKE AND OTHER ROADS
frauding incorporated turnpike companies of their
legal tolls, and also upon gate-keepers, for demand¬
ing or receiving in advance greater tolls than in pro¬
portion to the distance travelled."
"Section 1. From and after the first day of June
next, no gate-keeper or toll-gatherer of any incorpo¬
rated turnpike company within this commonwealth,
shall, at any gate fixed or to be fixed on any such
road, knowingly and wilfully take and receive from
any person or persons passing through the same, a
greater toll in advance than shall be in proportion to
the distance such person or persons shall travel or
pass on such road, between such gate and the gate
next thereto, under the penalty of ten dollars for every
such offence, to be recovered to and for the use of the
party aggrieved; and if any person or persons shall
defraud any such company, by travelling or using
such road for a greater distance than in proportion to
the toll he, she or they shall have so paid at any such
gate, such person or persons so offending, shall forfeit
and pay for the use of the proper company, for every
such offence, the sum of ten dollars, to be recovered
in like manner as other penalties in the proper Act
of incorporation, upon due proof thereof, are recover¬
able."
The Acts of March 27, 182*4, and April 10, 1826,
relate to "turnpike companies in which the state
holds stock," and are not here transcribed, as it is
believed that the state has parted with all its stock in
such companies.
The Act of March 19, 1828, "relative to the elec¬
tion of the officers of turnpike roads and bridge com¬
panies," is as follows :
" Whereas, it has been represented to the Legisla-
MADE BY INCORPORATED COMPANIES. 125
ture that impositions have been committed in the
election of officers of various turnpike roads and
bridge companies of this commonwealth, in conse¬
quence of the default of the persons conducting such
elections, to produce the stock books, so as to ascer¬
tain who are by law rightfully entitled to vote :
" For remedy whereof—
"Section 1. From and after the passage of this
Act, it shall be the duty of the treasurers or secre¬
taries as the case may be, of the several turnpike
and bridge companies incorporated within this com¬
monwealth, to produce at the several places of hold¬
ing the elections for officers of said companies, the
stock books belonging to their companies respec¬
tively, and to open the said books during the con¬
tinuance of such election to the inspection of any
stockholder or stockholders demanding the same,
and in case the said treasurers or secretaries, as the
case may be, shall neglect to produce the said stock
books belonging to their companies respectively, at
the place of holding their election for officers, or shall
refuse to open the same to the inspection of any of
the stockholders at the time of holding the elections,
such treasurer or secretary as the case may be, shall
for every such neglect or refusal, forfeit and pay the
sum of one hundred dollars, to be recovered at the
suit of any stockholder or stockholders, in like man¬
ner as sums of the same amount are by law recover¬
able within this commonwealth, and every election
held after the first day of August next, where the
stock books of the company holding such election
shall not be produced and opened to the inspection
of the stockholders in manner aforesaid, shall be
deemed null and void."
11*
126 OF TURNPIKE AND OTHER ROADS
The following Act " to prevent obstructions being
placed on turnpike roads/' was passed on the 21st of
March, 1833.
"Section 1. From and after the first day of Sep¬
tember next, any turnpike company who shall per¬
mit large and unbroken stones, or heaps of stones
which may endanger the passage of any wagon,
stage or other carriage, to remain on the paved or
artificial parts of their respective roads for a period
exceeding twenty-four hours after information's being
given that such obstructions do exist, shall be liable
to pay a fine not exceeding forty dollars nor less
than ten dollars, for every such offence, to be recov¬
ered on conviction thereof before any justice of the
peace of the proper county, as debts of like amount
are by law recoverable, with costs of suit, the one
half to the use of the prosecutor, and the other half
to and for the repair of the roads within the town¬
ship where such obstructions are found.
" Section 2. Information given to, and the service
of any summons upon one of the gate-keepers or
toll-gatherers of any turnpike company next to
where such obstructions may be found, shall be as
good and valid in law as if given to or served upon
the president or other principal officer, or the trea¬
surer, secretary or chief clerk of any turnpike com¬
pany as aforesaid.
" Section 3. No carter or teamster shall leave his
wagon or team stand, during the night, within less
than ten feet* of the centre of the turnpike road,
under a penalty of five dollars for each and every
such offence, to be recovered on conviction thereof
* Did not the Legislature mean within ten feet ?
MADE BY INCORPORATED COMPANIES. 127
before any justice of the peace of the proper county,
with costs of suit, the one half for the use of the
prosecutor, and the other half to and for the repair
of the roads of the township where such offence may
be committed."
The following decisions have been made respect¬
ing railroads made by incorporated companies.
There is no certain rule by which the injury done
to a man's property by the construction of a railroad
through it, is to be measured; it must be referred to a
jury as a matter of fact under all the circumstances ;
and the jury cannot legitimately inquire whether the
plaintiff owned property at another place, separate
from and unconnected with the property alleged to
be injured, which was enhanced in value by the
road.8
An Act of Assembly having authorized a railroad
company to "locate and construct" a railroad, and
declared that the "location should be approved by
the judges of the Court of Quarter Sessions upon the
view of six persons to be appointed by said court as
directed," it was held that it was not a valid excep¬
tion to the proceedings that the location was made
by the jury, nor that there were not two full terms
between the appointment of the jury and the confir¬
mation of the report.9
The contractors for making the Reading Railroad
were authorized, under the 12th section of the Act
of incorporation, to enter and occupy with temporary
dwellings, stables, blacksmiths' shops, &c., the lands
adjoining the line of the road, provided they took no
8 Philadelphia & Reading Railroad Company v. Gibson, 8 Watts
243.
a Philadelphia & Trenton Railroad, 6 Wharton 25.
128 OF TURNPIKE AND OTHER ROADS
more than was necessary for such purpose, while
engaged in the performance of their contract.10
Section 8 of the " Act authorizing John JPrall to
sell and convey certain real estate in Bucks county,"
passed March 21, 1842, provides, "that hereafter,
when any action is commenced by any person or
persons or bodies corporate, against an incorporated
railroad or canal company, in any county in which
the corporate property of such company is wholly or
in part situated, it shall be lawful, if the president,
treasurer, secretary or chief clerk of such corporation
does not reside, or cannot be found in such county,
for the sheriff or other officer to whom such process
is directed, to serve the sama on any manager or
director of such company being in such county, and
the service so made shall be deemed sufficient, and
in case no director or manager can be found in the
county, it shall be lawful for such officer to go into
an adjoining county to serve the process as herein¬
before stated."
Section 11 of the "Act to incorporate the Liberty
Fire Company of Holmesburg, in the County of
Philadelphiaf passed July 26, 1842, enacts "that
whenever any railroad or canal company has bor¬
rowed money and given to the lender thereof, a bond
or other evidence of indebtedness in a larger sum
than the amount actually received, such transactions
shall not be deemed usurious or in violation of any
law of this commonwealth prohibiting the taking of
more than six per cent, interest."
"An Act relative to the obstructing of the crossings
of public roads by locomotives and cars," passed on
Lauderbonn ». Duffy, 2 Barr 398.
MADE BY INCORPORATED COMPANIES. 129
the 20th of March, 1845, enacts "that it shall not be
lawful for any railroad company to block up the pas¬
sage of any crossings of public streets or roads, or
obstruct the said crossings with their locomotives or
cars ; and if any engineer or other agent of any such
railroad company shall obstruct or block up such
crossings, he or they shall be subject to a penalty of
twenty-five dollars, to be recovered with costs in the
name of the Commonwealth of Pennsylvania, before
a justice of the peace ; one half of such penalty shall
be paid to the informer or informers, and the remain¬
ing half shall be paid into the treasury of the com¬
monwealth : provided, that in the event of the said
engineer or agent's being unable to pay the said pen¬
alty, then and in that case, the said railroad company
employing the said engineer or agent, shall pay the
penalty aforesaid."
CHAPTER X.
of lateral railroads to the public works.
On the 5th of May, 1832, the following Act " regu¬
lating lateral railroads," was passed :
"Section 1. Be it enacted by the Senate and
House of Representatives of the Commonwealth of
Pennsylvania in General Assembly met, and it is
hereby enacted by the authority of the same, that if
any owner or owners of land, mills, quarries, coal
mines, lime-kilns or other real estate in the vicinity
of any railroad, canal or slack water navigation, made
or to be made by any company, or by the State of
Pennsylvania, and not more than three miles distant
therefrom, shall desire to make a railroad thereto
over any intervening lands, he or they, their engi¬
neers, agents and artists, may enter upon any lands,
and survey and make such route as he or they shall
think proper to adopt, doing no damage to the pro¬
perty explored, and thereupon may present a petition
to the Court of Common Pleas of the county in which
such intervening land is situated, setting forth his or
their desire to be allowed to construct and finish a
railroad in and upon the said route, and the begin¬
ning, courses and distances thereof, and place of in¬
tersection of the main railroad, canal or slackwater
navigation, which shall be filed and entered of record
in the said court, whereupon the said court shall ap-
LATERAL RAILROADS TO THE PUBLIC WORKS. 131
point six disinterested and judicious men, resident in
the said county, who shall view the said marked and
proposed route for a railroad, and examine the same,
and if they or any four of them shall deem the same
necessary and useful for public or private purposes,
they shall report in writing at the subsequent term
of said court, what damages will be sustained by the
owner or owners of the said intervening land, by the
opening, constructing, completing and using the said
railroad, and the report of the said viewers and ap¬
praisers shall be filed of record in the said court, and
if not appealed from, be liable to be confirmed or re¬
jected by the said court, as to right and justice shall
appertain ; and if either of the parties shall be dis¬
satisfied with said report, he or they may appeal
therefrom to the said Court of Common Pleas, within
twenty days after such report has been filed in the
prothonotary's office and not after; and after such
appeal, either party may put the cause at issue in
the form approved of by the court, and the said issue
shall be placed first on the trial list of the next regu¬
lar term of the said court, and be there tried and de¬
termined by the court and jury, and the verdict so
rendered and judgment thereon shall be final and
conclusive, without further appeal or writ of error,
and it shall be the duty of the said viewers and jury
to take into consideration the advantages which may
be derived by the owner or owners of land passed
by the said road, when making up their report, or
forming their verdict thereon.
"Section 2. And be it further enacted by the
authority aforesaid, that the said court shall tax
and allow such fees to the viewers and appraisers,
and officers of the court, as are chargeable for such
132 LATERAL RAILROADS TO THE PUBLIC WORKS»
services in the existing fee bills, which shall be paid
by the petitioner for the said railroad, and, if neces¬
sary, their payment shall be compelled by attach¬
ment, and it shall be at the option of the petitioner
or petitioners for the said railroad, either after the
report filed, or after the verdict of the jury, after pay¬
ing the legal costs to be taxed as aforesaid, to aban¬
don the further prosecution of the said railroad, and
as evidence thereof [he or they] shall file his or their
declaration of that intent in writing, in the said court,
which shall terminate all further proceedings on the
said petition.
"Section 3. Jlnd be it further enacted by the
authority aforesaid, that the said railroad shall not
exceed in breadth twenty feet, nor pass through any
burying ground or place of public worship, nor any
dwelling house or out-buildings, without the consent
of the owner thereof ; and it shall be of single or
double track, and formed of wood, stone and iron,
each or all of them, as the proprietors of the said
road shall adopt ; the streams of water over which it
may pass, shall be bridged with stone or wood, and
the right of property in the said railroad shall be
vested in him or them, his or their heirs and assigns,
who shall have subscribed the said petition for the
said railroad, and whose funds shall have been con¬
tributed and paid for the construction thereof, in such
just proportions as each contribution and payment
shall bear to the whole amount expended in the for¬
mation and completion of the said railroad, and the
satisfaction of damages for lands and materials ap¬
propriated thereto ; and the said railroad shall be
jointly and severally enjoyed and used by the pro¬
prietors thereof : the proprietors of the said railroad,
LATERAL RAILROADS TO THE PUBLIC WORKS. 133
their workmen and agents shall not break ground or
commence the construction of the said railroad, until
the damages reported by the viewers, or awarded
by the verdict of the jury, shall be tendered or paid
to the party or parties entitled thereto, except in cases
of their being unknown to the petitioners.
" Section 4. And be it further enacted by the
authority aforesaid, that fifteen days' notice shall be
given of the intention to file a petition for a railroad
in the Court of Common Pleas, and of the time of
viewing the premises by the viewers, to the owner
or owners of the lands over which the route of the
contemplated railroad shall pass, if the said owners
shall be resident in this commonwealth ; and if in any
case the owner or owners of said lands shall be un¬
known, an affidavit thereof being filed by any peti¬
tioner for said road, notice shall be given in one pub¬
lic newspaper, printed in the county where the land
lies, for three successive weeks ; and if there is no
newspaper printed in the county where the land lies,
then publication in any newspaper printed in the
adjoining county shall be sufficient.
" Section 5. And be it further enacted by the
authority aforesaid, that he or they who shall con¬
struct the said railroad, after having paid the damages
ascertained as aforesaid, shall be entitled to use and
apply all the said gravel, timber and other materials
on the route adopted, and within the breadth of
twenty feet, to and for the formation and completion
of the said road and bridges, and it shall be lawful
for the petitioners for and the proprietors of the said
railroad, his or their heirs and assigns and their agents
and persons employed by or under him or them, to
enter upon any land near or adjoining said railroad
12
134 LATERAL RAILROADS TO THE PUBLIC WORKS,
to search for stone, gravel, sand, wood or other
materials to be used in the construction of the said
road; but no stone, gravel, sand, wood or other
materials shall be taken from any land for the pur¬
poses aforesaid, until the rate of compensation therefor
shall be ascertained and settled with the owners of
the said lands ; but if the parties cannot agree there¬
on, each party shall choose a man, who, if they
cannot agree, shall choose an umpire,, all of whom
shall, under oath or affirmation, fairly and impar¬
tially estimate the same, and such award shall be
final and conclusive ; but if the owner or owners of
such land, out of which the said materials shall be
designed to be taken, shall be a feme covert, non
compos mentis, out of the state or unknown, the
Court of Common Pleas of the proper county shall,
in writing, appoint three impartial men, who, on oath
or affirmation shall fairly and impartially estimate
the same materials, the amount of which said valua¬
tion shall be paid or tendered to the owner or owners
thereof, if within the state and known, before they
are removed or applied to the construction of the said
railroad.
" Section 6. And be it further enacted by the
authority aforesaid, that the proprietor or pro¬
prietors of the said railroad, on the completion of
the same, shall file in the Court of Common Pleas a
full statement and account of all the expenses incur¬
red in the formation and completion of the said road,
under the oath or affirmation of some one or more
who shall have had knowledge of the same, within
three months after the same shall be completed and
put in use, under the penalty of one hundred dollars,
to the end that the said road and the privileges
LATERAL RAILROADS TO THE PUBLIC WORKS. 135
appurtenant thereto may be resumed by the com¬
monwealth, whenever the Legislature shall enact the
payment to the proprietors of such railroad, their
heirs and assigns, of the principal money expended
in the construction of the same.
"Section 7. And be it further enacted by the
authority aforesaid, that the said railroad shall and
may be used by any person or persons transporting
any thing thereon, in such cars, wagons and vehicles
as are adapted to and used thereon by the proprietor
or proprietors of the said railroad or their agents and
no other, he or they using the same, paying four
cents per mile on each and every ton weight of the
article transported thereon, and on all single articles
weighing less than a ton, it shall be lawful to charge
and receive an advance not exceeding twenty per
cent, on the rate as above established.
" Section 8. And be it further enacted by the
authority aforesaid, that the said railroad shall be
so constructed as not to obstruct or impede the free
use and passage of any public roads which may cross
or enter the same, being now laid out or hereafter to
be laid out, and in all places where the said railroad
may cross or in any manner interfere with any pub¬
lic road, the proprietors of the said railroad shall make
or cause to be made a good and sufficient bridge or
bridges, causeway or causeways, to enable all persons
passing or travelling such public road to cross and
pass over said railroad, and if the proprietor or pro¬
prietors of said railroad shall refuse or neglect to make
such bridge or bridges, causeway or causeways, or
when made to keep the same in good repair, they
shall be liable to pay a penalty of ten dollars for
every day the same shall be so neglected or refused
136 LATERAL RAILROADS TO TIIE PUBLIC WORKS.
to be made or repaired, to be recovered by the super¬
visor of the township, with costs for the use of the
township, as debts of like amount are by law recover¬
able, and the service of process on any one of the
proprietors of the said railroad shall be as good and
effectual as if made on all of them.
" Section 9. •And be it further enacted by the
authority aforesaid, that for the accommodation of
all persons owning or possessing land through which
the said railroad may pass, and to prevent incon¬
venience to such persons in crossing or passing over
the same, it shall be the duty of the proprietors of the
said railroad, if required, to make or cause to be made
a good and sufficient bridge or bridges, causeway or
causeways, whenever the same may be necessary to
enable the occupant or occupants of said land to cross
or pass over the same with wagons, carts and imple¬
ments of husbandry, as occasion may require : pro¬
vided, that the proprietors of the said railroad shall in
no case be required to make or cause to be made,
more than two such causeways through each plan¬
tation or lot of land, for the accommodation of any
one person owning or possessing land through which
the said railroad shall pass; and where any public
road shall cross the said railroad, the person owning
or possessing land through which the said railroad
shall pass,shall not be entitled to make such requisition
on the proprietors of the said railroad; and the said
bridge or bridges, causeway or causeways, when so
made, shall be maintained and kept in repair by the
proprietor or proprietors of the said railroad, and if
they shall refuse or neglect to make such bridge or
bridges, causeway or causeways, or when made to
keep the same in good repair, the said proprietors shall
LATERAL RAILROADS TO THE PUBLIC WORKS. 137
be liable to pay any person aggrieved thereby, ail
damages sustained by such person or persons in con¬
sequence of such neglect or refusal, to be sued for and
recovered before any magistrate or court having
cognizance thereof, and the service of process on any
one of the proprietors of the said railroad shall be as
good and effectual as if made on all of them.
" Section 10. And be it further enacted by the
authority aforesaid, that no suit or action shall be
brought or prosecuted by any person or persons for
any penalties incurred under this Act, unless such suit
or action shall be commenced within twelve months
after the offence committed or the cause of action
shall have accrued ; and the defendant or defendants
in such suit or action may plead the general issue,
and give this Act and the special matter in evidence,
and that the same was done in pursuance and by
authority of this Act.
" Section 11. And be it further enacted by the
authority aforesaid, that if any person or persons
shall wilfully and knowingly break, injure or des¬
troy the said railroad or any part thereof, or any
work or device or any part-thereof to be erected by
the proprietors of the said railroad, or shall wilfully
place any obstruction in and upon the said railroad,
he or they so offending shall forfeit and pay to the
proprietor or proprietors of the said railroad, three
times the actual damages so sustained, to be sued for
and recovered with costs of suit before any justice of
the peace or court having cognizance thereof, by
action of debt, in the name and for the use of the
proprietor or proprietors of the said railroad.
" Section 12. And be it further enacted by the
authority aforesaid, that the provisions of this Act
12*
138 LATERAL RAILROADS TO THE PUBLIC WORKS.
shall extend to the Counties of Lycoming, Luzerne,
Schuylkill and Northumberland only: provided, that
if any lateral railroad so constructed as aforesaid shall
be disused or suffered to remain out of repair for the
space of two years, all right of way or other privilege
therein shall cease and revert to the original owners
of the land, their heirs and assigns.
" Section 13. And be it further enacted by the
authority aforesaid, that the Legislature reserve the
right to repeal or alter this Act either in whole or in
part, as may respect any railroad constructed under
the provisions of this Act.
It has been decided that this Act is not uncon¬
stitutional.1
In proceedings to open a railroad from mines to
the public works, a petition signed by the lessee and
agent of the owners of the mines on their behalf, is
sufficient.2
A. notice of the filing of the petition, signed by an
attorney, is sufficient.3
A notice of the order of the court stating it in sub¬
stance, is sufficient.4
The Act does not contemplate that the petitioner
for a road to the public works should own land at
the point of construction ; he may use his road there
conjointly with the interests of the owners of the
land.5
The necessity for such a railroad, within the Act of
Assembly, is not an absolute but a reasonable neces¬
sity, and may exist though a road might at great
expense be constructed over the petitioner's land.
1 Harvey v. Thomas, 10 Watts 63 ; Harvey v. Lloyd, 3 Barr 331.
* 8 4 Harvey v. Lloyd, 3 Barr 331.
5 Harvey v. Thomas, 10 Watts 63.
LATERAL RAILROADS TO THE PUBLIC WORKS. 139
Whether necessary and useful, is a question of fact
for the jury. It may commence at a point on and
extending over the twenty feet occupied by the rail¬
road of another, he not objecting, and terminate with¬
in one hundred feet of that road on the same public
canal.6
Evidence of the enhancement of the value of the
petitioner's land by the proposed road, is inadmissi¬
ble in proceedings under this Act.7
A. being the owner of a coal mine, proceeded under
this Act to ascertain the amount of damage which B.
would sustain by the location of a railroad across his
land, and a verdict was rendered in favour of B. for
the amount of damage. A. then entered upon B.'s
land and made the road before a judgment was en¬
tered on the verdict. It was held, that though the
proceedings thus had by A. did not furnish a justifi¬
cation of the trespass, yet they protected him from
vindictive damages.8
• 7 Harvey v. Lloyd, 3 Barr 331.
8 Harvey v. Thomas, 10 Waits 63.
CHAPTER XL
of the law of the road.
Usage in Pennsylvania has settled that travellers
meeting on a road are bound to take, respectively,
the right of the road. In England a contrary usage
prevails, and it has often been desired that the Eng¬
lish practice, as the most reasonable, should be here
adopted, for so long as drivers sit to the right of their
vehicles, which side allows them the freest use of
their whips, so long will it be more convenient for
meeting vehicles to pass on each other's right hand,
as the danger of collision between them is thereby
lessened.*
In the Cumberland road, travellers meeting are
required to pass each other on the left. (See postea).
It is usual in the charters of bridge companies to
introduce a provision requiring persons passing them
to " keep to the right."
The following points have been decided as to the
duty of travellers in cases where one overtakes
another travelling in the same direction.
A traveller may use the middle or either side of a
* The following- lines refer to the English usage :
" The law of the road is a paradox quite,
On the right you are wrong,, on the left you arc right"
OF THE LAW OF THE ROAD
141
public road at his pleasure, and is not bound to turn
aside for another travelling in the same direction,
provided there be convenient room to pass on the
one hand or the other.*
If there be not convenient room to pass, it is,
doubtless, the duty of the other to afford it on re¬
quest made, by yielding to the hindmost traveller an
equal share of the road, if that be adequate and prac¬
ticable ; if not, it must be deferred until the parties
arrive at ground more favourable to its accomplish¬
ment. Should the leading traveller refuse to comply,
he would be answerable for it in due course of law.
But the other has no right to force a passage by a
forcible collision.2
Evidence of a custom for the leading carriage to
incline to the right, the other passing at the same
time to the left, ivcis held not to control the general
law in such a case.3
1 2 8 Bolton v. Colder, I Watts 360.
CHAPTER XII.
OF FERRIES.
No custom exists to ground a right to land or re¬
ceive freights, or establish ferries on another person's
freehold, without his consent.*
The right to navigate a public river transversely
or otherwise, is susceptible of exclusive appropriation
only by grant from the public to whom it belongs ;
and consequently we have no ferries by prescriptive
right or presumptive grant of exclusive navigation
from length of time. But the owners of the shores
have the power to control the subservient and indis¬
pensable right of embarkation and landing, even at
the terminus of a public road.2
The grant of a privilege of landing and embarking
ferry boats upon the land of another, may be pre¬
sumed from the use of it for a long time. And the
ordinary and occasional use of it would be such an
occupation of the privilege as would be noted to a
purchaser of the land out of which the privilege was
granted.3
The grant of a privilege to land and embark ferry
boats upon the land of another held by a Connecticut
title, is not effected by a grant of title from Pennsyl¬
vania, which did not extinguish but confirmed the
Connecticut title.4
1 Chambers ». Furry, 1 Yeales 167 ; Cooper ». Smith, 9 S. & R. 32.
2,4 Bird ». Smith, 8 Watts 434.
CHAPTER XIII.
CONCLUSION.
The following Acts of Assembly and Resolution
adopted by the Assembly, could not be conveniently
arranged under any of the foregoing heads.
"An Act to declare the uses of certain bonds,"
passed April 13, 1827 :
"Section 1. Bonds or obligations given for the due
execution of his or their respective offices or employ¬
ments, by commissioners, trustees or others appointed
by virtue of laws of this commonwealth, for the
opening, constructing or erecting of any roads or
bridges, and for the receipt and disbursement of mo¬
neys and taxes for the making, constructing or erect¬
ing of the same, in all cases where townships or coun¬
ties are or may be interested in the faithful perform¬
ance of the covenants mentioned or contained in the
provisions thereof, the said bonds or obligations shall
be deemed and taken, as the case may be, for the use
of and in trust for the commissioners of the county
aggrieved, or for the use of and in trust for the super¬
visors of the roads and highways of the township or
townships aggrieved by the misfeasance or nonfea¬
sance of the persons who have given or may give
the same.
" Section 2. When any of the said bonds shall be
put in suit, and judgment thereon obtained, the judg¬
ment shall remain in the same nature the said bonds
144
CONCLUSION.
or obligations were, and no execution shall issue
thereupon, before the said county, township or town¬
ships or party grieved shall, by writ of scire facias,
summon the person or persons against whom the
said judgment is obtained, to appear and show cause
why execution shall not issue upon the said judg¬
ment ; and if the county, township or townships or
party grieved shall prove what damages the said
county, township or townships or the party aggrieved
has sustained, and thereupon a verdict be found for
the said county, township or townships or party
grieved, the Court of Common Pleas where such suit
is, shall award execution for so much as the jury
shall then find, with costs and 110 more, and the for¬
mer judgment is hereby declared still to remain cau¬
tionary for the satisfaction of such others as shall
legally prove themselves damnified, and recover
their damages in manner aforesaid.
" Section 3. No person shall be excluded from
being a witness or juror, in the trial of any case un¬
der this Act, by reason of his being an inhabitant of
any county which may be interested in such suit, or
by reason of his being liable to the payment of any
county, township or other taxes."
The following Resolution was adopted April 2,
1831 :
" Where any public road or highway in this com¬
monwealth shall be injured or destroyed by the con¬
struction of any canal, railroad, feeder or dam belong¬
ing to the state, either by the actual occupation of
said roads or highways, or by damming the water
on the same, the superintendent of the line of canal,
railroad, feeder or dam, upon which such injury has
been sustained, shall, under the direction of the canal
CONCLUSION.
145
commissioners, put the said roads and highways in
as good order and repair as they were in before the
making of such canals, railroads, feeders or dams."
The following are the concluding sections of the
Act of June 13, 1836 :
" Section 81. Nothing in this Act shall be deemed
or taken to repeal any special or local Act now in
force relating to roads in any of the counties of this
commonwealth, except such local Acts relating to the
City and County of Philadelphia, as are inconsistent
with the provisions of this Act.
" Section 82. All laws hereby altered or supplied,
so far as they are inconsistent with this Act. are
hereby repealed, and this Act shall take effect from
and after the first day of September next."
Coaches carrying the mail of the United States are
protected by the Act of Congress from being wilfully
and wantonly obstructed or delayed, but they are on
a footing with all other carriages in every other res¬
pect.1
A public road upon lots of ground which the
owner had covenanted to sell and convey, is not
such an incumbrance as will entitle the vendee to
defalk from the amount of the purchase money, in
an action of covenant for the price upon the agree¬
ment of sale.2
1 Bolton v. Colder, 1 Watts 363, per Gibson C. J.
* Patterson v. Arthurs, 9 Watts 152.
13
APPENDIX.
ACTS OF ASSEMBLY RELATING TO THE CU3IBERLAND ROAD*
" An Act for the preservation and repair of the Cum¬
berland Road, (passed April 4, 1831).
" Whereas, that part of the Cumberland road lying with¬
in the State of Pennsylvania, is in many parts in bad con¬
dition for want of repairs, and as doubts have been enter¬
tained whether the United States have authority to erect
toll gates on said road and collect toll ; and as a large por¬
tion of the people of this commonwealth are interested in
said road and its constant continuance and preservation :
" Therefore,
" Section 1. As soon as the consent of the government
of the United States shall have been obtained, as herein¬
after provided, William F. Coplan, David Downer, of Fay¬
ette county, Stephen Hill, Benjamin Anderson, of Washing¬
ton county, and Thomas Endsley of Smithfield, Somerset
county, shall be and they are hereby appointed commis¬
sioners, a majority of whom shall be sufficient to transact
business, who shall hold their offices for three years after
the passage of this Act, after which the right of appointing
said commissioners shall rest in the governor of this com¬
monwealth, to build toll houses and erect toll gates at suit¬
able distances, on so much of the Cumberland road as lies
within the State of Pennsylvania : provided, that if any¬
one or more of the said commissioners should die, resign
or refuse to serve, the governor shall appoint one or more
other commissioners to fill the vacancies so happening :
and provided also, that nothing herein contained shall be
construed to prevent the governor from re-appointing the
commissioners named in this Act, if he thinks proper.
[The number of commissioners has been reduced to one by
APPENDIX.
147
the Act of March 28, 1840, postea, and changed to two by
Act of March 16, 1847, postea].
" Section 2. For the purpose of keeping so much of the
said road in repair as lies within the State of Pennsylvania
and paying the expenses of collection and other incidental
expenses, the commissioners shall cause to be erected on
so much of the said road as passes within this state, at
least six gates ; and that as soon as said gates and toll
houses shall be erected, it shall be the duty of the toil col¬
lectors, and they are hereby required to demand and re¬
ceive for passing the said gates the tolls hereafter men¬
tioned ; and they may stop any person riding, leading or
driving any horses, cattle, sulky, chair, phaeton, cart,
chaise, wagon, sleigh, sled or other carriage of burden or
pleasurfe, from passing through the said gates until they
shall respectively have paid for passing the same, that is
to say, for every space of fourteen miles in length on said
road, the following sums of money, and so in proportion
for every greater or lesser distance; the rates of toll to be
collected at each gate shall be the following, to wit, for
every score of sheep or hogs, six cents ; for every score of
cattle, twelve cents ; for every led or drove horse, three
cents ; for every horse and rider, four cents ; for every
sleigh or sled, for each horse or pair of oxen drawing the
same, three cents ; for every dearborn, sulky, chair or
chaise with one horse, six cents ; for every chariot, coach,
coachee, stage, wagon, phaeton, chaise with two horses
and four wheels, twelve cents; for either of the carriages
last mentioned with four horses, eighteen cents ; for every
other carriage of pleasure, under whatever name it may
go, the like sum according to the number of wheels and
horses drawing the same ; for every cart or wagon whose
wheels shall exceed two and a-half inches in breadth and
not exceeding four inches, four cents for every horse or
pair of oxen drawing the same ; and every other cart or
wagon whose wheels shall exceed four inches and not ex¬
ceeding five inches in breadth, three cents for every horse
or pair of oxen drawing the same ; and for every other cart
or wagon whose wheels shall exceed six inches and not
more than eight inches, two cents for every horse or pair of
oxen drawing the same ; all other carts or wagons whose
wheels shall exceed eight inches in breadth, shall pass the
said gates free of toll ; provided, that the commissioners
148
APPENDIX.
appointed by the 1st section of this Act, may commute the
rates of toll with any person or persons, by taking of him
or them a certain sum annually in lieu of the tolls afore¬
said : and provided also, that nothing in this Act shall be
construed so as to authorize any tolls to be received or col¬
lected from any person or persons passing or repassing
from one part of his farm to another, or to or from a mill,
or to or from any place of public worship, funeral, militia
training, elections, or from any student or child going to or
from any school or seminary of learning; or from persons
and witnesses going to and returning from courts : and
provided further y that no toll shall be received or collected
for the passage of any wagon or carriage laden with the
property of the United States, or any cannon or military
stores belonging to the United States or to any* of the
States comprising this Union.*
" Section 3. The said commissioners shall appoint pro¬
per and suitable persons as toll-gatherers, who shall settle
their accounts quarterly with the commissioners, and at all
other times when thereunto required, and shall, at all times,
pay over to them on demand, the amount of tolls by them
collected ; and it shall be the duty of the said commission¬
ers to render annually to the Court of Quarter Sessions of
the respective counties through which the road passes, an
account of the tolls received and expenses incurred on said
road, on oath or affirmation, and publish the same in one
or more newspapers in each county through which the
road passes ; and they shall each receive a compensation
of two dollars per day for every day that they shall be en¬
gaged on the business of said road : provided, that the
annual compensation to any one commissioner shall not
exceed the sum of one hundred dollars. [Compensation al¬
tered by section 6 of the Act of March 28, 1840,-postea\
" Section 4. The amount of tolls, after deducting there¬
from the expenses and charges of collection and compen¬
sation of commissioners, shall be applied, under the direc¬
tion of the commissioners, to the repairs and preservation
of said road, in such manner, and under such regulations,
as they from time to time prescribe, and to no other pur¬
poses whatever ; and the said commissioners shall have
power to increase or diminish the rates of toll : provided y
* The tolls have been increased by Act of April 14, 1845, postea.
APPENDIX
149
that the same shall, at no time, be increased beyond the
rates of toll established by an Act entitled " an Act author¬
izing the governor to incorporate a company for making
an artificial road from the bank of the river Susquehanna
opposite the borough of Harrisburgh to Pittsburgh," passed
the twenty-fourth day of February, one thousand eight
hundred and six.
" Section 5. Directors shall be set up at proper and con¬
venient situations, to caution all conductors or drivers of
carriages, on the road aforesaid, that they shall, at all
times, pass on the left of each other, under the penalty of
two dollars for every offence.
" Section 6. If any of the toll-gatherers shall unreason¬
ably delay or hinder any passenger or traveller at any of
the gates, or shall demand or receive more ti ll than may
be established under this Act, he shall, for each and every
offence, forfeit and pay to the party so aggrieved, the sum
of twenty dollars.
" Section 7. If any person or persons shall wilfully and
of purpose, throw down or otherwise injure any of the
walls, bridges, culverts or other works on said road, or
shall otherwise wilfully injure or obstruct the passage of
the said road unnecessarily, the person or persons so of¬
fending shall forfeit and pay, for every such offence, any
sum not less than five nor more than fifty dollars, to be
collected and applied as is directed in the 9th section of
this Act.
" Section 8, The toll-gatherers on said road shall res¬
pectively receive compensation for their services, at the
rate of twelve per cent, on the amount of tolls by them
respectively collected: provided, lhat the anqual compen¬
sation of any toll-gatherer shall never exceed the sum of
two hundred dollars.
"Section 9. The penalties and forfeitures which may be
incurred under this Act, shall and may be sued for and re¬
covered in the name of the commissioners of the road,
without naming them as individuals, or of any person prose¬
cuting the same ; the one moiety thereof to the use of the
commonwealth, the other to the person so prosecuting for
the same, before any magistrate or court having jurisdic¬
tion in like cases.
"Section 10. This Act shall not have any force or ef¬
fect until the Congress of the United States shall assent to
13*
150
APPENDIX.
the same, and until so much of the said road as passes
through the State of Pennsylvania be first put in a good
state of repair, and an appropriation made by Congress for
erecting tell houses and toll gates thereon, to be expended
under the authority of the commissioners appointed by this
Act: provided, the Legislature of this state may, at any
future session thereof, change, alter or amend this Act,
provided that the same shall not be so altered or amended
as to reduce or increase the rates of toll hereby established,
below or above a sum necessary to defray the expenses in¬
cident to the preservation and repair of said road, for the
payment of the fees or salaries of the commissioners, the
collectors of tolls and other agents : and provided further,
that no change, alteration or amendment shall ever be
adopted that will in any wise defeat or affect the true in¬
tent and meaning of this Act
"A Supplement to an Act for the preservation and re¬
pair of the Cumberland Road, (passed April 1, 1835).
"Section 1. It shall be the duty of the supervisors of
highways of the townships in the Counties of Somerset,
Washington and Fayette, through which the Cumberland
road passes, to make or cause to fee made a paved valley
or stone culvert, where any state, county or township roads
shall intersect the said Cumberland road, so as to admit the
free passage of water along the side of the same.
" Section 2. If any person shall drive a wagon, coach
or other carriage, either fast or rough locked, or shall drag
any log or piece of timber upon said road, except farmers
hauling logs for the use of their farms, and when it shall
be covered with ice, or shall stand any wagon, coach or
other carriage over night or for the purpose of feeding, or
shall in any manner purposely obstruct the travelling upon
the same, he shall forfeit and pay a sum not exceeding five
dollars, to be recovered and applied as is directed by the
9th section of the Act to which this is a supplement.
" Section 3. The surrender by the United States of so
much of the Cumberland road as lies within the State of
Pennsylvania, is hereby accepted by this state ; and the
commissioners to be appointed under this Act are authorized
to erect toll gates on the whole or any part of said road, at
such times as they may deem it expedient and proper to
do so.
ArPENDIX.
151
" Section 4. The toll-gatherers shall keep an accurate
account of all moneys received by them, and when required
by the commissioners, shall make out a statement of the
same under oath or affirmation.
Section 5 of an Act passed April 4, 1837, " appropriat¬
ing the state dividends of stock in the Youngmanstown
and Bellefonte Turnpike Road," &c., provides that " from
and after the passage of this Act, all persons engaged in
the transportation of fuel for home consumption on that
part of the Cumberland road which passes through Penn¬
sylvania, shall be exempt from the payment of toll, any
thing in the act for the preservation and repair of the
Cumberland road to the contrary notwithstanding."
"Resolution relative to the appointment of commissioners
on the Cumberland road, (passed February 5, 1839).
" Resolved by the Senate and House of Representatives
of the Commonwealth of Pennsylvania, in General Assem¬
bly met, that each of the commissioners within the limits
of Pennsylvania on the Cumberland road, who now are or
•»
shall hereafter be appointed, before entering upon the per¬
formance of his duties, shall give a bond to the common¬
wealth in the penal sum of six thousand dollars, with
security to be approved of by one of the judges of the
Court of Common Pleas of Somerset, Fayette or Wash¬
ington counties, conditioned for the faithful performance
of their respective duties, and also, that so much of the
law as is altered or supplied, be and the same is hereby
repealed."
The following sections are from " an Act authorizing a
review of part of the Emlinton and Centreville State Road
and for other purposes," (passed March 28, 1840).
" Section 4. That from and after the first Monday of
November next, the repairs of that portion of the Cumber¬
land road which passes through Pennsylvania, shall be
under the superintendence and direction of one com¬
missioner, who shall be appointed by the governor and
shall hold his office for the term of three years, unless
sooner superseded, and shall receive for his services three
dollars per day for each and every day necessarily engaged
in the performance of his duties.
152
APPENDIX
"Section 5. That the commissioner so appointed shall,
previous to his entering upon the duties of his office, give
bond to the commonwealth for the faithful performance of
the duties of his office in the penal sum of ten thousand
dollars, with surety to be approved by the Court of Common
Pleas of the County of Fayette or Washington.
"Section 6. That the said commissioners shall, annually,
render to the Courts of Common Pleas of the Counties of
Fayette and Washington, an account of all the receipts and
expenditures on the said road, specifying the receipts and
expenditures of each county, and said court shall appoint
auditors to settle and adjust the amount qu. account?] so
rendered by said commissioners, and the amount [account?]
when so settled and adjusted by said auditors, shall be pub¬
lished in at least one newspaper in each of the Counties of
Fayette and Washington.
" Section 7. That in case the said commissioner shall
be dissatisfied with the adjustment of his account by the
auditors, so as aforesaid appointed, he may appeal to the
said court, and they shall direct an issue to try the same,
if required."
A section of an Act passed on the 5th of April, 1843,
increased the tolls on the Cumberland road. It has been
supplied by the Act next hereafter mentioned, the pre¬
amble of which refers to it.
The following sections are from an Act passed April 14,
1845, "authorizing the laying out of a state road from the
Greensburgh Turnpike," &c.
" Section 11. That whereas, it has lately been decided
by the Supreme Court of the United States, that the Acts
of Assembly of this commonwealth, relating to the collec¬
tion of tolls on that part of the Cumberland road which is
within this state, passed June the thirteenth, eighteen hun¬
dred and thirty-six, and April fifth, eighteen hundred and
forty-three, do not authorize the collection of any amount
of tolls whatever for the passage upon said road of any
stage, coach and other vehicle carrying passengers with
their baggage and goods, if such stage, coach or other
vehicle is at the same time carrying any of the mails or
property of the United States. And whereas, the said
court sanctions the power of Pennsylvania to provide for
APPENDIX.
153
the repairs of said road by a general assessment of tolls
upon persons travelling thereon, which it is deemed just
and right should be paid : And whereas also, it is found
to be impracticable to keep said road in good repair and
out of debt by the the tolls collectable under the existing
laws of this commonwealth, as interpreted by said court ;
therefore,
" Section 12. In addition to the tolls, which by the
operative laws heretofore enacted, are authorized to be
demanded and received at the gates erected upon the Cum¬
berland road within Pennsylvania, there shall be paid, on
and after the first day of May next, at each of said toll
gates, by each and every person riding or travelling in or
upon any dearborn, sulky, chair, chariot, coach, coachee,
stage, wagon, phaeton, chaise or other carriage of pleasure
or travel, including stages, coaches or other vehicles car¬
rying United States mails, which shall pass or run upon
said road and through or to any toll gate thereon lawfully
erected, a tax or toll of not less than two nor more than
fifteen cents, as shall be fixed and determined from time to
time, by the commissioner of said road, for every fourteen
miles upon said road in which such person shall have been
a passenger or traveller, belonging to any such carriage,
and in proportion for shorter distances : provided, that no
toll under this Act shall be demanded for any driver of any
coach, stage or other public vehicle, nor from any person
bona fide employed as a guard to the mails or other public
property in any such carriage, nor from any duly employ¬
ed agent of the general post-office department, nor from
any bearer of despatches to or from the government of the
United States or this state, nor from any naval or military
officer of the United States or of this state who shall be at
the time travelling in discharge of the duties of his office;
but all such persons, upon exhibiting satisfactory evidence
of the character in which they are travelling, shallj pass
free from the toll imposed by this Act : provided also, that
no toll under this Act shall be demanded and received from
any of the persons exempt from toll by the laws of this
commonwealth, relating to said road, heretofore enacted :
and provided further, that nothing herein shall be con¬
strued so as to prevent changes of the present rates of tolls
upon the vehicles, as authorized by the law heretofore en¬
acted relating to said road ; such changes, as well as those
154
APPENDIX.
which may be made under this Act, to be uniform on each
particular species or mode of travel or riding, and to be
regulated according to the wants of the road.
"Section 13. That should any passenger or traveller,
liable to the payment of toil by this Act, neglect or refuse
to pay the same at any gate, then it shall and may be law¬
ful to collect the same, with costs, as debts of like amounts
are collectable by suit, in the name of the commissioner of
said road, against any person or his or her parent, hus¬
band, master or guardian, or against the owner or owners,
or bailee or bailees of the carriage in which such person
shall be, or shall have been a passenger or traveller, and
in no suit for toils under this Act, or under former Acts
relating to the same road, shall any plea in abatement for
non-joinder of any person or persons, jointly liable with
the person or persons sued, be allowed or sustained: pro¬
vided, that nothing herein contained, shall be construed to
prohibit any receiver or collector of tolls on said road, or
other agent of the commissioner, from stopping and detain¬
ing any carriage for the non-payment of toll, by any per¬
son or persons riding or travelling therein and liable there¬
for ; but the right of any such agent so to do is hereby
given, in addition to the other remedies by this Act pro¬
vided.
"Section 14. That it shall be the duty of every driver,
or person in charge of any carriage of pleasure or travel
upon said road, under penalty of fifty dollars for every wil¬
ful neglect or refusal, to be collected by suit as hereinbe¬
fore directed, for the use of the road, faithfully to report at
every gate through which such carriage may pass, the
number of persons or passengers properly belonging to such
carriage, who are liable to the payment of the tolls imposed
by this Act, in such way as to inform the collector of tolls
how much toll should be paid by all of the persons or pas¬
sengers.
" Section 15. That if by reason of the neglect or refusal
of passengers or travellers to pay, of drivers or conductors
faithfully to report as hereinbefore directed, or from any
other cause, any tolls by this Act authorized, be not paid
as hereinbefore required, it shall and may be lawful for the
collector of tolls at the gates on said road, to charge in a
book the unpaid tolls to either the passenger or passengers,
or any of the other persons specified in the foregoing sec-
APPENDIX.
155
tion of this Act, which account, when duly proved as other
book accounts are allowed to be by law, shall be competent
evidence in any suit for such unpaid tolls; and the amount
thereof liable to be paid by any one person, or by any two
or more persons jointly, may be sued for at the expiration
of any period of time, not longer than one year, during
which such tolls shall have been chargedv/and such suit or
suits shall be in the name of the commissioners of the road,
for the use thereof, and be exempt from abatement for non¬
joinder, as hereinbefore directed.
"Section 16. That if from any omission or neglect of
drivers, or travellers or passengers, collectors, or any col¬
lector of tolls on said road, shall not be enabled to ascer¬
tain the number of passengers or persons properly belong¬
ing to any carriage who are liable to toll under this Act, he
or they shall charge therefor, according to the number of
passengers which such carriage shall be capable of carry¬
ing, and the tolls therefor shall be collected and recovered
as hereinbefore directed : provided, that nothing in this Act
shall prevent the commissioner of said road from accepting
from the owner or owners, bailee or bailees of any carriage
or line or number of carriages of pleasure or travel, a gross
sum per month, per quarter or per year, so as thereby to
exempt from tolls all persons riding or travelling in the car¬
riages of such owner or owners, bailee or bailees, during
the time for which such gross sum shall be paid or agreed
to be paid, but the right of the commissioner so to do is
hereby given, and all contracts made in pursuance of this
provision shall be valid: and provided also, that the right
of the commissioner of said road to sue for and recover un¬
paid tolls, under any of the provisions of this Act, shall not
be impaired or defeated by any omission or defect in the
book charges hereinbefore authorized, but the same may be
recovered upon other adequate evidence in lieu of, or in
addition to such book charges.
" Section 17. That every person who shall fraudulently
evade or attempt to evade the payment of the toll imposed
by this Act, shall for every offence forfeit and pay to the
commissioner, for the use of said road, a penalty of not
more than twenty dollars, to be recovered by action, as
hereinbefore directed; and should the name or names of
any person or persons liable for the toll or any penalty
imposed by this Act, be unknown to the proper collector of
156
APPENDIX.
tolls or other agent of the commissioner, then a suit or suits
therefor may be instituted in the manner directed by the
7th and 8th sections of the Act entitled 'an Act relating
to the commencement of actions,' approved the thirteenth
June, eighteen hundred and thirty-six."
The following is the last section of " an Act declaring
obstructions to private roads to be a public nuisance, and
for other purposes," (passed March 16, 1847).
" Section 6. That from and after the expiration of the
term of the present commissioner, section four of an Act
entitled, ' an Act authorizing a review of part of Emlinton
and Centreville state road, and for other purposes,' ap¬
proved the twenty-eighth of March, eighteen hundred and
forty, be and the same is hereby repealed ; and the gover¬
nor of this commonwealth is authorized and required to
appoint two commissioners, one of whom shall have charge
of that part of the Cumberland road lying east of the Mo-
nongahela river, and the other shall have charge of that
part lying west of the Monongahela river ; that each of
said commissioners shall receive a yearly salary of three
hundred and fifty dollars for his services, and shall per¬
form the duties, and be subject to all responsibilities en¬
joined by the several Acts of Assembly relative to commis¬
sioners of the Cumberland road. That so much of the
several Acts of Assembly relating to the Cumberland road,
as is hereby altered, be and the same is hereby repealed."
ADDENDUM.
[From the Pennsylvania Law Journal for June, 1848],
On the 8th of April last, the Legislature enacted a law
declaring that " all roads, the width of which have been
heretofore fixed under a standing rule of the court, and
opened accordingly, or ordered to be opened, are hereby
confirmed, and made as valid and legal as if the width had
been specially fixed by the court at the time of confirma¬
tion. Provided, that nothing herein contained shall be so
construed as to affect the cases already adjudicated."
This Act restrains the operation of the decision of the
Supreme Court in re Shefferstown road, 5th Barr 515.
3 5556 042 358515
This book is a preservation facsimile
produced for the Northwestern University Library.
It is made in compliance with copyright law
and produced on acid-free archival
60# book weight paper
which meets the requirements of
ANSI/NISO Z39.48-1992 (permanence of paper)
Preservation facsimile printing and binding
by
Acme Bookbinding
Charlestown, Massachusetts
2012