Killbuck Private Road.
1. A private road must have for its principal terminus the plantation or dwelling of the petitioner.
2. It is error to fix the width of a private road at thirty-three feet, the act limiting the width to twenty-five feet.
3. By an Act of Assembly (February 24th 1873) a surveyor is to be appointed for Allegheny county, with authority to appoint a deputy to perform his duties; the surveyor to act as artist on road views, &e. Viewers were appointed, the county surveyor by name being one, without designating his office. The report was signed by his deputy. Held, that the substitution of the deputy was proper.
4. Sandy Lick Creek Road, 1 P. F. Smith 94, recognised.
October 12th 1874.
Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1874, No. 87.
The proceedings in this case were for a private road, upon the petition and for the use of James M. Graham, Benjamin Waters and F. H. Anderson, in Killbuck township.
The petition was presented April 26th 1873, representing that the petitioners labored under “inconvenience for want of a private road to lead from the end of a private road (granted by IT. P. Mueller, deceased, to the grantees of certain property in said ITillbuck township, the above-named petitioners being some of said grantees) to the river at, &c., on the ground or land of Robert Phillips.”
Viewers were appointed who reported; that the road prayed for was necessary, and they returned a private road as follows:—
“Beginning at the east end of said private road at a post in centre thereof, thence on lands of Robert Phillips, south 51° east 10 perches, more or less, to low-water line on the Ohio river near to said bunch of willows, a diagram of which is hereunto annexed. The above road seems to be a continuance of the road by H. P. Mueller, and terminating on the lands of Robert Phillips, and he for some reason, best known to himself, has put a gate on said road, near to his line, preventing the petitioners from the use of that end of the road, which leads to the Ohio river. We award no damages to Robert Phillips, he having refused to give a release.”
On the 2d of June 1873, the road was approved and when opened to be thirty-three feet wide.
On the 2d of August 1873, Robert Phillips presented a petition for review, representing that the “ private road, if confirmed by the court, will be very injurious to your petitioner, and burthensome to him, and that said road is not necessary for said petitioners for the same, and further that the said petitioners to said private road are not entitled to have the same, as it does not lead from their property to a public road, and is not necessary as a *40private road, and the petitioners for said private road have now a good public road to said river close by and nearly parallel to this private road.”
The re-viewers reported:—
“We have reviewed said private road from a point on the Beaver road, thence south along the centre of said private road 16-J feet wide 11.8 perches to centre of said road at 33 feet wide, thence south 74° 20' east along the centre of said road 16.2 perches to Robert Phillips’s line, thence through land of said Robert Phillips to the Ohio river. We do further report that-in our opinion that part of said road through land of Robert Phillips is unnecessary and of great damage to him. Not necessary because the parties asking said road have a front of 16.2 perches on the Ohio river between said points.”
This report was approved and ordered to be filed.
On the 4th of October 1873, Anderson and Graham, two of the original petitioners, petitioned for a re-review; the court appointed George M. Bowman (artist), William Miller and James M. Smith, re-reviewers. Bowman was county surveyor of Allegheny county.
The re-reviewers reported that they were “of opinion that a road is necessary at the place prayed for in said petition, and that after examining a deed of conveyance from H. P. Mueller, Esq., to Robert Phillips, whereby the land therein described is conveyed to him, the said Robert Phillips, for the purpose of a road, and for no other purpose whatever, and under certain conditions, to wit: The express provision, that the said party of the second part, his heirs or assigns, shall make said road at their own proper expense, and keep the same in good and sufficient repair at all times hereafter, the party of the first part reserving to himself, his heirs or assigns, of his other land at or near Killbuek station, now owned by him, the right to use said road from the Beaver road to the end thereof on the Ohio river, without further let or hindrance, to have free ingress and egress therein for ever, for the purpose of a road, and for no other purpose whatever, and notwithstanding ample provision has thus in our opinion been made for the accommodation of the petitioners, we have nevertheless laid out and returned for private use the following described road, commencing at a point at equal distances between the posts to which a gate is swung across the end next the river of the said road, thence south, &c., to the Ohio river, together 70J feet of river beach, the property of said Robert Phillips, to whom, having been applied to for a release of damages and being refused, we award no damages. James D. Hilands, Deputy Engineer, William Miller, James M. Smith.
By Act of February 24th 1873, (Pamph. L. 155), the District Court of Allegheny county was authorized to appoint a “ surveyor and civil engineer” for that county, who should have authority to
*41
*42appoint a deputy. Amongst other duties imposed by the act on the surveyor and engineer, it was enacted that he should “ either in person or by deputy act as artist in all road and bridge views, &c., where the same may be ordered by the court,” &c.
On the 2d of December 1873, the report of the re-reviewers was approved and the road ordered to he opened thirty-three feet wide.
Exceptions to the reports were filed by Phillips.
I. That Bowman was appointed a viewer and the report was not signed by him but by Iiilands.
3. The report finds that petitioners have ample accommodations without the private road.
7. There is a public road from the Beaver road, just below ex-ceptant’s private road, and landing.
The location of the different roads, &c., involved in this controversy appear to he as follows: Phillips owned land on the Ohio river, south eastwardly of the petitioners’ lands; from the line of Phillips’s land there is a private road (referred to in the reports) to Glendale station on the Beaver road and the Pittsburg, Eort Wayne and Chicago Railroad; at the line of Phillips’s land and the end of the private road there is a gate referred to in the reports ; the existing private road (Mueller’s) from Phillips for a distance of 162 perches is thirty-three feet wide ; at the end of -that distance it turns about at right angles and reaches the Beaver road at the distance of 11.8 perches, being for that distance sixteen and a half feet wide.
On the 27th of February 1874, .the court dismissed the exceptions and confirmed the report of the re-reviewers.
Phillips removed the record to the Supreme Court by certiorari; he there assigned for error :
3. Confirming the re-review made by other persons than those appointed.
4. Confirming the report although it found that the petitioners had ample accommodation without the private road.
6. Fixing the width of the private road at thirty-three feet.
8. None of the petitions asked for a private road from the dwellings or plantations of the petitioners to the highway or place of public resort or to some other private way.
It. Woods (with whom were S. Woods and J. WMteselT), for certiorari,
cited Sandy Lick Creek Road, 1 P. F. Smith 94.
J. It. Large, contó.
November 16th 1874.
Mr. Justice Gordon
delivered the opinion of the court,
It appears from the several reports of the viewers and reviewers, and the drafts submitted to us in this case, that this private road, *43as petitioned for by James N. Graham et al., and as confirmed by the court, has for one of its termini a private road leading to a public highway, called the Beaver road, and for its other the Ohio river.
That it was error in the court to make such confirmation, under the circumstances, is patent from the Act of Assembly under which the proceedings were had.
That act (of 1886) requires that such private road shall have for its principal términus the dwelling or plantation of the petitioner. If it have not this essential feature it is outside the provisions of the act, and therefore without authority and void: Sandy Lick Creek Hoad, 1 P. F. Smith 94.
The court committed a further error in fixing the width of the road at thirty-three feet, as the limit prescribed by the act is twenty-five feet.
Exception is also taken to the record because the name of Hilands appears in the report as a viewer, instead of that of Bowman, the appointee of the court; hutas it is admitted that Bowman was the county surveyor, and Hilands his deputy, this substitution was regular and proper under the Act of Assembly “ Belating to the office of Surveyor and Civil Engineer for the county of Allegheny,” February 24th 1873, Pamph. L. 155.
Let the proceedings of the Quarter Sessions be set aside.