Richard W. Ledwith, Philadelphia, Roy P. Hicks and Hicks, Williamson & Freidberg, Pottsville, MacCoy, Evans & Lewis, Philadelphia, for appellant.
John Justus Bodley, Philadelphia, and James P. Bohorad, Pottsville, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Arnold, JJ.
[ 173 Pa. Super. Page 77]
Appellant petitioned the court below 'to appoint a Board of View to inquire into the expediency of vacating' a part of a road in the Borough of Shenandoah which crosses appellant's premises, the part to be vacated lying wholly within the Borough. The viewers, appointed pursuant to the petition, found: 'Said road is inconvenient, unnecessary, useless and would be burdensome to maintain', and reported: 'We vacate the road described' by metes and bounds. The Borough had not consented to the vacation and upon that ground excepted to the report. The court below sustained the exceptions and this appeal followed.
The petition relates to a part of the road which was originally a state road, laid out under the Act of March 28, 1848, P.L. 279, extending form Berwick, Columbia County, to Pottsville, Schuylkill County, and passing through Shenandoah. The viewers found 'that said
[ 173 Pa. Super. Page 78]
state road * * * was subsequently incorporated into the state highway system * * * and was designated as State Highway Route No. 464, Section 1, and Traffic Route 142'.*fn1 In 1949 the road was relocated by the Department of Highways and, as a result, that section of the road which passes through appellant's property is no longer used as a state highway. The points at which the superseded road diverts from and reunites with the new highway are not shown on the map or described in the testimony.*fn2 Nor are the termini of the superseded road shown or described but one terminius is certainly within the Borough where it connects with and forms a part of the Borough's integrated system of streets and the other terminus is in either Maizeville or Gilberton which are located west of Shenandoah.
The State Highway Law of June 1, 1945, P.L. 1242, § 210, as amended, 36 P.S. § 670-210, provides in part: 'The secretary is hereby empowered to change, alter, or establish the width, lines, location, or grades of any State highway or any intersecting road in any township, borough, or incorporated town, in such manner as, in his discretion, may seem best, in order to correct danger or inconvenience to the traveling public, or lessen the cost to the Commonwealth in the construction, reconstruction, or maintenance thereof. After the relocation has been opened to traffic, the secretary by
[ 173 Pa. Super. Page 79]
notice to the local authorities, shall abandon as a State highway route or vacate the section of highway between the termini of the relocation. * * * Thereafter the part so vacated shall be closed to public use and travel, and shall no longer be a public road.' Quite properly, as will appear, the secretary took no action under this provision. He did not formally abandon or vacate the superseded highway or notify the local authorities of an abandonment or vacation, and the road remains open and is used for public travel.
There is a statement in the record that the Pennsylvania Public Utility Commission entered an order 'which authorizes and contemplates a vacation', and the viewers found: 'That on or about July 26, 1949, said State Highway Route No. 464, Section 1, was relocated by the Department of Highways of the Commonwealth of Pennsylvania, in the Borough of Shenandoah, following a hearing before the Pennsylvania Public Utility Commission, re A. 71608.' The report and order of the Commission were not introduced in evidence. Its jurisdiction may have been invoked because of railroad crossings over or under the superseded highway. Howbeit, appellant's counsel, referring to the Commission's order, frankly stated to the viewers: 'But no formal ...