decided: November 17, 1980.
ANTHONY MATTEI AND CLARA T. MATTEI, APPELLANTS
PETER HURAY AND MARY HURAY, APPELLEES
Appeal from the Order of the Court of Common Pleas of Sullivan County in case of In Re: Laying Out and Opening of a Private Road, No. 78-202.
Scott A. Williams, for appellants.
Kenneth B. Lee, Lee & Simpson, for appellees.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 54 Pa. Commw. Page 562]
On August 27, 1979, the Court of Common Pleas of Sullivan County entered an order which confirmed the report of a Board of View recommending that Peter Huray and Mary Huray (Hurays) be granted the right to open a private road over property owned by Anthony Mattei and Clara Mattei (Matteis). The Matteis have filed this appeal from the lower court order. We affirm.
The Hurays filed a Petition on July 6, 1978 to appoint viewers and lay out a private road pursuant to Section 11 of the Act of June 13, 1836 (Act), P.L. 551, as amended, 36 P.S. § 2731. A Board of View (Board) was duly appointed and, after a hearing and view of the site, filed a report on October 31, 1978.
The record shows that the Hurays own a piece of land that has no direct access to a public road. They
[ 54 Pa. Commw. Page 563]
propose to build a private road across the Mattei property to a state highway. The road would be approximately 190 feet long. The Board of View found, inter alia, that the Hurays do have a right-of-way from their property to a public road, but that this right-of-way is not feasible for a private road because the topography would make construction of a road extremely expensive and inclement weather would close the road for a portion of each year. The Board concluded that the proposed road over the Mattei property is necessary and awarded damages to the Matteis in the amount of $1000.
The Matteis filed an appeal from the Board's report to the lower court demanding a jury trial and specifically objecting to the Board's failure to find available access either across lands of the Hurays or lands of persons other than the Matteis. The Hurays moved to quash the appeal. The trial court denied the motion but ordered an evidentiary hearing and oral argument on the specific objections filed by the Matteis. Following the hearing, the lower court entered an order confirming the Board's report and granting a jury trial solely on the issue of damages.*fn1 The Matteis have filed this appeal from that order.
The Matteis contend that the lower court erred (1) in failing to grant a trial de novo on the issue of necessity for the proposed private road and (2) in considering the report of the Board rather than making an independent determination of necessity. Further, the Matteis contend that necessity for the proposed road has not been established by the Hurays.
[ 54 Pa. Commw. Page 564]
The Matteis base their claim to a trial de novo on their objections to the Board's report on Section 517 of the Eminent Domain Code (Code),*fn2 which they contend applies in the instant case. The trial court held that Section 517 of the Code did apply, but that the provisions of that section limited the right to trial by jury to the issue of damages and required the court to dispose of the specific objections preliminarily.
Although the proceedings to take land for a private road are clearly in the nature of eminent domain, Little Appeal, 180 Pa. Superior Ct. 555, 119 A.2d 587 (1956), the Legislature has provided a statute governing public and private roads that is wholly independent of the Eminent Domain Code.*fn3 Section 11 of the Act provides that proceedings to open a private road shall be conducted in the same manner as proceedings to open a public road.*fn4 Section 12 of the Act, 36 P.S. § 2732, provides that if the report of the viewers is that
[ 54 Pa. Commw. Page 565]
such road is necessary, the court merely sets the width thereof and thereafter the road shall be deemed to be a private road. The procedure to open a public road is also provided by the same Act, 36 P.S. § 1781 et seq. Appeals from the award of damages by a board of view are provided by the Act of April 15, 1891, P.L. 17, 36 P.S. § 2151, an amendment to the original Act.*fn5 Accordingly, we conclude that the provisions of the Code are not applicable to this case.
However, the trial court was correct when it held that the Matteis were not entitled to a jury trial on the issue of necessity. Marinclin Appeal, 204 Pa. Superior Ct. 552, 205 A.2d 885 (1964) held specifically that "[t]he right to a jury trial to determine the necessity for a private road is not given by the statutes." Id. at 557, 205 A.2d at 887.
Concerning the trial court's scope of review, the Marinclin Appeal and Little Appeal, supra, hold that
[ 54 Pa. Commw. Page 566]
the determination of necessity is a factual matter to be determined by the Board, not by the trial court whose review is limited to a confirmation or a rejection of the Board's report.
In the instant case, the Matteis really received more than the law authorized. Not only did the trial court review the Board's report but it also held an evidentiary hearing from which it concluded independently that the necessity issue had been properly resolved in favor of the Hurays.
And Now, this 17th day of November, 1980, the Order of the Court of Common Pleas of Sullivan County confirming the report of the Board of View and granting trial by jury on the issue of damages is affirmed.