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RICHARD P. DRIVER AND SARA M. DRIVER v. EARL J. TEMPLE AND EDNA TEMPLE (05/23/88)

filed: May 23, 1988.

RICHARD P. DRIVER AND SARA M. DRIVER, HIS WIFE, AND SAMUEL D. HARRIS AND MARGARET E. HARRIS, HIS WIFE, APPELLEES,
v.
EARL J. TEMPLE AND EDNA TEMPLE, HIS WIFE, AND WALTER H. HEFFNER AND MARY H. HEFFNER, HIS WIFE, APPELLANTS



Appeal from Order of the Court of Common Pleas, Civil Division, of Lycoming County, No. 84-00519.

COUNSEL

Michael R. Lynn, Bloomsburg, for appellants.

J. Howard Langdon, Muncy, for appellees.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Olszewski, J., files a concurring and dissenting opinion. Kelly, J., files a dissenting opinion in which Beck and Johnson, JJ., join.

Author: Wieand

[ 374 Pa. Super. Page 391]

This appeal by Earl Temple and by Walter and Mary Heffner, husband and wife, is from an order confirming finally the report of a board of viewers which established a private road across their lands for the purpose of giving appellees, Richard and Sara Driver, husband and wife, and Samuel and Margaret Harris, husband and wife, access to

[ 374 Pa. Super. Page 392]

    their adjoining properties. Although appellants concede that appellees' lands are "landlocked," they contend that the board of viewers abused its discretion by refusing to establish the roadway along the shortest available route. Before considering this issue, we must determine whether the order of the trial court is subject to appellate review prior to a determination of the damages to be paid to appellants for the land taken from them for appellees' road.

Proceedings for the opening of private roads are authorized by the Act of June 13, 1836, P.L. 551, as amended. Section 11 thereof (36 P.S. § 2731) provides in pertinent part as follows:

The several courts of quarter sessions shall, . . . upon petition of one or more persons . . . for a road from their respective lands or leaseholds to a highway or place of necessary public resort . . . direct a view to be had of the place where such road is requested, and a report thereof to be made . . . .

Section 1 (36 P.S. § 1781) specifically authorizes the court to appoint a board of viewers, whose duties are defined in section 2 (36 P.S. § 1785) as follows:

The persons appointed as aforesaid shall view such ground, and if they shall agree that there is occasion for a road, they shall proceed to lay out the same, having respect to the shortest distance, and the best ground for a road, and in such manner as shall do the least injury to private property, and also be, as far as practicable, agreeable to the desire of the petitioners.

Section 12 (36 P.S. § 2732) provides that if it shall appear by the report of viewers to the court that such a road is necessary, ". . . the proceedings in such case[] shall be entered on the record, as before directed, and, thenceforth such road shall be deemed and taken to be a lawful private road." Thereafter, according to section 16 (36 P.S. § 2736),

[t]he damages sustained by the 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

[ 374 Pa. Super. Page 393]

    road was granted or laid out: Provided, That no such road shall be opened before the damages shall be fully paid.

Proceedings to open private roads and subsequent proceedings to assess damages therefor are distinct proceedings. The commencement of proceedings for the assessment of damages, it has been held, is a waiver of defects in the order confirming the opening of the private road. Weaver's Road, 45 Pa. 405 (1863). Because of the bifurcated course which the two proceedings must take, the trial court is required to determine all legal issues involved in the proceeding to take another's land for private use before the damages to be paid can be assessed. Only after it has been decreed that a private road is necessary and is to be opened across the land of another, and the location, width, and distance thereof have been determined, does it become possible to estimate damages "in the manner provided in the case of a public road."*fn1 Of necessity, therefore, the two proceedings are separate and distinct.

This statutory procedure is still in effect. It has not been altered by constitutional amendment, by statute, or by procedural rule. In recognition of the bifurcated nature of such proceedings, this Court has entertained an appeal from an order confirming finally a viewers' report determining that a road shall be laid out and fixing the location thereof. See: In re Private Road in Monroeville Borough, Appeal of Marinclin, 204 Pa. Super. 552, 205 A.2d 885 (1964). The Commonwealth Court has similarly entertained such an appeal. Mattei v. Huray, 54 Pa. Commw. 561, 422 A.2d 899 (1980). This practice appears to be sound. For an appellate court to refuse to entertain such an appeal and require proceedings to assess damages to go ahead before the

[ 374 Pa. Super. Page 394]

    location of the roadway has been determined finally would permit absurd consequences in the event the location of the road were subsequently altered following appellate review. We conclude, therefore, that an order finally confirming the opening of a private road is an order which is sufficiently final to permit immediate appellate review.

The contrary holding of a panel majority in Beers v. Raub, 363 Pa. Super. 521, 526 A.2d 801 (1987), is disapproved and expressly overruled. The practice adhered to and followed in cases of this type for many years has not been altered by the elimination of courts of quarter sessions or by the establishment of a unified judicial system. The Act of 1836 and the practice thereunder remain extant.*fn2 Cf. Eminent Domain Code of June 22, 1964, P.L. 84, § 517, 26 ...


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