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NEAL C. BITTING AND MARGARET M. BITTING v. DOROTHY BEASTON ET AL. RAY BITTING AND MARY BITTING (10/18/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 18, 1988.

NEAL C. BITTING AND MARGARET M. BITTING, HIS WIFE
v.
DOROTHY BEASTON ET AL. RAY BITTING AND MARY BITTING, HIS WIFE, APPELLANTS. NEAL C. BITTING AND MARGARET M. BITTING, HIS WIFE, APPELLANTS V. DOROTHY BEASTON ET AL., APPELLEES

Appeals from the Order of the Court of Common Pleas of Perry County in the case of Neal C. Bitting and Margaret M. Bitting, his wife v. Dorothy Beaston; Ida Alice Metz; and Neal J. Smith and Jane Smith, his wife v. Ray Bitting and his wife, and Dean Ernest and his wife, No. 84-78.

COUNSEL

Allen E. Hench, for appellants, Neal and Margaret Bitting.

Robert L. O'Brien, for appellants, Ray and Mary Bitting.

Daniel Stern, for appellees, Dorothy Beaston, Neil J. Smith and Jane Smith.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry. This decision was reached prior to the resignation of Judge MacPhail.

Author: Barry

[ 120 Pa. Commw. Page 449]

These appeals are from an order of the Court of Common Pleas of Perry County which affirmed a decision of a Board of View opening a private road from the land of appellants, Neal and Margaret Bitting. Neal and Margaret Bitting had petitioned for the opening of a private road from the western portion of their land to a public highway over the land of respondents and appellees, Dorothy Beaston, Neal and Jane Smith and Ida Alice Metz. Part of the road requested would consist of an existing road traversing the properties of Neal and Jane Smith and Ida Alice Metz. The Board of View issued

[ 120 Pa. Commw. Page 450]

    an order which found a necessity for a road from the western portion of the Bittings' land, but the Board considered an existing lane to be more appropriate and ordered a private road opened along such lane. The existing lane is much longer than the private road petitioned for and passes through the property of Neal Bitting's brother, Ray, and his wife, Mary, and through a small section of the property of Dean Ernest. In the Board's order, Ray and Mary Bitting and Dean Ernest and his wife are joined as additional respondents. The court of common pleas affirmed the Board's order. Neal and Margaret Bitting and Ray and Mary Bitting have appealed to this Court. Their appeals were consolidated.

Neal and Margaret Bitting first argue that the Board went beyond the authority of the applicable statute in laying out a road over land of other than those named as respondents in the petition. The statute authorizing the opening of private road, 36 P.S. ยง 2731,*fn1 reads in pertinent part:

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, . . . for a road from their respective lands or leaseholds 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 road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty-six.

The Board of View appointed by the court has broad authority to determine whether the road is necessary.

[ 120 Pa. Commw. Page 451]

    it, but the Board cannot open a road which the petitioner did not request.*fn2

Because of our disposition of this issue, we need not address the other issues presented by Neal and Margaret Bitting. Also, because we are vacating the order opening a road over Ray and Mary Bitting's property, the appeal of Ray and Mary Bitting, who argue a denial of due process because no notice was given that their property would be taken, is rendered moot.

For the foregoing reasons, we vacate the order of the Court of Common Pleas affirming the order of the Board of View and we remand this matter for proceedings consistent with this opinion.

Order in 486 C.D. 1987

Now, October 18, 1988, because of the disposition of the matter at Docket No. 490 C.D. 1987 of the Commonwealth Court of Pennsylvania, this appeal is dismissed as moot.

Order in 490 C.D. 1987

Now, October 18, 1988, the order of the Court of Common Pleas of the 41st Judicial District of Pennsylvania, Perry County Branch, entered January 30, 1987, at Docket No. 84-78, is vacated and this matter is remanded for proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

This decision was reached prior to the resignation of Judge MacPhail.

Disposition

Appeal of additional respondents dismissed as moot. Order vacated and case remanded.


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