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40 Pa. 284

Ross v. Malcom

Supreme Court of Pennsylvania

Decided July 1, 1861

Supreme Court of Pennsylvania · decided 1861-07-01

<p>Streets — Power of Street Commissioners to alter Location of Road previously opened by Supervisor.</p> <p>An order of the court of quarter sessions of Union county, issued in 1851 to “the supervisor” of the borough of Lewisburg to open a road, regularly reported by a jury the year before, and the road was partially opened. In 1855 another supervisor was appointed by the town council of the borough, who, under the same order, opened the road to its full length and breadth, and was paid by the borough for his work and expense in so doing. Two years after, the “street commissioner” of the borough, under resolution of the town council, got another order from the clerk of the quarter sessions, in which the draft was changed, and “ street commissioner” inserted for “ supervisor,” under which he changed the location of the road as opened in 1855, placing it farther upon the land of an adjoining lot owner, who brought an action of trespass against the “ street commissioner” for tearing down his fence, &c., in altering the road. Held,</p> <p>1. That the road was lawfully opened in 1855 by the supervisor of the borough, though the charter made no provision for the appointment of such an officer by name.</p> <p>2. That the road having been once fully opened, all authority under the order to open was exhausted, and the location could not afterwards be altered by another supervisor.</p> <p>3. That the presumption was, that the “ supervisor” mentioned in the order, by whom the road was opened, was the proper officer to open the road, until the contrary was shown by the defendant upon whom was the burthen of proof.</p> <p>4. That there being no power or authority in the street commissioner to alter the location of the road, he had no right to enter upon the land of the plaintiff to change it, and was guilty of trespass in so doing.</p>

Decided 1861-07-01

¶1*289The opinion of the court was delivered

by Lowrie, C. J.

¶2We are unable to declare any of these errors sustained. If this road was lawfully opened in 1855, the street commissioners and town council of 1857 had no authority to change its location. There is, therefore, but one question for consideration: was the opening in 1855 made by lawful authority ? It was done by the supervisor, and not disputed by any other officer or person until near two years afterwards. It is now insisted that the street commissioner was the proper officer to do it, and not the supervisor, or at least that he should fix its lines.

¶3The authority and the duty to open the road is not disputed, and we must not be critical in relation to the particular borough functionary that ought to do it. No ordinance assigns this duty to any one officer, and we cannot supply this defect. If the superiors of an officer do not dispute his acts at or about the time of their performance, we must treat them as valid. The name of the office supervisor helps us in this. Without a special definition of it, we must receive it according to its general definition., or common usage, and then we treat the supervisor as the proper authority to open roads under the order of the court. This road having been opened by him, we presume-that he was the proper officer to do it, unless the contrary be shown, and this throws all the burden of proof on the defendant below.

¶4It seems to us that the case was well tried in all respects.

¶5Judgment affirmed.

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