Commonwealth v. Plymouth Township

Opinion by Beaver, J.,

When this ease was before us previously ( 13 Pa. Superior Ct. 209 ) we decided that the order of the court fixing the width thereof in the final order to open having been made under the Act of April 6, 1802, 3 Sm. L. 512, instead of under the Act of June 13, 1836, P. L. 551, “ The proceedings when had were in all respects regular under the law as then in force and, as a consequence, the public were entitled to use a road fifty feet wide, if it was so opened by the supervisors.” The question on the retrial, therefore, was, was the road so opened by the supervisors, and, if so, where? In Com. v. Jackson, 10 Pa. Superior Ct. 524 , we held, following numerous decisions therein cited, that the road, as opened by the supervisors in pursuance of the view and not that returned by the viewers, constituted the public *411 road and was to govern in determining whether or not a fence complained of as an obstruction was within its limits. The court below, in its general charge, very clearly and correctly stated the law in this behalf: “ The road, as fixed by the court, is, so far as designation of it on paper is concerned, twenty-five feet on each side of the center line of the road as returned by the viewei’s. The actual highway, however, is twenty-five feet on each side of the center of the road, as actually located upon the ground by the supervisors, in pursuance of the order of the court. If there is any conflict between the center line, as located by the supervisors and the center line as returnd by the viewers, the line as located by the supervisors upon the ground would govern. The highway then would be the strip of land lying twenty-five feet on each side of the center line, as so located on the ground by the supervisors.” This is the equivalent of the affirmance of the defendant’s first point which is assigned for error.

The remaining specifications of error relate to the answer's of the court to the commonwealth’s points. The proposition contained in the commonwealth’s second point, “ Where a road passes between fences or other lines well defined and long established, the space between these lines, unless the contrary be shown, will constitute the road,” is incorrect and could not have been properly answered affirmatively. It begs the very question involved and would have limited the road in the present case to the space between Harvey’s fence on the one side and that of the defendant on the other and is directly contrary to the general proposition laid down by the court and to all authority upon the subject. '

All the remaining points of the commonwealth were based upon the assumption that the so-called Harvey fence on the westerly side of the road constituted the boundaiy of the road on that side, but this was strenuously denied and the testimony of at least six witnesses was directly to the contrary. None of these points could have been answered in the affirmative, without calling the special attention of the jury to the fact that the facts assumed were disputed and constituted the main contention in the case, coupled with a restatement of the law, as laid down in the general charge. There was no error, therefore,'in refusing to answer these points affirmatively.

*412 The only question in the case was one of fact, namely, where was the road as originally opened by the supervisors ? As to this there was conflicting testimony. It was submitted to the jury under proper instructions, as we have shown, and with the verdict we cannot interfere.

Judgment affirmed.