#### Whiteley Road.

Under the Act of June 13, 1836, giving the court jurisdiction to change or vacate a road laid out, and the supplemental Act of May 3, 1855, where the road was opened in part, the court of quarter sessions has jurisdiction to lay out a new road to take the place of a road which has been previously laid out and opened in whole or in part.

A petition for the appointment of viewers, under the Act of June 13, 1836, and the supplement of May 3, 1S55, which avers that the road sought to be vacated was “laid out” and “located on such bad ground that it was almost impassable,” need not specifically aver that the road had been opened, or that it had been opened in part.

A report of roacl-viewers is not void for uncertainty because it designates the roads vacated only by reference to a draft attached to the report, on which the location of the roads vacated is indicated.

Oct. 3, 1888.

Certiorari, No. 100, Oct. T., 1888, to Q. S. Greene Co., to review an order dismissing exceptions to the report of viewers appointed to lay out a road in Whiteley township, at Jan. T., 1887, No. 4. Green, J., absent.

On Jan. 29, 1887, A. T. Shrever and other citizens of Whiteley township presented a petition in which they averred:

“ That a road has long since been laid out from a point on the road along the north fork of Big Whiteley creek, near the residence of Abner Bailey, in said township, to the village of Newtown, in said township. The record of which road can be found at No. 13 April Sessions, 1884.

“ That that part of said road that lies between a point near the residence of Abner Bailey and a point near the residence of Dennis White, in said township of Whiteley, is so steep and is located on such bad ground that it is almost impassable, and it is inconvenient and burdensome to the taxpayers and traveling public. That a good road of easy grade between a point near the residence of Abner Bailey and a point near the residence of Dennis White could be located to the great advantage of the taxpayers and the traveling public.

“ They therefore request your honors to appoint proper persons to view and lay out a road in said township of Whiteley, commencing at a point near the residence of Abner Bailey, and ending at a point near the residence of Dennis White,, in said township, and to vacate any and all roads made useless by the said new road, and to make report according to law.”

On the same day, the court appointed John Throckmorton, Thomas Hook and William Gordon, viewers.

On April 2, 1887, the viewers filed their report in which they set forth that, after being duly sworn according to law, they “ proceeded to view a site for a road from a point near the residence of Dennis White in Whiteley township, as called for in the order, and parts adjacent, and have laid out and do return for public use »a road between said points, as shown and more particularly described by the draft hereto attached, and which is made a part of the report, *195which road, as aforesaid laid out, we are of the opinion is necessary for a public road. And any and all roads made useless by the new location, and so indicated upon the draft, we have vacated.”

On April 9, 1887, Abner Bailey and Bowen Stephens, land owners, filed the following exceptions to the viewers’ report:

1. The court had no power or jurisdiction to make the order of Jan. 29, 1887, appointing John Throckmorton, Thomas Hook and William Gordon viewers to lay out a road as set forth in the petition, and to vacate any and all roads made useless by said new road:. 1, because the road at No. 13 April Sessions, 1884, was a road laid out on a petition to view, to vacate and supply an old road, and the said view did-vacate the old road from a point near Abner Bailey’s house to Dennis White’s and supplied the same with a new road: which said new road on Jan. 29, 1887, was partly opened at a cost of about $200.00, or upwards, and the road was in the same condition on March 23, 1887, when the present view was had, and is still so; and, 2, because the court had no power to vacate the road at No. 13 April Sessions, 1884, after the same had been confirmed and partly opened, upon the petition presented in this case.

2. The report of the viewers is void for uncertainty, because it does not state with sufficient certainty what roads or parts of roads are vacated.

On June 24, 1887, a petition for review was filed, and W. P. Kendall, John Clayton and Jonas Ely, were appointed reviewers, who reported that there was no occasion for the road as returned by the viewers. They further reported that, “ after due examination of the ground specified in the report of the viewers, at No. 13 April Sessions, 1884, between the points near the residence of Abner Bailey and Dennis White, being the same road which is already partly opened and on which considerable money and labor have been expended, we found it a much shorter distance and equally good or better ground, and equally good or better grade; that it will cost much less to make and open it for use, etc.”

On April 14, 1888, the court, without opinion filed, overruled the exceptions and confirmed the report of the viewers.

The record at No. 13, April T. 1884, shows the following entry: “And now, April 23, 1885, exit order to open to B. R. Stephens.”

*The assignments of error*specified the action of the court 1, in dismissing the first exception, in making the order of Jan. 29, 1887, appointing the viewers, and in confirming the report, quoting the exception, the petition, the report and the order of the court; 2, in overruling the second exception, and in making the order of April 14, 1888, quoting the exception and order; 3, in making the order of Jan. 29, 1887, appointing John Throckmorton, Thomas Hook and William Gordon, viewers to vacate the old road which had been vacated by the report at No. 13, April Sessions, 1884, and *196to vacate the road laid out by the view and confirmed at No. 13, April Sessions, 1884, while said road atNo. 13, April Sessions, 1884, was being opened and was partly opened at a cost of about *$200,*and upwards; and in confirming the report of the view at No. 4, January Sessions, 1887, made by John Throckmorton, Thomas Hook and William Gordon; 4, in entertaining the petition at No. 4, January Sessions, 1887, and in not dismissing the whole proceedings had thereon for want of jurisdiction; 5, in not confirming the report of the view made by William P. Kendall, John Clayton and Jonas Ely, being a ratification of the order of the court confirming the report, at No. 13, April Sessions, 1884.

*A. A. Purman*of *Purman & Ross,*for Bailey and Stephens, who sued out the writ.

The averments in the petition could not give the court jurisdiction under § 18 of the Act of June 13, 1836, for the road at No. 13, April S., 1884, was not open for travel, and therefore had not been found from use to be steep and on bad ground, or useless or burdensome.

Although the road at No. 13, April S., 1884, had not been opened for travel, the proceedings could not be supported under § 19 of the Act of 1836, because, x, the court had no power, under that section, to appoint viewers to lay out a road, or, 2, to appoint viewers to vacate, in this case, because the petition does not pretend to be signed by a majority of the original petitioners.

The proceedings are not authorized by the Act of May 3, 1855, because neither the petition nor the report sets forth that the road at No. 13, April S., 1884, was “ opened in part.”

Before the Act of May 3, 1855, where a part of a road had been fully opened for travel and actually used, there was no authority to vacate the unopened part, or any part of said road, even upon the application of a majority of the original petitioners (Greenwich Road, 11 Pa. 186; Road Case, 2 P. & W. 532); and, to remedy this evil, the Act of May 3, 1855, was passed. This enables us to understand what is meant by “ opened in part,” in the Act of 1855. It means that the road shall be made passable as a public road before it can be said to be opened in part. Commissioners’ Case, 1 Pears. 144; Huntington Road, 3 Kulp, 373.

The fact that the road at No. 13, April S., 1884, was not opened in part, when the petition in this case was presented, is shown by the report of the reviewers.

Besides, the petition must set forth all the facts necessary to give the court jurisdiction. Newville Road, 8 Watts, 172.

A petition to lay out a road and vacate such parts of other roads as it may supersede was held defective in not defining the part of the road desired to be vacated. Ross Road, 36 Pa. 87. See, also, Franklin Road, 1 Leg. Ch. 57,

The Act of 1855 authorizes the appointment of viewers “to *197change and vacate.” This does not give jurisdiction to lay out a new road. Vernon Road, 70 Pa. 23; Augusta Road, 17 Pa. 71.

*R. F. Downey,*for A. T. Shriver et al.

These proceedings were under the Act of 1836, as supplemented by the Act of 1855. The road at No. 13, April S., 1884, was a regularly laid-out road, was worked and was opened. These facts appear from the records in that case. That the road was opened, appears from the fact that an order issued April 23, 1885 ; and the report of the reviewers, in this case, recite it as a road partly opened. The petition in this case also sets forth that the road is located on bad ground, etc. This implies that the road was opened.

The Acts of 1836 and 1855 use the words “to change or vacate,” and this has been held to authorize the laying out of a road to supply the part vacated. Loretto Road, 29 Pa. 350; Hess’ Mill Road, 21 Pa. 219; Southampton Road, 21 Pa. 356.

Augusta Road, was a proceeding under § 19 of the Act of 1836, and, as that section gives only the power to vacate and annul, it is not applicable to this case. While the syllabus in Vernon Road seems to bear out the view of the other side, yet the syllabus is not supported by the decision. The road in that case had not been opened, and yet the petition asked for a new road.

Under § 18 of the Act of 1836, the road must have been opened or the proceedings will not lie. Greenwich Road, 11 Pa. 188; Madison and Harmony Road, 37 Pa. 418. This construction could only be put upon the Act by construing the words “ laid out ” as embracing not only the record of the laying out but also to include the actual opening. The petition here refers to the road as “ laid out; ” surely this court will give as broad a construction to these words when used in the petition as when used in the Act of Assembly.

In Loretto Road, Southampton Road and Hess’s Mill Road, under § 18 of the Act of 1836, the petitions do not state that the road was opened. If it is not necessary to state in a petition under § 18 of the Act of 1836 that the old road was wholly opened, for the same reason it would not be necessary to set forth, in a petition under the same section, as supplemented by the Act of 1855, that the old road had been opened in part.

The language of the petition as to the vacation of roads, admits of but one construction, and that is that all roads between Bailey’s and White’s, that are made useless by the new road, are to be vacated. In Ross Road, 37 Pa. 87, the court decides that even if there is a defect in the petition, the report of the viewers may help it out. The report of the viewers in this case does return a draft of the road they locate, giving courses and distances. They also designate, on the same draft, two other roads between the same points, which they designate as vacated. It is true, they do not give the courses and distances of these vacated roads. But the courses and *198distances of the road laid out being given, any practical man can readily ascertain the courses and distances of these vacated roads. They are matter of record and, by reference to such records, their courses and distances may there be found. *In*Jackson Roád, 9 Pa. 85, this court held that, where there was, open the records of the court, a draft of a road, to vacate which proceedings are commenced, a draft of the road thus vacated need not be returned by the viewers, although the order of the court directed it to be done. Here there is a draft of the road vacated marked with red lines, because that is the road laid out at No. 13, April S., 1884. The other road vacated, marked with black lines, is the original road laid out years ago, and that road has already been vacated by the proceedings at No. 13, April S., 1884. The report of the viewers show that these two roads vacated are located between the same points, and it is no error on the part of the viewers to return the old original road as vacated. Paradise Road, 29 Pa. 22. If it were already vacated, the return of these viewers would be regarded as surplusage, at most. In Chance-ford Road, 1 Del. Co. 432-, the description of the road to be vacated is much more indefinite than in the case at bar, yet there the vacation was sustained.

Oct. 29, 1888.

Per Curiam,

The proceedings in this case are affirmed.