#### Bern and Penn Township Road.

In road proceedings, while exceptions were pending to a report of re-reviewers laying out a road estimated to cost $2,000, a citizen, one of the petitioners for the road, came forward and offered to enter security to open the road at a cost not to exceed $400. The court thereupon ordered the bond to be filed, and dismissed the exceptions. Held, on certiorari, that the proceedings should be affirmed.

March 6, 1889.

Certiorari, No. 295, Jan. T. 1889, to Q. S. Berks Co., to review an order dismissing exceptions to the report of re-reviewers on a road in Bern and Penn Townships, at Jan. Sessions, 1886, No. 1. Green and Clark, JJ., absent.

The facts appear in the opinion of the court below, by Hagenman, P. J:

“ Some sixteen exceptions were filed to the report by three land owners through whose land the proposed road is laid out. They embrace only four grounds which require notice.

“ 1. A variance in the beginning and ending of the road as laid out by the re-review as set forth in the original petition.

“The petition sets forth the beginning ‘to lead from a point in a line between lands of Amendon Bright and Abraham Becker, about midway between their farmhouses, in the township of Bern, in a public road leading from Leesport to the public road leading from Bernville to Reading.’ The report says beginning ‘ from a point in line between lands of Amendon Bright and Abraham Becker, about midway between their farmhouses, in the township of Bern, in the public road leading from Bernville to Reading.’ The ending in the petition reads ‘ to a point in the public road leading from Garfield to the aforesaid public road leading from Bernville to Reading, at or near the dwelling of Rufus Davis, in the township of Penn.’ The report says, ending ‘ in the public road leading Jrom Garfield to the aforesaid public road from Bernville to Reading, near the dwelling house of Rufus Davis.’ It will be observed that the report of the re-reviewers is not'open to the objections alleged in the exceptions.

“ 2. That the proposed road is not necessary for the accommodation of the public. The first petition was largely signed and the petition for the re-review by some two hundred citizens. The depositions of a number of the best citizens of the two townships speak of its public necessity. The road runs through a thickly settled neighborhood with no public road accommodations. In *106winter the cildren going to school must in many places go through the fields. Two sets of views have reported in favor of the road. Its public necessity is apparent.

“ 3. The damages allowed to the estate of Rufus Davis, dec’d, to Amendon Bright and to Abraham Becker are inadequate. The amount reported by the viewers and the re-reviewers to each of the exceptants, are substantially the same. Whilst the depositions name a larger sum, yet the difference is not such as would justify the court in setting aside the report.

“4. That the cost of construction of the proposed road will be too burdensome for the townships, the same being estimated at $2,000. This is a very large sum and probably more than should be imposed on the taxpayers of the townships. But, in answer to this allegation, Morris Keen, who is represented as a responsible person, says that he will obligate himself to construct the road for $250, and that he will make it as good as any of the other roads in the township. This proposition is not in such form as will hold Mr. Keen to his offer, but if he will file a bond in the sum of five hundred dollars, with the clerk of the quarter sessions, with one or more sureties to be approved by the court, conditioned that he will construct said road for the sum of four hundred dollars, as proposed in his depositions, the exceptions will be dismissed and the report will be confirmed. The supervisors of the said two townships are not obliged to give the construction of the road to Mr. Keen, but if they prefer to do it themselves, they can do so.”

Other exceptions alleged a payment of more money to the viewers than they were by law entitled to for their services, — over $20, by the petitioner, Morris Keen, on May 27, 1887, the only day they were employed, as their report shows; whereas they were entitled to only $13.40.

The court subsequently made the following final order:

“ And now, January 8th, 1889, Morris R. Keen, having filed a bond in the sum of five hundred dollars, with sureties approved of by the court, in the above stated matter, in accordance with the opinion filed therein by the court December 31st, 1888, whereupon the exceptions to the report of re-reviewers are hereby dismissed, and the said report is hereby confirmed; and the clerk of the quarter sessions is hereby ordered and directed to issue an order for the opening of sa¡4 road to the supervisors of,said townships respectively, in accordance with the Acts of Assembly in such case made and provided.”

The bond was in the name of the Commonwealth, for the use of the townships, or either of them, and continued as follows:

“ Whereas, at the instance of divers citizens of the townships of Bern and Penn, county aforesaid, certain proceedings to lay out a public road in the townships aforesaid, were duly had and entered of record in said court as of No. 1, January Sessions, 1886, and

“ Whereas, the said Morris R. Keen, in his deposition filed of *107record in said proceedings, proposed to open and construct said proposed road at a cost to said township not exceeding two hundred and fifty dollars, &c., and

“ Whereas, the said court, in opinion filed in said proceedings on the 31st day of December, 1888, directed that, upon the filing of a bond by the said Morris R. Keen in the sum of five hundred dollars, with the clerk of the quarter sessions, with one or more sureties to be approved by the court, conditioned that he will construct said road for the sum of four hundred dollars as proposed in his depositions, the exceptions will be dismissed and the report will be confirmed.

“ Now, the condition of this obligation is such: That if the said Morris R. Keen (upon being permitted by the supervisors of the said two townships) shall construct said proposed road as described and laid out in said report, at a cost not exceeding the sum of four hundred dollars, to said townships, in the manner as proposed in his deposition, and in accordance with the opinion of the said court, as aforesaid, and the Acts of Assembly in relation thereto, then this obligation to be null and void, otherwise to remain in full force and virtue.”

*The assignments of error*specified that the court erred, 1, in finding that “ It will be observed that the report of the reviewers is not open to the objections alleged in the exceptions,” that the road laid out in its termini does not correspond with the termini set out in the road petition whereon the re-reviewers were appointed; 2, in deciding “ Its public necessity is apparent,” when the depositions show it is mainly for two farms and the school children of one only; 3, in disregarding the depositions, as to the inadequacy of damages allowed to the land owners; 4, in filing an opinion holding out a bid to Morris Keen, principal petitioner, conditioned to file a bond “ when exceptions will be dismissed and the report confirmed;” 5, in ordering the bond of Morris Keen to be filed and marking the same “ approved by the court; ” 6, after opinion filed, to accept such bond, and then to dismiss exceptions and confirm the road, on that condition ; 7, the court have no power to do more than to confirm or refuse a road unconditionally; 8, the court erred in not considering the exceptions as to the payment of an exorbitant amount of money, more than the fee bill allows to viewers.

*A. S. Sassaman,*with him /. *C. Becker,*for plaintiff in error.—

A report of viewers laying out a public road must describe the termini with sufficient precision to enable the supervisors to locate it. Bean’s Road, 35 Pa. 280. The termini of a projected road are its designation and only means of identification. If the viewers do not describe the termini in their report, it is fatal. The court and reviewers cannot change them. Lower Merion Road, 5 8 Pa. 66,67, 68; Byberry Road, 6 Phila. 384.

In the present case, the land owners, Becker, Bright and the *108Rufus Davis people, most positively swear that they will have no use for this road. It would only serve specially for Keen and Dundore. Is this case not an infringement upon the spirit of Art. x, § io, last clause, of the constitution, not being within the powers delegated by the people to the legislature? Pittsburg *v.*Scott, I Pa. 309 ; Lamberton *v.*Hogan, 2 Pa. 24 ; Palairet’s Ap., 67 Pa. 479.

March 18, 1889.

Courts have no power to make a conditional order of confirmation in a road case under our general road law. Lathrop Road, 84 Pa. 126; O’Hara Road, 87 Pa. 356; Benzinger Road, 19 W. N. C. 276-7. The power of the court is defined in the Act of June 13, 1836, § 4, Purd. 1497, pi. 4.

*Henry C. G. Reber,*with him *Amos B. Wanner & Son,*for defendants in error.

The first assignment receives no support from the record. The termini were sufficiently described. South Abington Road, 109 Pa. 118; Sterrett Road, 1x4 Pa., 633; Springfield Road, 73 Pa. 127 ; Clark *v.*Town of Middlebury, 47 Ct. 334.

On certiorari, the supreme court will not consider the evidence dehors the record. Duff’s Road, 66 Pa. 459 ; Schuylkill Falls Road, 2 Binn. 255 ; Shenango Twp. *v.*Wayne Twp., 34 Pa. 187; Church Street, 54 Pa. 353 ; Kirk’s Ap.. 28 Pa. 185 ; Spring Garden Road, 43 Pa. 144 ; Union Canal Co. *v.*Keiser, 19 Pa. 137 ; Mauch Chunk *v.*Nescopeck, 21 Pa. 46; Bradford- *Twp.■ v.*Goshen Twp., 57 Pa. 495 ; Derry *v.*Brown, 13 Pa. 389 ; Plunkett’s Creek Twp. *v.*Fairfield Twp., 58 Pa. 209; McCandless Road, no Pa. 606; Kensington, etc., Turnpike Co., 97 Pa. 269.

The court below could properly infer the general necessity for the road from the reports. Second Street, 23 Pa. 347; Norriton Road, 4 Pa. 337.

It is not claimed that the court has any power to compel the township authorities to accept this bond. The bond is a piece of evidence upon the question of cost, a collateral matter, and after the finding by the court, in its opinion, that the objections made by the plaintiffs were not well founded, and that the road was necessary, it is immaterial what weight the court below attached to it; it is not the subject of review on certiorari.

The confirmation in this case was absolute and not conditional. The plaintiffs’ cases do not apply. They all go upon the mere fact that the effect of the decree of confirmation, its execution, and the issuing of the order to open the road, depended upon the performance of a future condition. Our case is more analogous to Wharton St., 48 Pa. 488.

If the final decree is in part erroneous, it may be corrected in this court. Danville, Hazleton and Wilkes-Barre R. R. Co’s Ap., 81* Pa. 330.

Per Curiam,

The first assignment of error is not sustained by the record. The report of the re-reviewers locates the road, as to its termini, substantially in the language of the *109order. As we cannot look outside of the record, upon a writ of certiorari, a large amount of extraneous matter might well have been omitted from the paper-book of plaintiff in error. Most of the other assignments are to matters dehors the record, and cannot be considered.

The taking of the bond referred to in the fifth assignment is certainly an unusual proceeding, but we are at a loss to see how any one can be injured by it. A court might well hesitate to confirm a report where the cost of opening the road would be excessive and disproportioned to the means of the township. The cost of opening this road was estimated at $2,000. Mr. Keen came forward and offered to give security to open the road, if permitted by the supervisors, at a cost not to exceed $400. Surely no one has cause to complain of this, least of all the tax-payers of the township.

The proceedings are affirmed.