
    Mifflin against The Commissioners and Inhabitants of Southwark.
    
    
      Monday, March 22.
    Under the 6th and 7th sections of the act of 29th September, 1787, a writ of inquiry of damages is not to issue until after the order to open the road is given.
    Such an order cannot be presumed, unless after a great length of time, and in a case strengthened by other circumstances.
    THIS was an action orought by Ann Miffin against the commissioners and inhabitants of the district of Southwark, to recover the damages assessed for laying out Washington street, in the said district, in pursuance, as the plaintiff alleged, of the 6th and 7th section of the act of 29th September, I787. It was tried before Duncan J. at the Nisi Prius 
      in January last, and the plaintiff proved, that she was the owner of a lot through which Washington street passed, and that the commissioners had made a plan of the new streets, which was laid before the supreme executive council, who confirmed it on the 22d January, 1790, and ordered it to be , , _ - r • , . , . recorded. No order ior opening Washington street under the 6th section, could be found among the records of the supreme executive council. She then gave in evidence proceedings in 1804, under the 7th section, to assess the damages which she would sustain by the laying out of the said street, and that they were assessed at 823 dollars. Governor M‘Kean, on the 11th June, 1804, made an order on the supervisors or superintendant, to pay the money, and to stay the opening of the road until it was paid.
    Judge Duncan being of opinion, that the plaintiff was not entitled to recover, a nonsuit was agreed to be entered, with leave to take it off, if the Court in bank should be of opinion, either that there was no occasion for an order for opening the street, or that evidence had been given, from which the jury should presume, that the street had been ordered to be opened by a proceeding under the 6th section.
    Drinker, for the plaintiff,
    moved to take off the nonsuit, and contended, that proceedings might properly take place under the 7th section, before there were any proceedings under the 6th section ; because all the plaintiff’s interest in her land was divested as soon as the plan was confirmed ; and private property cannot be taken for public use, without an act of the legislature, in which a compensation of adequate value is provided. 1 Black. 128, 9. He also contended, that enough had been shewn to prove, that proceedings had taken place under the 6th section, though they could not be found, and cited 1 Phil. Ev. 111. Cowp. 109. Finch. 399, to shew, that even a record may be presumed by the jury. It was not to be supposed that Governor M‘Kean would have given such an order, unless the previous requisites of the act had been complied with.
    
      Delany, contra,
    was stopped by the Court.
    
      
       2 Smith’s Laws, 436. These sections are as follow:-
      Sect. VI. And whereas, the public convenience will be for the present answered, by the certain knowledge where, and in what manner, such streets, lanes, alleys, and roads, will in future run, but it will not be necessary immediately to lay them all open. In order, therefore, to provide for the opening of the same from time to time, as the increasing improvements shall require, Be it hereby farther enacted, &c. that upon the petition of any number of freeholders, not less than seven, whose lands lie near or adjoining to such streets, lanes, alleys, or roads, to open any one or more of the said streets, lanes, alleys, or roads, it shall and may be lawful to and for the supreme executive council, after bearing the petitioners, and such other freeholders through whose land such road or street shall pass, as shall offer objections thereto, to determine whether it he proper at the time to open such street or road; and if they shall be of opinion, that the state of improvement in the neighbourhood thereof shall require it, they shall issue their warrant, under the hand of the president or vice-president, and the less seal of the state, directed to the supervisors of the streets or highways within the district or township through which the same is to pass, requiring and enjoining them to open such street or road, and to cause the same to be put in order, and kept in repair, in the same manner as other streets or roads within the same district or township are by law to be opened, repaired, and maintained.
      Sect. VIL Jlnd be it further enacted, £s?c. That if the owner or owners of any of the grounds through and over which any of the streets, lanes, alleys, or roads, so to be opened, shall pass, shall so require, the supreme executive council of this commonwealth shall issue their precept, under the hand of the president or vice-president, and the less seal of the state, to the sheriff of the county of Philadelphia directed, in the nature of a writ of inquiry, commanding him, that by the oaths or affirmations of twelve good and lawful men of his bailiwick, not having any real estate in the said district, or townships, he shall inquire, what damages such owner or owners shall sustain, in his or their improvements, made before the laying out of such street, lane, alley, or road, so applied for to be opened ; and upon the return of such inquiry, the supreme executive council shall make an order, or orders, on the supervisor or supervisors of said district or township, in favour of the person or persons whose improvements shall be found to be injured, for such sum or sums as the said injuries shall be found to amount to, and shall direct the supervisors aforesaid, to stay the opening of such street, lane, alley, or road, until the said last men® tloned order be fully paid or satisfied.
    
   Per Curiam.

It was not the intention of this act of assembly that all the streets, &c. should be immediately opened. It is provided in the 6th section, that on the petition of not less than seven freeholders, the supreme executive coulncii might inquire into the propriety of opening any street, &c. and order the same to be done, if after hearing the petitioners and also those who were opposed to the opening, they should think it proper. And by the 7th section, if the owners of any ground through which the street, &c. so to be opened, shall pass, shall so require, the council shall issue their precept commanding the sheriff to summon a jury, to inquire what damages such owners will sustain in their improvements made, before the laying out of such street, &c. so applied for to be opened. Taking these two sections together then, the writ of inquiry is not to issue, until after the order to open has been given. But in this case no order to open was proved: The plaintiff therefore was not entitled to recover. As to the jury’s presuming such an order, there was not sufficient ground for it. No such presumption can arise, except after a great length of time, and in a case strengthened by other circumstances. The Court are of opinion, therefore, that the nonsuit should stand. Whether an action would lie against the commissioners in a case of this kind, even if all the proceedings had been regular, was a point not made on the trial of this cause, and therefore no opinion is now given on it.

Motion to take off the nonsuit denied.  