
    In re Opening of Munday Lane.
    
      Dewalt & Heydt and Edwin K. Kline, for exceptant.
    
      Oliver W. Frey, for township.
    Dec. 24, 1928.
   Reno, P. J.,

The Township of Whitehall, a township of the first class, has enacted the opening of Munday Lane. The exceptant is the Hillside Cemetery Association, and it alleges that the proposed road will, in violation of the General Township Act (July 14, 1917, § 496, P. L. 840), pass through its burial-ground or cemetery. The township, in its answer, “alleges . . . that the land of the exceptant, through which the proposed road passes, is not now, nor has it at any time been, used as a cemetery or a burial-ground.”

Thus, at the outset, we are confronted with an issue of fact which, in the nature of things, must be decided before an opinion upon the law can be formulated. For the right of the corporation “to the protection of the land for burial purposes . . . should date from the time” it actually declares the “intention to use it for such a purpose, and not from the inception of title to the land. . . . That act will not apply to this land until it was in fact a cemetery or graveyard:” United Brethern Congregation v. Emaus Borough, 56 Pa. Superior Ct. 136, 145. Hence, there must be brought upon the record proof that the land is in fact a cemetery and not merely that it is held by a cemetery company.

The General Township Act makes no provision for bringing the evidence upon the record by way of depositions when exceptions have been filed. But in analogous proceedings, evidence in support of exceptions has been received by depositions (Neeld’s Road, 1 Pa. 353); or testimony received thereon by the court itself (Franconia Township Road, 78 Pa. 316); and a noted authority holds that when exceptions are founded upon a matter of fact, they must be supported by evidence in the form of depositions or otherwise, or they will be dismissed: Vide Trickett on Boroughs, 572. Indeed, under the Act of June 7, 1901, P. L. 510, section 1, which was practically re-enacted by the General Township Act, facts necessary for a decision upon exceptions were brought upon the record by exceptions: Old Lancaster Road, 17 Dist. R. 1076.

Now, Dec. 24, 1928, exceptants are granted leave to take and file depositions within thirty days from date. From Edwin L. Kohler, Allentown, Pa.  