
    Seiple’s Private Road.
    
      Road law — Appointment of re-reviewers of private road while exceptions to report of reviewers were pending■ — Change of terminus.
    
    Where the petition and order for re-reviewers of a proposed private road fixed a terminus in a public road 3800 feet from a fixed point, and the report of the re-reviewers showed they had laid out a road with said terminus 3968 feet from said point, exceptions to the report will be sustained.
    Exceptions to report of re-reviewers. Q. S. York Co., Jan. Sess., 1925, No. 6.
    
      Samuel Kurtz, for exceptions; Spencer D. Wareheim, contra.
    April 16, 1926.
   Niles, P. J.,

The present matter is one of a series of steps in a protracted dispute regarding a private road.

Without reciting the history of the litigation, the particular questions argued by counsel for the parties will be considered.

The record shows that: Feb. 13, 1922, to No. 3, January Sessions, 1922, upon petition of Daniel Seiple, the court appointed John W. Heller, Amos E. Reiker and William F. Fry viewers to report at the next term of court, which began April 17, 1922. April 18, 19'22, a report favorable to the road was filed, signed by two of the viewers, J. W. Heller and Amos E. Reiker. Aug. 22, 1922, exceptions were filed on behalf of John Miller, which were dismissed Jan. 7, 1924. April 21, 1924, No. 2, April Sessions, 1924, upon petition of John Miller, the court appointed John J. Bollinger, William F. Fry and Herbert Smyser as reviewers. Oct. 27, 1924, the reviewers reported that there is no occasion for such private road. Jan. 7, 1925, exceptions on behalf of Daniel Seiple were filed to this report of the reviewers. On the same day a petition was filed on behalf of Daniel Seiple for appointment of re-reviewers to No. 6, January Sessions, 1925. March 16, 1925, the exceptions to the report of the reviewers were dismissed and the report adverse to the road confirmed absolutely. Aug. 31, 1925, the report of John W. Heller and John D. Jenkins, two of the re-reviewers, who had been appointed Jan. 7, 1925, in favor of the road, was filed. Oct. 22, 1925, exceptions on behalf of John Miller were filed to the report of the re-reviewers, which are the ones now under consideration.

The first and second exceptions attack the report on the ground that, because at the same time that these re-reviewers were appointed, Jan. 7, 1925, exceptions to the previous report of the reviewers were filed and were undisposed of, which exceptions were dismissed, and the report of the reviewers against the road was confirmed absolutely March 16, 1925.

The argument is that the appointment of the re-reviewers on Jan. 7, 1925, was irregularly made before the exceptions to the previous proceedings had been disposed of, and that the subsequent dismissal of the exceptions to the report of the reviewers, and the confirmation of the report against the road, was in effect a refusal of the petition for a re-review, and made any subsequent action of the re-reviewers of no effect.

This contention seems reasonable and is supported by the cases cited by counsel for the exceptant: Hellertown Road, 5 W. & S. 202-204; Greenwood Township Road, 27 Pa. Superior Ct. 549-551.

The third exception is to the variance between the order and the report of the re-reviewers.

The petition and order of re-review specifies a terminus at a point 3800 feet distant from the intersection of Vinegar Ferry Road with the public road leading from York to Kreutz Creek Church, whereas the road reported by the re-reviewers ends at a point 3968 feet distant from that intersection.

This variance is so substantial as to compel the sustaining of this objection.

For the viewers to go beyond the termini fixed by the order is to exceed their authority. If they can go beyond one terminus, they may disregard the other. If they can extend the view to a different outlet, the project presented by the petition and approved by the court may be wholly lost sight of: Road in Lower Merion, 58 Pa. 66.

The 4th and 5th exceptions do not seem to be substantial.

The 6th exception, that the proceedings in this case are irregular and illegal and should be set aside, is sustained. Two reports in favor of the road were signed by only two of the three viewers appointed.

The report in No. 2, April Sessions, 1924, was concurred in by all of the viewers. This is of some weight, in addition to the other considerations moving the court to adopt the report adverse to the road.

And now, to wit, April 16,1926, the first, second, third and sixth exceptions filed are sustained, and the proceedings under the appointment of re-reviewers Jan. 7, 1925, No. 6, January Sessions, 1925, are set aside; and the report of the reviewers in No. 2, April Sessions, 1924, filed Oct. 27, 1924, and confirmed absolutely March 16, 1925, is adopted and confirmed.

From Richard E. Cochran, York, Pa.  