
    Woodward v. County of Fayette, Appellant.
    
      Roads—Opening roads — Townships — Townships of the second class—Damage to property owner—Liability of county—Act of June IS, 18S6, P. L. 551—Act of May 28,19IS, P. L. S68.
    
    1. Where a road is laid out and opened in a township of the second class on petition of taxpayers in proceedings under the Act of June 13, 1836, P. L. S51, and its supplements, the county and not the township is liable for damages done to property through which the road passes.
    2. In such case the Act of May 28, 1913, P. L. 368, relating to the assessment of damages for the opening of township and county roads does not apply.
    Argued May 7, 1917.
    Appeal, No. 135, Jan. T., 1917, by defendant, from judgment of C. P. Fayette Co., June T., 1915, No. 115, on verdict for plaintiff in case of E. F. Woodward v. County of Fayette.
    Before Bbown, C. J., Mestrezat, Stewart, Frazer and Walling, JJ.
    Affirmed.
    Framed issue to determine damages due plaintiff for opening of township road through the land of plaintiff.
    The facts appear in the following opinion by Rep-pert, J.:
    November 10, 1914, on petition of certain of the residents and taxpayers of Dunbar Township, viewers were appointed to lay out a public road between certain designated points in said township, and to vacate two roads which would be rendered useless by the recommending the opening and laying out of the road described in the certified copy of the record at No. 2, September Sessions, 1914/ Road Docket, filed in this case. The proceedings were under the provisions of the Act of June 13,1836, P. L. 551, and its supplements. As laid out and opened, the road passed through the lands of the plaintiff. The viewers assessed damages in his favor against the defendant. The amount being unsatisfactory Woodward appealed and an issue was framed in wbicb he was plaintiff and tbe county defendant. Tbe trial of tbe case at tbe above number and term resulted in a verdict in bis favor October 17,1916, for tbe sum of $1,900.00, subject to tbe question of law reserved by tbe court whether tbe defendant is liable for tbe damages suffered by tbe plaintiff resulting from tbe laying out and opening of tbe road. The matter is now before us on a motion for judgment for tbe defendant non obstante veredicto, tbe following reasons being assigned in support thereof:
    1. Fayette County is not liable for tbe opening or vacating of a township road.
    2. Tbe Act of June 13,1836, P. L. 551, and its supple-. ments, wbicb provides that tbe damages for tbe opening and vacation of township roads shall be paid by tbe county, is repealed by tbe Act of May 28,1913, P. L. 368.
    Briefly, and so far as contended to be applicable to tbe facts of this case, tbe Act of 1913 provides in Section 1 that tbe right to damages against counties and township is given to all owners of land, through wbicb pass roads, injured by laying out and opening said roads by said counties or townships; and Section 2 makes it tbe duty of juries of view “appointed or which shall hereafter be appointed under existing laws for assessing damages ......for taking......lands,” to assess tbe damages provided for in Section 1 against said counties or townships. So far as this act relates to damages for taking land for roads it simply means that when a township appropriates land for laying out a road, as a township of tbe first class may do, tbe landowner if be is injured has a right to damages against tbe township, and tbe damages must be assessed against tbe township; when tbe county lays out tbe road, the landowner has a right to damages against tbe county and tbe damages must be assessed against tbe county.
    Dunbar Township is a township of tbe second class. It has no authority to appropriate land for laying out roads. It did not lay out the road in question. The road was laid out by the county authorities by due process of law. After the land was appropriated and the road laid out, it then became the duty of the township supervisors to open the road and keep it in repair for the use of the public. But in opening the road they acted not of their own motion but by the direction and order of the same authority that appropriated the land and laid out the road, and in obeying the order they are also protected by the same authority. The plaintiff had been deprived of his title and right of possession in the land so far as title and possession were required for the public use, and his damages had accrued, before the duties of the township began: Wagner v. Salzburg Township, 132 Pa. 636.
    The county laid out the road, the plaintiff has a right to the damages he sustained thereby against the county, and the damages were properly assessed against the county. A more elaborate discussion of this same question, reaching the same conclusion, may be found in the opinion of Judge Hassles in Road in Fulton Township, 31 Lane. Law Rev. 134.
    Verdict for plaintiff for $1,900, and judgment thereon. Defendant appealed.
    
      Error assigned
    
    was in overruling motion for judgment for defendant n. o. v.
    
      Linn V. Phillips, County Solicitor, for appellant.
    
      D. W. Henderson, for appellee.
    May 22, 1917:
   Per Curiam,

The judgment in this case is affirmed on the opinion of the court below directing it to be entered on the verdict.  