
    ROAD IN HILLTOWN AND BEDMINSTER.
    In laying out a new road, the viewers may adopt a portion of an established road.
    It is not necessary for the report to state, what notice was given to persons (through whoáe land the road is laid out.
    Where the report sets forth that the viewers were “duly sworn and affirmed,’’ it is .sufficient.
    Certiorari to the Court of Quarter Sessions, of Bucks County, No. 360, Jan. Term, 1884.
    On May 16th, 1883, a.petition for a road view, was filed, and viewers were appointed. On Sept. 12th, ’82, the report was filed, and confirmed Nisi. On Dee. 10th, ’83, Jacob Degel and- Ruben C. Kulp filed exceptions, among which were 3d., “that part of the proposed road, as reported by the viewers, is laid out on the bed of three old roads, opened for the public use, and travel in this county. 4th. exception. The record does not show that notice was given to the property owners, of the time and place of meeting of the viewers, for the ptfrpose of making such view, as Is required by law, and by the order issued out of this Court. 5th •exception is, that the report does not show that the viewers were sworn to perform their duties impartially, and according to the Best of their judgment, as required by the Act of Assembly.” On Feb. 4th, 1884, the Court dismissed the exceptions, affirmed the report in the following opinion per;
    Yerkes P. J.
    The first and second exceptions are not pressed. The town•ships, through which the road is laid out, are sufficiently named. The naming of them in the order, if gathered from the petition, ■cures any defect. (Wilson’s Farm Eoad, 1 Pearson,. 170.) If is not necessary to attach a copy of the published notice to the report.
    The road as laid out, in its course from the point of beginning to the Dublin and Elephant Hotel Eoad, intercepts and passes •over parts of three intermediate roads, already opened, and parallel to each other, and separated by private lands ; and after leaving one of them, extends over other private lands to a point intersecting another public road, over which it runs for some distance to the terminus.
    It is settled by authority that a new road may intersect one already laid out and opened, and be carried over the bed of it to 'the terminal point, named in the order. (Eoad from West Chester Eoad to Chester and Germantown Road, 2 R ,421; Hess’ Mill Road, 9 Harris, 217; Southampton Eoad, Ibid., 856.)
    
    But it was said in the argument that it has never been decided that the viewers can adopt a part of a public road already laid ■out and opened, and- lying anywhere between the terminus, except when connected with one of them.
    If there can be any doubt as to the right of viewers to do this, and it is earnestly contended by the exceptants that they cannot, the question should be settled, for if the position taken be correct viewers would sometimes be placed in an embarrassing position, in an effort to execute the order of the Court.
    It is said that, as a general rule, a road cannot be located upon another already laid out and opened. (Wilson’s Farm Eoad, 1 
      
      Pearson, 170 ; Reserve Township Road, SO P. F. S., 166 ; in re road in Springdale township, 10 Norris, 260.) ■ So far as the two cases last named are concerned, the points decided by them lead in the opposite direction, and the remarks as to this point were but dicta, or rather concessions of a point immaterial to the cases under consideration, and erroneously assumed as having been decided in the West Chester Road Case, 2 Bawle, 1$2. The only case cited that seems to hold this doctrine explicitly is the Wilson farm case, 1 Pears., 170. It is there said that a public road cannot be laid out on top of another, which has been established by prescription, but a careful reading of Judge Pearson’s opinion indicates that the road sought to be laid out, for its whole length, was on another road. He says the petition asks for the laying out of a road on one used and occupied by the travelling public for nearly fifty years. If such is the road to be traversed by the viewers, we have no authority to lay out one on top of it. It is, to all legal intents, as much a public road as it ever can be. If the road thus used is established by prescription, it is as good as if laid out by order. This clearly refers to the road as an entirety, and it was very properly ruled that what the public already enjoyed by prescription, the Court would not permit them to be invested with, in a mock proceeding, for the possible purpose of securing damages to landholders. It might unsettle the stability of all roads established by prescription, and open the door for a rich harvest of damages and costs. It has also been held that a private road cannot be laid out over a part of a public road with which it interferes. (Neeld’s Road, 1 Barr, S5S; Boyer’s Road, 1 IYr., 257.) The reason for this is obvious.
    It is a very different thing to say that, when viewers find occasion for a public road, they are not to adopt and pass over the bed of a part of another public road most convenient for their purposes, and which their route intercepts, but that they must cross it at right angles, though by doing so they cannot “follow the shortest distance,” occupy “the best ground,” and cause the least injury to private property. If this be the law, in many instances it will necessitate a multiplicity of road proceedings, for no good reason, and contrary to all laws of common sense.
    
      If the Supreme Court has not directly decided this point, it is very possible it was never raised before them. In ruling the question of the right to intersect and run along a public road to a terminus, over which there might be some doubt, founded upon good reasons, they have indicated that the bed of an interme-'diate road may be adopted and traversed, part way, by the viewers. In the West Chester Road case, # B., 1$1¡ they say “to reconfirm a part of a road already laid out and opened, “may be unnecessary, but what harm will it do ? I can imagine “none. To say that viewers shall not adopt any part of a road “already laid out, further than to cross it, would be intolerably “mischievous, where the only practicable route, for a part of the “way, should be through the gap of a mountain already occupied. “The confirmation of this part of the road, then, can have no “other than a beneficial effect, to enable the viewers to reach a “point proposed, in the way least burdensome to the public, and at'the same time consistently with the letter of their authority.” The dicta in the . cases reported in SO P. F. S., and 10 Norris, Supra, are on the authority of this case, but mistakenly so. In Hess’ Mill Road case, Judge Black said: “If it was' more-“advantageous to the public that the vacated road should be . “supplied in part by another already laid out, the viewers, were . “right in adopting it. ■ If. the best route between the points laid “down in the order was along the courses previously chosen for “another public road, they were surely not bound to avoid it, at “the cost of more money to the township and greater loss to the “land owners.”
    We think, and decide, that the viewers did not exceed their powers in running their road over parts of the old roads.
    The fourth exception is, that “the record does not show “that ■ “notice was given to the property owners, as required by law, . “and the order issued out of the Court.” The report states that notice of the time and place of meeting was given by advertisement for three successive weeks, in two newspapers. The order issued by the clerk also directs that “not less than five days’ “notice shall be given to the owners or occupants of the land “over which the said road is proposed to be laid.” And, it is contended, this notice is required by law and the rules of Court of Bucks county. The general road law does not prescribe such notice. In Neeld’s Road, 1 Barr, 353, it was said that notice to the owner was absolutely necessary before taking his property and assessing the damages ; to the same effect is Boyer’s Appeal, 1 Wr., 257, but in Workman vs. Mifflin 6 Casey, 370, Judge Strong said that the owner of land, taken for a public highway, is entitled to compensation only as a thing of grace, not of right. T-Tis right to notice would seem to stand upon about the same footing — when the statute gives him damages he should have notice of the view and their assessment. Of the cases cited by counsel, in the Lancaster Road case, 18 P. F. S., 362, was one where notice was directed by special act. In New Jersey Cen. R. R. App., 102 Pa., 39i¡ a rule of Court required notice, and the decision also turned upon the fact that no damages were assessed ^ and no releases were returned, as required. In the case of the road from Susquehanna river to Linglestown, 1 Pearson 59, a rule of Court required notice, but the Judge says, “the owner had notice; he was present, which is all that is required.” In this case the exceptants- merely allege that it does not appear by the report that five days’ notice was served; they do not claim that they were not notified. The objection is purely technical. In the Springdale Township Road case, 10 Norris, 264, the same allegation was made. The report was that “they met pursuant to “legal notice.” The Court said “this was sufficient in the absence “of an allegation by any property holder that he had not received “notice. The question of notice is one of fact.”
    If these cases establish the right to notice, of what character must it be in the case in hand ? I have copies of rules of Court upon the subject of roads, published at four different periods — . 1838,1852, 1857 and 1873 ; the last named being our present rules, and I find that sections 1, 2, 3, 5, of our present rules are alike in the rules of 1838, 1852 and 1873, with the exceptions that in the rules of 1852, to the third section is added the sentence, “and the names of all petitioners for or against the road and in the rules of 1838, the word “finally,” before failed, in section 5, does not occur. Section 4 is the same as in the rules of 1852, and the remaining five sections are taken verbatim from the rules of 1857, which were ordered adopted as the rules regulating the practice in road cases, under the special Act for Bucks county, of April 23d, 1857. The rules of 1838 contain nothing about notice to land owners, but in those adopted in 1852, Buie 6 provides as follows: “Not less than five days’ notice shall “be given to the owners or occupants of land on which any road “is proposed to be laid by viewers, reviewers, or further reviewers, “appointed by the Court, for that purpose, prior to the meeting “of said viewers, &c., of the time and place of the meeting.” No reference is made to this rule in the rules adopted in 1857, ■nor in the rules published in 1873. I do not distinctly remember the practice prior to 1873, though my impression is that the rules of 1852 and 1857 were both followed where not inconsistent. The provision of the Act of 1857, relative to notice, was a sufficient reason for dropping rule 6, which I think was intended in 1857. The rules of 1873 were intended to amend, codify, and where useless, repeal the rules of Court adopted prior to that date. This is proved by the readoption of section 3, of the 1852 ■rules, omitting the concluding sentence thereof, which provides for stating in the body of the petition for review the names of all petitioners for or against the report.
    The 6th section of the rules of 1852, in regard to notice to land owners, is not included; and that an effort was ■ made to have the practice in the clerk’s office conform to this action, is shown by the circumstance that it appears by an inspection of several orders issued soon after their adoption, (including those to view and review a road in Bedminster and Iiillton, offered in evidence,.as representing the same route as that under consideration,) that the part of the printed order directing such notice is erased. In one of these cases Mr. N. C. James, and in the other Mr. Alfred Fackenthall, Doth careful practitioners, represented ' the order. Section 2, the special Act of 185.7, P. Laws 297 provides for notice by advertisement; this would have repealed an inconsistent provision in the general law, and superseded any inconsistent rule of Court. It may be said rule 6-ds not inconsistent therewith; granted, but it became unnecessary. The provision for notice, and requiring the viewers ■ to endeavor to procure releases from land owners or to assess damages sustained, (-which was none in this case,) supplied the place of that rule, was far more effectual than the notices held to be sufficient in some of the cases referred to, and is better than the old rule, which, in thickly settled districts, might be difficult to carry out, since the viewers are given the latitude of adopting any course between, the termini. Hence there was good reason to abandon the old rule, which I find has had no existence, since 1873 at least. The ■insertion by the clerk of the direction to give five days’ notice was unnecessary^ because it is given by the advertisement. It was therefore improvidently inserted; the viewers properly disregarded it, and the petitioners were not hurt by their so doing»
    ; The last exception is, that the report does not show that the .viewers were properly .qualified. It says -they were “severally duly sworn and- affirmed.” This is sufficient. When the report-set forth that the viewer's were “severally sworn or affirmed,” it was held a good qualification. In re road, in East Donegal township, 9 Norris, 190, the word and is to be read - or. If they ‘were both sworn or affirmed, as reported, it would not affect the proceeding. A similar exception was held to be “too nice to prevail.”. (Case of. Greenleaf Court, J. Wharton, 514) The case uf Cambria Street, 25 P. F. S., 357, does not apply; it was in a. line of authorities which hold that when an Act of Assembly .prescribes a form of oath, and the record shows that form had been departed from in a'material part, the proceeding will be set .aside.
    This question is squarely ruled in the case in re road, in East. Donegal township, Supra.
    
    This disposes of all the exceptions.
    The exceptions filed are dismissed and the report confirmed.
    Whereupon Jacob Degel, through whose land the proposed road passes, sued out this certiorari, coAplaining of the action of the Court in dismissing the exceptions and affirming the report.,
    
      J. Monroe Shellenbeager and A. J. Fackenthall, Esqs., for the appellant
    argued: ■ The act of the 13th of June, 1836, P. L. 555, section one, providing for the appointment of road viewers, provides, that theyrshall view such ground, and if they shall agree that there is occasion.for a road, they shall proceed to lay out the same.” This provision shows that the Legislature only intended to provide for the laying out and .opening of the road, at the place, where none before existed. They also cited the .case of the West Chester Road, 2 R., 421; Reserve Township Road, 80 Penna., 165; Road in Springdale Township, 91 Penna. Rep., 260; Hess’ Mill Road, 21 Penna., 217; South Hampton Road, 21st Penna., 356. This Court has never allowed a jury to adopt an old road, and make it an intermediate part of a new one, as “this jury has done in two instances, viz: 1st. In adopting the Bethlehem road and 2nd. In adopting the .road leading from Dublin to Hagersville. “The greatest and what is probably the incurable defect is that the petition asks .for the laying out of the u-oad on one used and occupied by the travelling public for nearly 50 years. If such is the road to be traversed by the viewers, we have no authority to lay out one on top of it. It is to all legal intents as much a public road as it ever can be. The proceedings .are consequently irregular and must be set aside. Had our .attention been called to the form of the' petition, we would have .refused to appoint viewers;” Road from Wilson’s Farm, 1st Bearson, 170.
    
      H. A. Loyd, Esq., Contra.
    
   The Supreme Court affirmed the decision of the Court below, on May 26th, 1884, in the following opinion:

Per Curiam.

As the opinion of the learned judge of' the Court below fully, accurately and properly disposes of the questions raised in this ■case, we deem it unnecessary to add anything to that opinion.

The judgment is affirmed.  