
    CLAYTON’S CASE.
    The General Road Law of Jane 13, 1836, is repealed by the Act of February 11, 1854, in such counties as the latter act has been extended to.
    Personal notice of the time when the viewers meet to lay out a road, need not be given to the owners of the land.
    Certiorari to Court ot Quarter Sessions of Schuylkill County, 151 January Term, 1877.
    There were two cases of petitions for damages for .opening streets in Pottsville. The facts were similar, the rulings indentical and the Supreme Court delivered one opinion in both cases. The opinion of the Court below contains a statement of facts of the case and was delivered Oct. 2,1876, as follows by
    Walker, J.
    In the matter of the petition for the asseásment of damages sustained by John Clayton and George C. Potts, for opening á public road in the Northeast Ward of the Borough of Pottsville, on lands of said petitioners.
    John Clayton and George C. Potts presented their petition to the Court of Quarter Sessions on the 14th day of October, 1874, setting forth that they had sustained damages by reason of the opening of the public road through their lauds, and praying the Court to appoint a jury to assess said damages. The Court thereupon, on the same day, appointed a jury of three persons, who on the 30th day of November, 1874, made report and assessed the damage of said petitioners at $1,117, less $150 for Mrs. Steidles’ property, which said report was filed, and on the 4th of December, 1874, exceptions were filed to its confirmation, on the ground that the Court has no jurisdiction.
    This application is made under the seventh section of the Act 13 June, 1836, (Purdon’s Dig., 1273, PI. 7) called the General Road Law, which provides that the owner of any land through which a public road shall be opened, may within one year from the opening of the same apply by petition to the Court of Quarter Sessions of the proper county, setting forth the injury which he or she may have sustained thereby, and thereupon the Court shall appoint six disinterested persons to view the premises and assess the damages, if any, which such petitioner may have sustained.
    
      The Pottsville borough road record (48, 48 and 50) shows that on 21 June, 1869, the viewers were appointed to lay out this road that on 6th September, 1869, their report was confirmed nisi, and on the 13th December, 1869, it was confirmed absolutely, and the road ordered to be opened. When this was done does not appear.
    It is therefore contended that the petition is filed too late, for more than a year had elapsed since the opening of the road, even under the provisions of the general road law; and further it is contended that the petition must be presented not later than the third day of the next stated term after the term to which the report is returnable, by the Acts of 1854 and 1860.
    The proviso in the third section of the Act of 11th February, 1854, (P. Laws, 1854, p. 63) relative to the counties of Beaver, Butler and Lawrence enacts : That any persoD affected by such report, shall be entitled to a review of his damages upon presenting a petition therefor, not later than the third day of the next Btated term after the term to which the report is returnable. And the provisions of this act are extended to Schuylkill county by the Act of 6th March, 1860, (P. L. 105).
    These acts repeal the general law in this county, as to the number of viewers and the term when the petition of review should be presented to the Court.
    The number of viewers is changed from six to three, and the time is changed from one year to the third day of the next term.
    Personal notice need not be given to the owners of the land of the time when the viewers meet to lay out the road.
    I am of the opinion that the petition is presented too late. The exception is, therefore, sustained and the report set aside.
    The petition of Sarah Knowles of a like character with the the foregoing was denied for similar reasons.
    Clayton and Potts then took out a certiorari to the Supreme Court assigning as error the decision that the Court had no jurisdiction and setting aside the report, and it was argued by Hughes and JParquhar for them that the acts of February 11, 1854, P. Laws 62, and March 6, I860; P. Laws 105, do not repeal the seventh section of the Road Law, of June 13, 1836, P. Laws 556.
    That no notice was given to them, and notice by hand' bills only set out the termini, as was required by law; McConnell’s Mill Road, 8 Casey 285 ; Road in Lower Merion, 8 Sm. 66 ; and Clayton and Potts could not know that the road was located over their land.
    That if the decision is sustained, the plaintiffs in error would have their property taken from them without notice and without a chance to be heard. Private property can only be taken for public use by giving the owner compensation; Pittsburgh vs. Scott, 1 Barr 316; Commonwealth vs. Pittsburgh and Connellsville Railroad Co., 8 Smith 50.
    The remedy must be one to which the property owner can resort to of his own motion; Cooley’s Constitutional Limitations, * 561; Shepardson vs. Milwaukie and Belvit R. R. Co., 6 Wisconsin 605 ; Powers vs. Bears, 12 Wis. 220.
    On behalf of the County of Schuylkill, H. M. Darling and F. W. Bechtel, Esqs., argued,
    that if the act of 1836, section 7, was in force, this proceeding was void, because only three viewers had been appointed instead of six. That if it was not in force, petitioners were too late. That the act of 1836, Sect. 7 is repealed as to Schuylkill County. That the owner of land had no greater opportunity of receiving notice under the act of 1836, than under the later acts, and therefore the point as to the unconstitutionality of the latter was without force. Petitioners do not aver that they owned land when the road was laid out; and the record does not show that they did. These lots for which damages were claimed, were owned by Mrs, Steidle in 1869 and the jury awarded her $50 damages.
    Further, it is presumed that parties not mentioned in the report have sustained no damages. Point-no-point Road, 2 S. & R. 277.
   The Supreme Court affirmed the decision of the Court below on March 26, 1877, in the following opinion

Per Curiam.

It does not admit of a doubt that the act of Feb. 11, 1854, P. L. 63, is inconsistent with the 7th section of the General Road Laws of June 13, 1836, P. Laws 556, and, therefore, that the 7th section is repealed. The act of 1836, requires the appointment of six viewers ; the act of 1854 only three. Under the former damages cannot be assessed, until the confirmation of the report of the viewers has become final. Under the latter they must be assessed by the same viewers, at the time, of the view, and the confirmation of the report cannot be made until the court has considered the damages reported, and decided as to the propriety of payment, and by whom to be paid. Under the former the viewers in locating the road, do not consider the subject of damages specially, but only the question of location and the facts bearing upon it. Under the latter it is made the special duty of the viewers to procure releases of damages from those willing to release, thereby holding out a strong inducement to release in order to obtain the the road ; while under the former petitioners and others most interested are left to seek payment of damages after they have procured the location. There are other inconsistencies, but these are sufficient, and to all may be added that the cost is reduced, the act of 1854, limiting the number of viewers to three, of whom one must be a surveyor.

Order affirmed in each case.

Note. — There is no right to compensation for taking vacant land for a public road, unless given by statute.

Township of East Union vs. Comrey, 2 Sch. Leg. Rec. 289.  