
    Chartiers Township Road. Biggert’s Appeal.
    An appeal does not lie to an order of court confirming the report of viewers in a road case under the Act of June 13,1836.
    On certiorari to bring up the record in proceedings laying out a public road in a township, it appeared by the record that the petitioners were inhabitants of a borough and a township, and the draft returned with the report showed that the termiui of the road laid out were connected by another road already laid out and opened. The assignments of error specified that the court lacked jurisdiction because the petitioners were from the borough as well as from the township and the proceedings should have been to vacate and supply the old road. Held that the proceedings should be affirmed.
    Nov. 4, 1888.
    Appeal and certiorari, No. 68 Oct. T. 1888, to Q. S. Allegheny Co., to review an order of the court confirming the report of viewers, laying out a public road, at Dec. Sessions, 1886, No. 9.
    On Feb. 12, 1887, the petition of divers inhabitants of the boroughs of Chartiers and Mansfield and the township of Chartiers was presented to court showing that they labored under great inconvenience for want of a public road or highway in said township of Chartiers, to begin at a point where a public road, leading from said borough of Chartiers, through said township of Chartiers, ends at or near Idlewood Station and on the northerly side of the tracks of the Pittsburgh, Cincinnati and St. Louis Railway, and extending thence to a point on another public road leading from said Idlewood Station to the bridge over said railroad between the residence of John Biggert, Esq., and said bridge. The petitioners prayed the court to appoint proper persons to view and lay out the same according to law. Whereupon the court appointed three viewers, who reported as follows :
    “We, the undersigned persons, appointed at No. 9, December sessions, 1886, to view a public road in the boroughs of Chartiers and Mansfield, and township of Chartiers, from a point near Idle-wood Station in a public road leading from the borough of Chartiers to Idlewood Station to a point in another public road leading from said Idlewood Station to a bridge crossing the Pittsburgh, Cincinnati and St. Louis Railway, respectfully report:
    “That, having met on April 25, 1887, pursuant to legal notice, and being duly sworn according to law, all the viewers being present, we have viewed the route of the above described road and part of the country adjacent thereto, and, after due consideration and diligent inquiry as to necessity for said road, are of opinion that the prayer of the petitioners should be granted for the reasons set forth in thei etition.
    “ ! have therefore located and distinctly marked upon the ground and do recommend for public use the following described road, to-wit: Beginning at a point near Idlewood Station in a public road leading from the borough of Chartiers to Idlewood Station; thence north 35 degrees east, 707 feet; thence north 29-J- degrees east, 267 feet; thence north 31 degrees east, 250 feet; thence north 26J degrees east, 133 feet; thence north 21J- degrees east, 323 feet, to a point in a public road leading from Idlewood Station to a bridge crossing the Pittsburgh, Cincinnati and St. Louis Railway.”
    The viewers further reported as to releases and damages and concluded as follows: “We also submit herewith a plot or draft showing courses and distances of said road and noticing briefly the improvements over which it passes, and make the same a part of this report.”
    The draft returned with the report showed the courses and distances of the line of the proposed new road and the following courses and distances of a road already opened, beginning at the beginning of the new road: north 35 degrees 50 minutes west, 100 feet; north 44 degrees west, 100 feet; north 34 degrees 10 minutes west, 100 feet; north 31J degrees west, 161 feet; north 24J degrees east, 400 feet; north 23f degrees east, 100 feet; north 36J degrees east, 100 feet; north 61 degrees east, 492 feet; north 55§ degrees east, 504 feet, to the point where the proposed road intersects this road. This old road is the road recited in the report as “ leading from Idlewood Station to a bridge, etc.” The first two courses are identical with the road recited in the report as leading from the borough of Chartiers to Idlewood Station. Near the middle of the last course of the old road the draft shows another road running in a northerly direction.
    Both the old road and the new road ran through lands of Biggert and others, appellants, to whom damages were awarded, John Biggert and others filed, inter alia, the following exceptions :
    “ 1. The said road is unnecessary for public use and convenience. Instead of being a new road it is in fact an attempt to straighten out an old one, which is ample in all respects for the accommodation of the public.”
    
      “ 3. The proceeding in this case is irregular and void in this, it, if demanded by the public interests, should not have been a proceeding for a new road, but should have' been a proceeding to vacate a portion of the old road and supply the portion vacated by the strip described in the proceeding.”
    The court overruled the exceptions and confirmed the report in an opinion by Magee, J., holding that the report of the viewers was evidence of the necessity for the road and that if the exceptants are dissatisfied a petition for a review is the proper remedy.
    
      The assignments of error specified the action of the court, 1, and o, in overruling appellants’ exceptions, quoting them; 2, in confirming the report; 3, the court had no jurisdiction to entertain the petition of citizens of the boroughs of! Mansfield and Char-tiers, even though citizens of Chartiers township joined with them, to have "a road laid out in Chartiers township; and, 4, the court erred in confirming the report of viewers upon insufficient evidence as to the necessity of the proposed road.
    
      John S. Ferguson, for appellants.
    The manifest object, as appears by the draft, was to straighten the road. The proceedings should have been to vacate and relocate.
    
      W. R. Errett, for appellees.
    The questions involved in opening a new road or vacating an old one are questions of fact under the Act of June 13, 1838, P. L. 555, §§ 1, 2 and 18. If the old road is useless, it can still be vacated. The draft shows that it connects with other roads in the neighborhood. Every presumption is in favor of the regularity of the proceedings and this court will not consider facts outside of the record. Rule 34; Loretto Road, 29 Pa. 352; Chartiers Twp. Road, 34 Pa. 415; Spring Garden St., 4 Rawle, 194; Penn’s Grove Road, 4 Teates, 372 ; McCungie Twp. Road, 26 Pa. 222.
    The question of jurisdiction, as sought to be raised, depends upon a question of fact also. How many of the petitioners were citizens of Chartiers? The fact that other citizens have signed would be treated as surplusage. Under the Act of June 13, 1836, § 1, the proceeding is a county matter. The petition of a single citizen of the county would seem to be sufficient.
    Jan. 7, 1889.
   Per Curiam,

There was an appeal as well as a certiorari in this case. The appeal must be quashed as it does.not lie to an order of court confirming the report of viewers in a road case. The certiorari brings up nothing but the record, and we can only examine the regularity of the proceedings. The assignments of error go to the merits and cannot be considered.

The appeal is quashed at the cost of the appellants, and the proceedings below are affirmed upon the certiorari.

T. E. P.  