
    ROAD case.
    
    ¡Neither the act of Assembly of 1809, nor that of 1815, authorises the appointment of reviewers, with power to vacate part of a road, which had never been opened and to lay out another in its stead.
    CertiokaRi to the Quarter Sessions of Northumberland county.
    At January sessions, 1S28, a petition was presented to the court, setting forth “that the road from Sunbury, past the Northumber-land Bridge, to the Ferry opposite Danville, was not laid on the best ground: and praying the court to appoint viewers to view, ahd if they see cause to re-lay said road, or to lay out a new road from the said Ferry opposite Danville, to the borough of Sun-bur yd, The viewers, at April sessions, 1828, made,a report of a road, which was confirmed. A part of the road thus laid out, which ran through Grant’s farm, had never been opened. At April sessions, 1830, a petition was presented to the court, setting forth that the above mentioned road had been laid, and “a part of which had been opened: your petitioners are of opinion that the said road may be laid upon other and better ground, more advantageous to the public generally, and with less injury to private property. They, therefore, pray the court to appoint six disinterested persons as viewers, to re-view the said road; and should they deem it advisable, to vacate so much of the said road now laid out, as may be altered or supplied.” There were but four of the signers to the first petition, who were not either dead or removed from the county, when the last petition was presented; and three of the four signed it.
    The reviewers made a report at August sessions, 1830, vacating that part of the road which' ran through Grant’s farm, and which had never been opened. Exceptions were filed to this report, upon which the court below set it aside. This certiorari was then taken out by the petitioners for the review.
    
      Grier, in support of the exception, argued that this proceeding by the petitioners, was neither under the act of Assembly of 1815,, nor that of 1829; and that the court should not have appointed reviewers to vacate part of a road, which had never been opened, and to locate another in its stea'd.
    
      Packer, contra.
    
   Per Ctjriam,

the report could not be sustained on the act of 18X5, which gives the viewers power to vacate the whole route, without giving them power to change the location in whole or in part. Nor could it be sustained on the act of 1809, which does give such a power, but only in relation to old roads completely opened; because the original road had been opened but in part. Had the inconvenience from opening it, been actually incurred, we should probably have heard nothing' of the present attempt by the owner of the soil to carry the road over a hill, to the detriment of the public, instead of permitting it to remain according to its present location, on the lev.el bank of the river. The report was, therefore, properly set aside.

Huston, J. dissented.

Proceedings affirmed.  