
    Road in Spring Garden and North Codorus Townships.
    
      Road law — Re-reviewers — Time of appointment — Petition filed within term — Discretion of court to appoint re-reviewers.
    
    1. Re-reviewers of a proposed road may be appointed after the report of the reviewers has been finally confirmed, on a petition filed within the time the report of the reviewers was open for exception.
    2. Where the original viewers and the reviewers report in favor of the opening of a road, the court, using its discretion, may appoint re-reviewers on the petition of the board of township commissioners averring that the, proposed road is adjacent to a creek which frequently overflows its banks and maintenance thereof would be extremely expensive.
    Petition for appointment of re-reviewers of a proposed road in Spring Garden and North Codorus Townships. Q. S. York Co., April Sess., 1927, No. 8.
    
      M. S. Niles, for petition; C. W. A. Roehow, contra.
   Stock, J.

This matter involves an adjudication of the right and the discretion of the court to appoint re-reviewers.

The proceedings in this road case pertinent to a decision of the questions raised are as follows: On Aug. 24, 1926, a petition for a review was filed to No. 2, August Term, 1926, and the order to review granted, returnable to October Term, 1926. On Oct. 25, 1926, the time for filing the report was continued until the January Term, 1927. Jan. 5, 1927, the report of the reviewers was. filed and confirmed nisi. No exceptions were filed to this report, and on April 11, 1927, during the January Term, a petition for the appointment of re-reviewers was presented and filed.

The first question raised is: That this petition was filed before the time had expired within which exceptions may be filed to the report of the reviewers, and before their report was confirmed absolutely. That’this is irregular, and that no appointment can be made on said petition.

Where exceptions were filed to a report of re-reviewers, and at the same time a petition was presented for a re-re-review, it was held that it was not error to direct this petition to be filed to await the disposition, of the exceptions: Greenwood Township Road, 27 Pa. Superior Ct. 549-551. This is in effect what was done in the instant case, where the time for filing exceptions has been allowed to expire before action is taken on the petition for re-reviewers. This is not inconsistent with the ruling of this court, where it. was held irregular to appoint re-reviewers before the’ exceptions to the previous proceeding had been disposed of: Seiple’s Private Road, 8 D. & C. 303; 40 York Leg. Record, 5.

The second question raised is: That the court should refuse to appoint, re-reviewers in the exercise of its discretion. Section 5 of the Act of Feb. 17, 1860, P. L. 61, provides: “That it shall be the duty of the court, upon sufficient cause being shown by any person or persons affected by such report, . . . to appoint reviewers or re-reviewers.”

In the instant case, both previous reports favored the laying out of the road. Ordinarily, that would be persuasive proof that a third hearing is unnecessary. However, in this case the petition for review is made by the Township of Spring Garden, acting in its corporate capacity through its board of township commissioners, pursuant to resolution adopted at a regular meet-' ing of said board. The reason for their action is the allegation that the road “is adjacent to the Codorus Creek, which frequently overflows its banks, and makes the maintenance of the road, if adopted, burdensome and extremely expensive.”

It would, therefore, appear proper to allow the prayer of this petition in the interest of the public and of the taxpayers of Spring Garden Township.

And now, to wit, July 11, 1927, the petition for appointment of re-reviewers is received, and Herbert D. Smyser, Harry P. Peeling and E. E. Allen are appointed re-reviewers.

From Richard E. Cochran, York, Ra.  