Chapter VI

In tracing the early history of the judicial proceedings by which roads and streets are laid out and opened in Pennsylvania, the common law of England lends little assistance. The physical conditions in colony and mother country were so radically different as to afford little analogy in matters of local or municipal regulation. In England, at the time of the settlement of the province, the country was traversed in every direction, from town to town and village to village, by ways so well defined by custom and so well established by reputation, that a complaint of want of thoroughfare was uncommon.⁠[565] In Pennsylvania, as in the other colonies, the opening of roads for public travel and for the transportation of commodities was an immediate and pressing economic necessity.

The science of road construction was still in its infancy and throughout England roads were, during the seventeenth and eighteenth centuries, in a deplorable condition. In the first year of the reign of Queen Anne, Charles III of Spain visited England. His experiences on the road between Portsmouth and Petworth in Sussex are thus related by one of his suite:—

“We set out at six in the morning by torchlight to go to Petworth and did not get out of the coaches (save only when we were overturned or stuck fast in the mire) till we arrived at our journey’s end. ’Twas a hard service for the Prince to sit fourteen hours in the coach that day without eating anything, and passing through the worst ways I ever saw in my life. We were thrown but once, indeed, in going, but our coach (which was the leading one) and his Highness’s body coach would have suffered very much if the nimble boors of Sussex had not frequently poised it or supported it with their shoulders from Godalming almost to Petworth; and the nearer we approached the Duke of Somerset’s house the more inaccessible it seemed to be. The last nine miles of the way cost us six hours to conquer them: and indeed we had never done it if our good master had not several times lent us a pair of horses out of his own coaching, whereby we were enabled to trace out the road for him.”⁠[566]⁠

So Defoe, in a letter written in 1722, remarks:—

“Going to church at a country village not far from Lewes, I saw an ancient lady—and a lady of very good quality I assure you—drawn in her coach to church with six oxen; nor was it done in frolic or humour, but mere necessity, the way being so stiff and deep that no horses could go in it.”⁠[567]⁠

Few roads were more than bridle paths and a journey for any distance from home was a serious undertaking, that commonly meant the inditing of a last will and testament and the settlement of one’s worldly affairs. A country gentleman when traveling alone at this time usually adopted the plan called riding post; that is, he hired at each stage two horses and a postboy, who carried the portmanteau behind him and rode back when fresh horses were required.

With the physical conditions thus, it is not surprising that the road law of the country was that of the feudal period, except as affected by special turnpike acts. Three kinds of ways were recognized—footways, horseways and cartways. In the language of Coke:—

“There be three kinds of wayes whereof you shall reade in our ancient bookes. First a footway, which is called iter, quod est jus eundi vel ambulandi hominis; and this is the first way. The second is a footway and horseway, which is called actus ab agendo; and this vulgarly is called packe and prime way because it is both a footway, which was the first or prime way and a packe or drift way also. The third is via or aditus which contains the other two and also a cartway etc. for this is jus eundi, vehendi et vehiculum et jumentum ducendi: and this is two fold, viz: regia via, the king’s highway for all men, et communis strata, belonging to a city or town or between neighbors and neighbors. This is called in our bookes chimin, being a French word for a way, whereof cometh chiminage, chiminagium or chimmagium, which signifieth a toll due by custome for having a way through a forest, and in ancient records it is sometimes called pedagium.”⁠[568]⁠

Another classification divided ways into: King’s highways, that is, public passages for the king and his subjects; common ways or such as led from a village to the parish church or common fields, and were for the benefit of the particular inhabitants of the locality; and private ways, where particular individuals had a right of passage through certain land.

The right to a public highway usually rested on an act of parliament, express grant, dedication, or was claimed by prescription, and, as already stated, complaints of want of thoroughfare seldom arose. If it became necessary to deviate from an existing way the new route did not become a public highway without a writ of ad quod damnum and inquisition. This was an ancient writ issued out of and returnable into chancery through the petty-bag office and was directed to the escheator or sheriff, who was commanded to hold an inquisition to determine what damage would result to the king or his subjects from the grant so that compensation could be made a condition thereof.⁠[569] Without this writ the public could not justify going over a new way, as a common highway, but were obliged to show their excuse specially.⁠[570] If the purpose was to change an old way or alter its condition, the new way, or way so altered, was required to be as beneficial as the old one.⁠[571] “These inquests of office,” says Blackstone, speaking generally of sheriffs’ and coroners’ inquisitions, “were devised by law, as an authentic means to give the king his right by solemn matter of record without which he, in general, can neither take nor part from anything. For it is of the liberties of England and greatly for the safety of the subject, that the king may not enter upon and seize any man’s possession upon bare surmises without the intervention of a jury.”⁠[572]⁠

The obscurity of the practice and infrequency of reported cases shows that ad quod damnum proceedings never played an important part in highway law. The writ contained great possibilities, and, with a simplified procedure, might have become a useful vehicle for accommodating the conflicting interests of the public and the land owner, had road matters been of importance in the flourishing days of petty-bag jurisdiction. But in those times the ancient ways were sufficient for the needs of the public, and where new roads were formally opened, they were usually either dedicated by the land owner or laid out over unimproved lands without compensation. When the pressure for highway improvements became greater a statutory proceeding more convenient and inexpensive was substituted for the ancient writ, preserving, however, the spirit and substance of the earlier procedure.⁠[573] In some of the American states, notably in Virginia and Kentucky, the writ ad quod damnum was introduced and applied in proceedings for the erection of mill dams on streams, and extended to other matters involving injury to and appropriation of private property.⁠[574]⁠

It was about the time of the settlement of the colonies that eminent domain as a distinct branch of governmental power began to be discussed, although it had long existed as a necessary attribute of sovereignty. Grotius, in 1625, first used and apparently originated the phrase which, although open to criticism, in so far as it implies that the basis of the power is an ultimate ownership in the state of all property, has been universally adopted as defining the power inherent in a sovereign state to take or authorize the taking of private property for public use.⁠[575] But in the seventeenth and eighteenth centuries the practical application of the principle and its relation to the constitutional restraints on state action had not been worked out.⁠[576]⁠

The period of Dutch supremacy was not marked by any special activity in road improvements. The colonists on both the North and South Rivers were scattered in villages along the banks and transportation was usually by water. The laying out of such highways as were needed came under the jurisdiction of the schout and schepens, while the streets of the capital were under the immediate supervision of the chief officials.⁠[577] Thus an ordinance of the director and council of New Amsterdam of February 25, 1656, approves a survey of the streets of the city and refers the execution to the burgomasters, who are to give notice to all persons, who may be damaged by the survey, to furnish a statement of their damages, and if an agreement cannot be reached, the matter is to be referred to two or three disinterested persons who are to appraise the lots.⁠[578] Various regulations were adopted as to the use of the village streets, one of which may be quoted at length:—

“Ordinance of the Vice Director and Commisaries of Fort Orange Passed 10 December 1659. The Worshipful Commissary and Commissionaries of Fort Orange and Village of Beverswyck, having heard divers complaints from the Burghers of this place, against playing at Golf along the streets, which causes great damage to the windows of the Houses, and exposes people to danger of being wounded, and is contrary to the freedom of the public streets; therefore their worships, wishing to prevent the same, forbid all persons playing Golf in the streets, on pain of forfeiting fl. 25 for each person who shall be found doing so.”⁠[579]⁠

That some of the good people of Albany were devoting their time to golf at this period, is more surprising than that their fellow-townsmen objected to the use of the streets as links.

Upon the conquest of the New Netherlands by the English the matter of highway regulation seems to have been neglected. There is no mention of the subject in the Duke of York’s Laws, and this is the more surprising in view of the fact that they were drawn largely from New England sources where the subject of highways had received early attention. By a law of the colony of Massachusetts passed in 1639 highways were to be laid out on complaint to the county court, which was directed to appoint “two or three men of each next town whose inhabitants had most occasion thereof,” and these, upon view, were to lay out such highway according to order and make return to the next court, compensation to be paid to any man damaged in his improved ground by estimation of those who laid out the same. If the viewers disagreed or the person was dissatisfied with the acts of the viewers, the matter was to be referred to the county court,⁠[580]⁠—a simple and effective proceeding, and hard to improve upon, as long as the laying out of roads was regarded as a matter of local government.

In the settlements on the Delaware the opening and repair of roads were matters within the jurisdiction of the court of sessions. Overseers of highways were appointed who were empowered to call upon the inhabitants for assistance in the construction and repair of highways and bridges, and persons refusing to work on the roads were fined by the courts.⁠[581] The following entry appears on the minutes of the court held at New Castle June 15, 1678:—

“It being Represented to the court y^t there is need of a highway to come from Jan Staalcops Round Christina to this Towne of New Castle, The court therefore ordered, that all the Inhabitants dwelling on the North syde of Christina, from brandewyn Creeke to the place or plantation of John Ogle, Doe with all Convenient speede make and Cleare a good and passable Highway from y^e s^d Staalcops house Round Christina Creeke to this Towne of New Castle, and doe appoint for overseer thereof Mr. Abraham Man who is desired to see the worke Effectually done.”⁠[582]⁠

At a court held December 3, 1679, the inhabitants were divided into companies under designated overseers and charged with the care of the highways in their respective districts. It was also ordered that—

“Whereas for y^e Common Good of the Country itt is found necessary that y^e highwayes from place to place bee annually made good & cleared Itt is therefore resolved viz^t That Every respective overseer take care that betweene Every decem & March his part of y^e highway bee made good & cleared, upon y^e penalty & forfeiture of 1000 lb. of tobb if proved to be y^e fault of y^e overzeer and if any Inhabitant resorting under the company of any overseer shall refuse upon due notice to worke att y^e highway till it be finisht hee to forfeit for Each such neglect 400 lb. of tobacco. The highway to be Cleared as followeth viz^t The way to bee made cleare of standing & Lying trees at Least 10 foot broad all stumpes & shrubs to bee close cutt by y^e ground, the trees markt yearly on boath sydes, sufficient bridges to be made and kept over all marshy swampy & difficult dirty places & what ever else shall be tougt more necessary in and about y^e highwayes afores^d.”⁠[583]⁠

William Penn on receiving his grant of the province of Pennsylvania, provided in his frame of government that the governor and provincial council should “at all times settle and order the situation of all cities, ports and market towns in every county, modeling therein all public buildings, streets and market places,” and should “appoint all necessary roads and highways in the province.”⁠[584]⁠

In the instrument executed by Penn July 11, 1681, known as “the conditions and concessions to the adventurers and purchasers,” it was agreed that—

“Great roads from City to City not to contain less than forty feet in breadth shall be first laid out and declared to be for highways before the Dividend of acres be laid out for the purchaser and the like observation to be had for the streets in the towns and Cities that there may be convenient roads and streets preserved not to be encroached upon by any planter or builder that none may build irregularly to the damage of another.”⁠[585]⁠

“On the arrival of the adventurers in this country,” says Chief Justice Shippen, “it was found very practicable to lay out streets in one great city, which was accordingly done, but quite impracticable to lay out the great roads or highways from city to city, as only one city was then contemplated. But as such great roads were to be laid out over the land of the proprietor alone and the purchasers were not to contribute, it was at length agreed and sanctioned in lieu of the impracticable plan settled in England, there should be an additional quantity of land granted to each purchaser without price or rent, to enable him to contribute without loss to such public roads as should thereafter be found necessary for the use of the inhabitants.”⁠[586] The quantity of six per cent was fixed as the permanent additional allowance for that purpose and provision was made therefor in the Acts of November 20, 1700,⁠[587] and of June 7, 1712.⁠[588] Both of these acts were repealed by the queen in council, for reasons having nothing to do with this provision, but the custom was established, and it is the law of this state that the owner of land taken for the purpose of a public road, has no right to compensation for the land itself, but only for the improvements, unless such a right is expressly conferred by statute.⁠[589] “The six per cent,” in the words of Chief Justice Black, “belongs to the State and she may constitutionally appropriate it to the use it was meant for. I speak now of land in its natural state. Where buildings are pulled down, or other valuable improvements destroyed in the making of a new road, the right to compensation is guaranteed to the owner by the constitution.”⁠[590]⁠

On the eighteenth of April, 1682, Captain Thomas Holme was commissioned as surveyor general of the province and proceeded to the Delaware, where, in the summer of that year, a site for the city of Philadelphia was chosen and the ground laid out in streets and lots, according to the general directions of Penn as shown on the plan usually referred to as Holme’s map of Philadelphia.⁠[591] If the streets seem narrow, it must be remembered that the plan was conceived on a liberal scale for that time. When the city was laid out the standard width of a street in London was two perches or thirty-three feet. Penn determined to make the streets wider in Philadelphia, so as to prepare for future growth, and, accordingly, established the standard of fifty feet, which is about three perches. Market street was laid out one hundred feet wide, Broad street one hundred and thirteen feet, Arch or Mulberry street sixty-six feet or four perches.⁠[592]⁠

Penn, indeed, was determined that the city should not be cramped. “Let every house,” he said in his instructions to the commissioners to lay out the city, “be placed, if the person pleases, in the middle of its plat as to the breadth way of it, that so there may be ground on each side for gardens and orchards, or fields, that it may be a green country town, which will never be burnt, and always be wholesome.”⁠[593]⁠

In the charter of October 25, 1701,⁠[594] erecting the town into a city, Penn ordained that the streets of the city should forever continue as they were then laid out and regulated, and no special power was conferred upon the corporation to alter the plan. This, of course, applied to the old city, extending from Vine street on the north to Cedar (South) street on the south. The streets in the several outlying districts were, upon their incorporation, plotted under special acts.

In accordance with the Frame of Government, the provincial council assumed jurisdiction of the laying out of the main highways, and the minutes of that body are full of references to such matters. At a meeting of the council in 1686—

“A Petition Relating to highways was Read, upon wch the Councill agreed y^t there should be a Sett time appointed for y^e Councill to Inspect all y^e Business relating to y^e Highways, and to Order yt y^e Roads be Laid out in y^e most proper and Convenient Places within this Province.”⁠[595]⁠

The multiplicity of their duties, however, prevented them from taking entire charge of road cases, and by the Act of March 1, 1683,⁠[596] it was provided that each county court should “appoint and settle sufficient cartways to the most convenient landing places, in their respective counties, for public use and benefit.” A distinction was thus made between the great provincial roads or king’s highways and the local roads or cartways for the convenience of a special neighborhood. This is illustrated by two resolutions of the council, passed within a couple of months of each other. In one case the minutes read:—

“The Petition of Henry Jones was Read, setting forth y^e badness of the way from Moyamensin to Philadelphia. It was Referred to y^e County Court, who it’s presumed has power to appoynt Roads to Landing Places, to Court, & to Markett.”⁠[597]⁠

In the other case:—

“The Councill taking into Consideration y^e Unevenesse of y^e Road from Philadelphia to y^e falls of Delaware.

“Agreed that Robt Turner & John Barnes for y^e County of Philadelphia, Arth. Cook and Tho. Janney for y^e County of Bucks, with y^e Respective Surveyrs of y^e sd Counties, meet and Lay out a more Comodious Road from y^e broad Street in Philadelphia to y^e falls aforesaid: y^e time when is Referred to y^e members Nominated.”⁠[598]⁠

From this time on the minutes of the council contain many references to public highways. Petitions were presented, sometimes by individuals, sometimes by the inhabitants of a neighborhood or township, complaining of the want of a road and praying for an order to lay out the same; if the petition was approved, the usual practice was to order that a warrant be directed to the surveyor general to lay out the road. The following is a typical case:—

“Upon the memorial of the Honble, Andrew Hamilton, Esqr. Gor of the Jersies, & post master generall, &c. to the Gor & Council, Setting forth that it was formerlie with great difficultie that the post could goe to Philadelphia by Land, to the great inconvenience of Correspondence & trade, and yt for remedie whereof, & accommodaon of Travellers, a ferry had been erected on Jersie side att a great chairge, but that the way was not yet returned from the landing on pennsilvania side to the king’s road, wch is about three Quarters of a mile & easily cleared; And therefore, Requesting the Governor & Council to approve the said road, and give the necessarie orders for clearing it.

“Ordered, that a warrantt be directed from the Governor to Thomas ffairman, Surveyor, To lay outt the king’s road from dunck William’s Landing, (the nearest & most convenient yt may be had, & Least prejudicial to the Lands and improvments of the nighbourhood,) Into the king’s great road that Leads to Philadelphia, and that a Return in words, of the Courses & protracted figure thereof, be made Into the Secries office, in order to be filed & recorded there, as a finall Confirmaon thereof. And that the Justices of the peace for the County of Bucks, be by the Governor requested to order the overseers of y^e Highways in that County to make good & clear the same wt all expedion.”⁠[599]⁠

The return of the surveyor general is as follows:—

“By virtue of the Governor’s speciall warrant, bearing date y^e 28th day of October, 1696, to mee directed, psuant to an order of the Govervor & Council, granted upon the applicaon of Andrew Hamilton, esqr. Governor of y^e Jersies & post mr generall, I have surveyed & Laid outt the king’s roade from y^e Landing of dunken Williams, on delaware, in the Countie of Bucks & province of pennsilvania, Beginning there at a Spanish oak att High water mark; thence sixtie foot broad, extending North North-west on each side the Line, dividing betwixt the Land of the sd duncken Williams & Nathaniel Harding, Two Hundred pearches; Thence in the sd duncken’s Land, north eightie-One degrees, westerlie fourtie pearches; Thence north sixtie-foure degrees, westerly sixty-two pearches, Unto the old king’s Roade which Leads to Philadelphia, & Hath been ancientlie Surveyed & Returned.”⁠[600]⁠

Occasionally an order for the laying out of a road is directed to a number of individuals, usually six, but these roads are not always described as king’s roads, and would seem sometimes to belong to the class of roads ordinarily laid out by the courts, which the council, in a few instances, undertook to order, in the exercise of their supervisory functions still undefined. In fact there are instances where their order was for the confirmation of an old road merely, or to settle a disagreement between the parties interested and the viewers appointed by the county court.

An interesting case was that of Robert Wade, the owner of a tract of land in Chester, the whole of which was taken by the grand jury for a public landing place and open street, without Wade’s knowledge or consent and without offering him any compensation. Upon his protesting the justices stated that they “Seazed it for the king,” whereupon he petitioned the council, stating—

“That the petitionr being a freeman, cannot by Law be disseized of his freehold but by the Judgment of his 12 equalls, by a Legall tryall, and which act of the Court has been to the petitioner’s great Loss & damage, who is daylie threatened to have what hee shall build on sd his Land pulled downe and throwen in the sd creek, and therfor, requesting such remedie & redress in the premisses as is agreeable to Justice & equitie.”⁠[601]⁠

The council sent to the court for a copy of the proceedings, and on further debate it was resolved that the action of the grand jury was unjustified and an order made that the petitioner be no further molested in the peaceable possession of his property.⁠[602]⁠

This isolated attempt by the grand jury to assume the right of eminent domain having been promptly frustrated, the real doubt as to how the Act of 1683 was to be interpreted was resolved by a further act defining the practice in road cases, passed May 10, 1699.⁠[603] This was re-enacted in almost the same language in the Act of November 27, 1700,⁠[604] as follows, the only substantial additions being the clauses bracketed:—

“Section I. Be it enacted by the Proprietary and Governor, by and with the advice and consent of the freemen of this Province and Territories in General Assembly met, and by the authority of the same, That all the King’s highways or public roads within this province or counties annexed, shall be laid out by order of the governor and council for the time being; which roads shall be recorded in the council book, with the courses thereof, as near as may be done.

“Section II. And be it further enacted by the authority aforesaid, That the justices of each county court within this government shall, and by virtue of this act have power, as often as they find needful, in open court to order and appoint six sufficient housekeepers of the neighborhood inhabiting near the place where complaint is made for want of a road or cartway unto the public road, who shall view the said place; and if the said housekeepers, or any four of them, are satisfied that there is occasion for a road or cartway to be laid out, according to the complainant’s or complainants’ desire, then they shall and may lay out the same, [in and through such convenient places as they shall think may be least to the damage or inconveniency of the neighbors or parties concerned, and least injurious to the settlements thereabouts;] and of such breadth as the justices shall order and appoint, so that it exceed not fifty feet; and shall make return thereof under their hands to the next county court after it is laid out; and if then and there the justices approve the same, it shall at the same court be entered upon record, and from thenceforth be taken, deemed and allowed to be a lawful road or cartway from that time forwards.

“[Provided, That no such road shall be carried through any man’s improved lands but where there is a necessity for the same; and where that appears, the respective county courts shall appoint six indifferent men to view and adjudge the value of so much of such improved lands as shall be taken up for the use aforesaid, and the value thereof shall be paid to the owner of the said land out of the respective county stock.]

“And to prevent any difference that may arise among neighbors about roads or cartways laid out by order of the governor and council, or any of the county courts in this government, and which are or shall be entered upon record, either before or after the making and publishing of this act:

“Section III. Be it enacted by the authority aforesaid, That all such roads and cartways as before mentioned, shall be taken, deemed and allowed to be free, open and lawful roads and cartways from the time they are so laid out and recorded as aforesaid.”

This act was the real foundation of the system of laying out and opening township roads in Pennsylvania. Its salient features were the provision for the appointment of six viewers to report on the necessity for the road before confirmation by the court, and the further provision that, where it became necessary to carry the road through improved lands, six viewers should be appointed to adjudge the value of the improvements so taken, which was to be paid for out of the county stock.

By a supplementary act of February 20, 1735,⁠[605] the justices of the quarter sessions were empowered, on the application of any person for a road from the plantation or dwelling place of such person to or from a highway, to direct a view, and if such road be found necessary, to order it laid out, not exceeding thirty-three feet in width, the value of the improved land taken to be paid for by the person at whose request it was laid out, who was also to clear and maintain the same.

The result of this legislation was to establish three kinds of roads: (1) The great provincial roads or king’s highways, laid out by order of the provincial council; (2) Cartways leading into public roads, laid out by order of the justices of the county courts upon the report of viewers, and (3) Private roads, likewise laid out by order of the justices upon the report of viewers.⁠[606] The last were common roads for the use not only of the persons for whom they were laid out but for all who should have occasion to travel to the plantations of such persons. Some interesting information as to the procedure may be gleaned from the minutes of the council, where road matters were frequently under consideration. Thus, on October 7, 1737, on consideration of a petition of sundry inhabitants of Lancaster County, setting forth the want of a high road from the town of Lancaster to Coventry Iron Works on French Creek in Chester County and praying for the appointment of proper persons to lay out the same, the council granted the prayer of the petition and directed that six persons appointed from Lancaster County or any four of them view and lay out a high road to the division line between Lancaster and Chester counties; that six persons appointed from Chester County, or any four of them, there join the others and agree on the most convenient passage over the division line and continue the road to the terminus and that the twelve, or eight of them, make return to the council for confirmation.⁠[607] The duties of the viewers, it will be noticed, were limited to their respective counties.

On March 24, 1736-7, an elaborate draft of a road from Harris’s Ferry on the Susquehanna River to Kennison’s plantation in Chester County was returned by the viewers, eleven of whom signed the report.⁠[608] A petition by some inhabitants of Chester County was presented, objecting to the road as laid out, and praying for a review. Other citizens supported the report, and after hearing the petitioners for the review withdrew their petition and the road was confirmed as laid out. Nevertheless, the parties being still dissatisfied and the quarter sessions of Chester County being of opinion that the road as laid out was impracticable, new petitions were presented to the council for and against the road. After full argument the council, finding that all the objections were to that part of the road in Chester County, appointed six persons from that county to review the road from the county line and make such alterations to the best of their judgment “as may truly answer the intention of accommodating both Country and travellers.”⁠[609] Upon the report of the reviewers the following order was made:—

“The Board, on due Consideration had of the said Return, and of the Draught accompanying it, do approve, establish, & confirm the Road aforesaid as now laid out and reviewed, agreeable to which Return the Confirmation formerly made by an Order of Council of the twenty-fourth day of March, 1736-7, is directed to be amended, and the said Road is hereby declared to be the King’s Highway or Publick Road, and It is Recommended to the Justices of the Peace for the County of Chester, that they, at their next ensuing Quarter Sessions, issue Directions to the Overseers of the Highways for causing the said Road to be opened & cleared, so that it may be rendred commodious for the Publick Service.”⁠[610]⁠

The foregoing record is interesting as showing the practice of granting reviews in the case of provincial as well as county roads, and other instances will be found in the minutes of the council. In the case of a road laid out by the quarter sessions it was held in 1764 that a review, though not taken notice of in the act of assembly, had always been granted and had become a matter of right.⁠[611] By the Act of April 6, 1802,⁠[612] the quarter sessions were required to grant a review in all cases, provided the application was made at the next court after the report had been made on the first view. The appointment of re-reviewers is discretionary.

The Act of April 6, 1802, just referred to, was a general road law which replaced the older legislation with greater elaboration of detail. It, in turn, was repealed by the general road law of June 13, 1836,⁠[613] an act, drafted by the commissioners to revise the civil code, which embodied the previous legislation and practice in a clear and comprehensive form. This act, with its amendments, is still in force and is the only general road law applicable to all parts of the commonwealth, but its operation has been greatly restricted by local and special acts.

Briefly stated the Act of 1836 provides that the court of quarter sessions, on being petitioned to grant a view for a road within the county, shall appoint six viewers (since reduced to three),⁠[614] who, if they agree that there is occasion for the road, are to proceed to lay out the same so as to do least injury to improved property and also meet the desire of the petitioners. The viewers are required to report at the next term of court, annexing a draft of the road, stating the courses and distances and briefly noting the improvements and, when practicable, they are not to lay out the road at an elevation exceeding five degrees except at crossings of ravines and streams. If the court approve the report they must direct of what breadth the road shall be opened⁠[615] and at the next court the whole proceedings are to be entered of record and the road deemed and allowed to be a public road or highway or a private road as the case might be.

Public roads were to be kept in repair at the expense of the township; private roads at the expense of the petitioner. Reviews might be granted if applied for at or before the next term of court after the report on the first view. The owner of any land through which the road was laid out might, within one year from the opening, petition for the appointment of six viewers to assess his damages, who were to report to the next court the injury done, and if their report was approved the amount assessed was to be paid out of the county stock.

The Act of May 14, 1874,⁠[616] following various prior local acts, provides that the viewers appointed to lay out the road shall endeavor to procure releases from property owners and shall assess the damages sustained, thus combining the laying out of roads and the assessment of damages in one view, and obviating the necessity of a separate view for damages, except in such counties as may have local laws inconsistent with the Act of 1874. These proceedings seem simple enough, but a glance at the hundreds of bitterly contested cases would indicate otherwise. Every step, in fact, has been the subject of protracted litigation and voluminous opinions, which must be carefully studied at every stage of this intricate game of the law.

The general road law of 1836 conferred no authority on the quarter sessions to grant a view to widen a road or street, but this jurisdiction was conferred by the Act of May 8, 1850.⁠[617]⁠

As to the vacation of roads, the Act of 1836 provided that the quarter sessions should have power, on petition, to change or vacate the whole or any part of a public or private road which had become inconvenient, useless or burdensome, and to vacate and annul a road laid out, but not opened, on petition of a majority of the original petitioners. No authority was given to vacate a road confirmed and partly opened, but this defect was remedied by the Act of May 3, 1855,⁠[618] which, however, expressly excepted state roads, authorized by special law, and streets in incorporated cities and boroughs. The Act of May 8, 1854,⁠[619] conferred jurisdiction on the quarter sessions to vacate any private or public lane, alley, road or highway whenever the same, by reason of forming of town plots or otherwise, had become useless to the public and those having lands bounding thereon.

Whenever the whole or a part of a road is vacated, changed and supplied by a new one, the old road cannot be closed until the road laid out to supply its place is actually opened and made.⁠[620]⁠

With the dissolution of the provincial government in 1776 the jurisdiction of the council in matters relating to the laying out of highways came to an end and the constitution adopted in that year conferred no special jurisdiction in such affairs upon its successor, the supreme executive council. As a consequence, the great roads through the sparsely inhabited sections of the state, where the settlers were unwilling or unable to bear the expense of constructing such highways as the public service required, were authorized by special acts of the legislature. Such an act was that of September 21, 1785,⁠[621] directing the president, or in his absence the vice-president, in council to appoint three freeholders as commissioners to view, survey and lay out a state highway from Miller’s Springs in Cumberland County to Pittsburg, of the breadth of fifty feet, and to report to the president and council, who were to confirm the same or order a review. The highway, when so established, was to remain a state highway and the courses and distances to be entered in the council book. An appropriation of £2000 was made for this enterprise. This road was in part laid out, and confirmed by the council November 24, 1787,⁠[622] as far as Bedford, but a review was ordered of the other part from Bedford to Pittsburg. By a resolution of the assembly of November 21, 1788, the council was ordered to draw for the expenses of the review, and, accordingly, by order of the council March 14, 1789,⁠[623] reviewers were appointed, whose report was confirmed September 28, 1790.⁠[624]⁠

Many state roads were laid out by commissioners under similar acts and it cannot be doubted that, in the early days, such proceedings were of use where a road was desired through several counties, whose conflicting demands it was difficult to reconcile. But in later years the power of the legislature was greatly abused and the constitution of 1874 has forbidden the passage of any local or special law authorizing the laying out, opening or altering of highways.⁠[625]⁠

As for the local acts containing variations from the general road law, it would be useless to attempt to summarize them. A list of such acts, published in 3 Pennsylvania County Court Reports, 401, covers eight pages of small type and is really appalling. And yet this list does not include Philadelphia County, which, prior to the consolidation in 1854, included, besides the city proper, six boroughs, ten incorporated districts and thirteen townships, many of which had their own highway systems.⁠[626]⁠

In Philadelphia, as previously stated, the principal streets were laid down by the surveyor general on the original town plan and no special power was conferred on the corporation to change that plan. The Act of April 15, 1782,⁠[627] declared that streets theretofore opened to public use by private persons or directed to be laid out by the supreme executive council should be considered and deemed public highways. The Act of March 25, 1805, empowered the quarter sessions, on petition, to grant views for the laying out and opening of streets in Philadelphia. This act was supplied and repealed by the general road law of 1836, which instituted a rather cumbersome method of summoning road viewers and was in turn repealed and supplied by the Act of March 16, 1866.⁠[628] The streets in the districts first incorporated were directed by local acts to be surveyed and laid out by the commissioners of the districts, who were required to return a general plan (in the case of Southwark, to the supreme executive council; in the case of Spring Garden, to the quarter sessions)⁠[629]⁠, which, on approval, was recorded. The subsequent opening of the streets, so laid out, was on petition of a stated number of freeholders to the quarter sessions. This system, with minor modifications, was extended to the other municipalities by local acts which will be found in Price’s Index to Local Legislation in Pennsylvania.

Section 27 of the Act of February 2, 1854,⁠[630] by which the various municipal corporations in Philadelphia County were consolidated into one city, established a board of surveyors who, by an amendment passed in the following year,⁠[631] were directed to cause a survey of the city plot to be completed. By the Act of June 6, 1871,⁠[632] the board of surveys is empowered to examine and confirm or reject all plans of survey or revision of plans made under direction of councils.

Streets in Philadelphia may be opened either by ordinance of councils or by the quarter sessions. Under the Act of April 21, 1855,⁠[633] councils may order any street laid down on the city plan to be opened, whenever they deem the public exigency to demand it, giving three months’ notice to the owner. This act, it has been said, was intended only for special cases requiring speedy action, but, as councils are the judges as to when the exigency exists, there is no review of their decision, and, in practice, this is the usual method pursued. The quarter sessions has concurrent jurisdiction, by proceedings on petition, to order the opening of a street laid down on the city plan, but the court will not appoint viewers when the opening of the street is so inadvisable that confirmation of a report favorable to an opening would be withheld.⁠[634] When a plotted street is opened by ordinance, a jury of six viewers is appointed by the quarter sessions to assess the damages, and if the proceedings are begun in that court, the same viewers pass on the damages as report on the necessity for opening. The general Act of May 8, 1889,⁠[635] providing that juries of view shall consist of three persons, does not apply to juries appointed by the quarter sessions of Philadelphia nor is the jurisdiction of that court affected by the general Act of May 16, 1891.⁠[636] The juries appointed to assess damages are also to assess benefits upon the properties whose value is enhanced by the opening, which benefits are to be collected by the city as in other cases of municipal assessments.

While the matter is of academic rather than practical interest, it is curious to note that proceedings might still be brought to open streets laid down on the plans of the old incorporated districts under the special systems prevailing in those districts, it having been held as late as 1878,⁠[637] that the clause in the Act of 1813 relating to the opening of streets in the district of Spring Garden was still in force. It is highly improbable that such a proceeding could be carried to a successful issue, as these acts constitute the forgotten lore of a previous generation, and the courts are increasingly inclined to leave such matters to the municipal authorities who must devise the means of paying for public improvements.

As to changes of grade in Philadelphia, in section 27 of the consolidation act there was a proviso that compensation should be made for damage to private property resulting from any changes in the plans adopted under that section, but this was held to apply only to alterations and revisions of grades previously established by the old city or other municipalities before the consolidation. Hence, a paper change made in a grade established after the consolidation gave the land owner no right to proceed in the quarter sessions, his remedy being under Article XVI, § 8 of the constitution of 1874 upon the physical change. Prior to 1891 this remedy was enforceable by action of trespass. Since the passage of the Act of May 16, 1891, petitions for the assessment of damages for changes of grade are assigned to the common pleas and three viewers appointed.⁠[638]⁠

Space will not permit a reference to many other interesting features in Philadelphia’s local system and in the local systems of other parts of the state. That of Pittsburg has had an important influence on subsequent general legislation on the subject of streets in municipalities. By a series of acts, beginning with that of January 6, 1864,⁠[639] authority to lay out, open and widen streets in Pittsburg was vested in councils, with very extensive powers in the matter of assessing and collecting assessments for benefits. These powers, having been exercised in an arbitrary and reckless manner, were resisted by property owners, and certain acts framed to strengthen the hands of the municipal authorities having been declared unconstitutional, the whole matter was thrown into great confusion.⁠[640] To remedy this, a series of curative acts was passed, concluding with the Act of May 16, 1891,⁠[641] which, while in form and intent a general act, is but a part of the series and manifestly intended as a blanket supplement to the others, to supply deficiencies and confirm doubtful powers under existing legislation. This act was held applicable to municipal corporations generally, but does not supersede previous legislation or confer new rights, such as the right to damages for the vacation of a public highway which, ordinarily, does not exist unless conferred by a special law. By reason of its many practical features the Act of 1891 may in time become the basis of a uniform system.

Boroughs incorporated under the general borough Act of April 3, 1851,⁠[642] are authorized to ordain and lay out streets within the borough limits, but in boroughs incorporated prior to the general borough act and having no special provisions on the subject in their charters, the jurisdiction to lay out streets is in the quarter sessions under the general road law. The Act of 1891 may be used in boroughs as an alternative method of proceeding.⁠[643]⁠

The counties of Erie and Bradford have under their local acts a system radically different from the general road law.⁠[644] By these acts the authority to lay out roads is vested in the road commissioners of the townships, who may be required to view a proposed route for a road on petition of twelve citizens of the township. From their action any person affected may appeal to a justice of the peace, who, if he finds there is good cause of complaint, issues a summons to six disinterested citizens as jurors, and the decision of the justice and jurors is reviewable only by certiorari.

Article XVI, § 8 of the constitution of 1874 secures an appeal from any preliminary assessment of damages and a trial by jury whenever private property is taken, injured or destroyed by a municipal or other corporation, or an individual invested with the privilege of taking private property for public use. The Act of June 13, 1874,⁠[645] is intended to carry this provision into effect, where no sufficient provision for a jury trial already existed. Counties and townships having been held not to be municipal corporations within the Act of 1874, it was provided by the Act of May 26, 1891,⁠[646] that an appeal might be taken to the common pleas by any party aggrieved by the decree of any court of quarter sessions, confirming the report of viewers appointed to assess damages for the opening, condemning or change of grade of any street, road or highway, for a trial of the question of damages by a jury according to the course of common law.

As to damages, an allusion has been made to the effect of the six per cent allowance for roads in original grants by the proprietors or the commonwealth. The constitution of 1790 contained no restriction on the taking of private property for public use except that in Article IX, § 10, it was provided that no man’s property should be taken or applied to public use “without just compensation.”⁠[647] A similar provision was contained in the constitution of 1838 and is embodied in the bill of rights to the constitution of 1874 (Article I, § 10). Besides this, Article VII, § 4, of the constitution of 1838 provided that the legislature should not invest any corporate body or individual with the privilege of taking private property for public use, without requiring compensation to be made or secured to the owner of such property. Under this clause it was held that there was no liability for consequential injuries.⁠[648] To remedy this the constitution of 1874, in Article XVI, § 8, added “injured and destroyed” to the words “property taken,” and compensation may now be recovered in the case of any property sufficiently near the improvement to make the injury proximate, immediate and substantial.⁠[649]⁠

In assessing damages in road cases, the measure of damages, stated in the briefest possible terms, is the difference in the market value of the property injured before and after the improvement. Into this labyrinth, externally so fair, it would be inadvisable to penetrate, except to remark that, as a practical question, it is extremely difficult to obtain expert witnesses with sufficient powers of generalization to state a difference in market values, as a psychic phenomenon or unrelated idea, without betraying on cross examination the inadmissible sources from which their estimates are derived.

In response to the demand for good roads, which of late years has become more insistent, recent legislation has been directed to the improvement of the condition of the public highways throughout the state. A beginning was made in the Act of June 26, 1895,⁠[650] which authorized the county commissioners with the approval of the grand jury and court of quarter sessions, to cause any particular main highway to be improved, and for that purpose to re-locate, open, straighten, widen or alter the same, the damage to property to be assessed by viewers. The highway when so improved is a township or borough road, the duty of maintaining which rests on the locality. By an amendment of April 22, 1905,⁠[651] the county commissioners are required first to cause to be laid out, surveyed and adopted a system of main thoroughfares, taking into consideration the needs of all parts of the county, a plan of such system is to be approved and recorded and thereafter all applications to the quarter sessions for the improvement of a road under the act are to be restricted to the development of such system.

By the Act of April 15, 1903,⁠[652] a state highway department was established, with a commissioner at its head, who is authorized to co-operate with the counties and townships in the reconstruction and improvement of the principal highways according to the plans adopted by the department, the cost to be apportioned and borne, sixty-six and two thirds per cent by the state, sixteen and two thirds per cent each by the county and township, provided that amount appropriated for state aid shall be apportioned among the counties according to their road mileage. Six million five hundred thousand dollars was appropriated to carry out this act, to be expended during six years, ten per cent of which was to be set aside for the purpose of maintenance where the conditions warranted the affording of state aid for such purposes. All highways constructed or improved under the provisions of this act are to be known as State Highways.

In passing rapidly over our system of road law apologies for the omission of much that is of interest as well as of importance are unnecessary. The subject has reached dimensions that can hardly be contained in a text book of reasonable size. The extraordinary number and variety of the statutes, with the decisions interpreting them, might drive a Bentham to despair, but has caused less inconvenience than might reasonably be expected, for the reason that the bar of the state is an aggregation of county bars, each familiar with the local practice and with few opportunities to test the disadvantages of its own, or the advantages of rival systems. Consequently no bar sentiment in favor of uniformity and simplicity has developed, and while there is no inherent difficulty in drafting a code, or series of codes, which, with the repeal of all local acts, would reduce the subject to order, local prejudices and conservatism would probably oppose such a movement. Minor reforms suggest themselves. The assignment of road cases to the quarter sessions, in accordance with colonial tradition, possesses no advantages, and is contrary to the modern tendency to confine the activities of that court to criminal matters.

As appeals from awards of viewers to the common pleas for a jury trial are the rule rather than the exception, the proceedings should have their inception in the latter court, as in change of grade cases under the Act of 1891. There is no reason why six viewers should be appointed to assess damages for the opening of streets in Philadelphia, when three are sufficient in change of grade cases, except to gladden the hearts and replenish the purses of the additional jurors. The method of presenting testimony as to values by expert witnesses is far from satisfactory, but that difficulty belongs to the law of evidence and is not confined to road cases.

Time may improve our roads and our road laws, but for the present no attorney delighting in the sharp points of the law need mourn for a field for his talents.

Criticism is frequently leveled at the adventitious growth of our law, at its want of system, its atavistic tendencies. But is this not true of other sciences as well? Can we not detect traces of folklore in religion, of magic in medicine? The deeper the foundations of a science the more securely is it buttressed by the rubbish of the ages.

Communities do not grow according to preconceived plans, nor does progress necessarily point to a prison lockstep march toward a Utopia of automatic activities. But in law, as in other sciences, there must be periodic revision of the accumulated material, otherwise the principles of social conduct will be lost sight of in a mass of unrelated and arbitrary rules. Statutes that are obsolete should be repealed, conflicting statutes reconciled, and ambiguous statutes restated. Local and special provisions that really serve no useful purpose should, in the interest of orderly administration, be replaced by general acts.

The present state of the statute book, representing as it does the accumulations of two centuries, is far from creditable to a community that claims to be progressive, and should be subjected to systematic revision, if only for the sake of clearness. The responsibility for this condition does not rest wholly upon the bar nor, in fact, upon any one class in the community. It results from the rapidity of our material development and the recurring necessity for immediate legislation, coupled with a fallacious belief in new statutes as a panacea for all the ills of the state. The disinclination to revise what has already been enacted is in part the result of an inherited conservatism, an unwillingness to tamper with what is written although imperfectly understood. Purely selfish interests, too, may unite to disfigure or destroy a well conceived plan for the unification of a branch of the statute law, as happened at the legislative session of 1909 when the proposed school law was cut to pieces to satisfy conflicting local claims.

Since the days of Bradford and Franklin the commonwealth has relied on private enterprise for compilations and digests of the statute law. But these, however creditable to their editors, cannot take the place of a systematic revision authorized by the state and ratified by legislative enactment. The private editor cannot say that any law is obsolete, he must print what he finds. If he undertakes to decide that an act is repealed or supplied by implication and omits it from his text, there is no assurance that his opinion will be endorsed by the courts.

While road law, owing to its local development, is a glaring example of the confusion that in time creeps into the statute book, it is by no means the only title that requires attention. The laws relating to corporations, municipalities, taxation, as well as other subjects, are in need of revision and unification. The education of the public to the economy of well drafted and properly classified statutes may be slow, but a progressive bar should assist in that education and be prepared to lend encouragement to any reasonable and practical plan for a systematic analysis and rearrangement of our statute law.

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