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.