Chapter XII: 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.

FOOTNOTES:

[565] Woolwych on Ways, 6.

[566] England in the Eighteenth Century, Sidney, Vol. II, 3.

[567] England in the Eighteenth Century, Sidney, Vol. II, 6.

[568] Coke on Littleton, 56 A.

[569] Fitzherbert’s Natura Brevium, 226.

[570] _King_ v. _Warde_, Croke’s Reports (Charles I), 226 (1633).

[571] _Ex parte Armitage_, Ambler’s Reports, 294 (1755).

[572] III Blackstone’s Commentaries, 259; _Bonaparte_ v. _Camden and
Atlantic Railroad Co._, Baldwin’s Reports (U. S.), 205 (1830) at page
221.

[573] 13 George III, chapter 78, § 19; _Davison_ v. _Gill_, 1 East’s
Reports, 64 (1800).

[574] _Wroe_ v. _Harris_, 2 Washington’s Reports (Va.), 126 (1795);
_Gay_ v. _Caldwell_, Hardin’s Reports (Ky.), 63, (1806); _Mairs_
v. _Gallahue_, 9 Grattan’s Reports (Va.), 94 (1852); _Tracy_ v.
_Elizabethtown, L. & B. S. Railroad Co._, 78 Kentucky Reports, 309
(1880); _Schuylkill & S. N. Co._ v. _Decker_. 2 Watt’s Reports, 343,
(1834).

[575] Grotius, De Jure Belli et Pacis, Lib. III, chapter 20, § 7.

[576] Nicholls on Eminent Domain, 7.

[577] II New York Colonial Documents, 621; O’Callaghan’s Laws and
Ordinances of New Netherlands, 478.

[578] O’Callaghan’s Laws and Ordinances of New Netherlands, 219.

[579] O’Callaghan’s Laws and Ordinances of New Netherlands, 367.

[580] Laws of Massachusetts Colony (1672), 64; compare Laws of Colony
of New Plymouth (Edition of 1836), 64.

[581] Records of Court at Upland, 118, 192.

[582] Records of the Court of New Castle, 288.

[583] Records of the Court of New Castle, 364, also pages 143, 169,
197.

[584] Charter and Laws of Pennsylvania, 95.

[585] Charter and Laws of Pennsylvania, 467.

[586] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; 3 Yeates’s
Reports, 362 (1862).

[587] II Statutes at Large, 118.

[588] II Statutes at Large, 400.

[589] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 13567.

[590] _Perryville & Z. P. R. Co._ v. _Thomas_, 20 Pennsylvania
Reports 91 (1852).

[591] Hazard’s Annals of Pennsylvania, 555.

[592] _Philadelphia_ v. _Hinckley_, 9 Pennsylvania District Reports
125 (1900).

[593] Hazard’s Annals of Pennsylvania, 530.

[594] 1 Dallas’s Laws of Pennsylvania, Appendix 11.

[595] I Colonial Records, 136, 18, 3 mo. 1686.

[596] Charter and Laws of Pennsylvania, 139.

[597] I Colonial Records, 142, 3, 7 mo. 1686.

[598] I Colonial Records, 148, 19, 9 mo. 1686.

[599] I Colonial Records, 463, October 28, 1696.

[600] I Colonial Records, 467, October 31, 1696.

[601] I Colonial Records, 402, February, 13, 1693-4.

[602] I Colonial Records, 441, May 25, 1695.

[603] Charter and Laws of Pennsylvania, 285.

[604] II Statutes at Large, 68.

[605] IV Statutes at Large, 296.

[606] _McClenachan_ v. _Curwen_, 6 Binney’s Reports, 509; s. c. 3
Yeates’s Reports 362 (1802).

[607] IV Colonial Records, 247, October 7, 1737.

[608] IV Colonial Records, 181, March 24, 1736-7.

[609] IV Colonial Records, 283, March 22, 1737-8.

[610] IV Colonial Records, 287, May 15, 1738.

[611] _King’s Road_, 1 Dallas’s Reports 11 (1764). _In re Road in
Chester County_, Supreme Court Docket No. 4, page 37, September
Term, 1764, on _certiorari_ the order is reversed “for refusing to
grant a review, and reviewers appointed.” Is this the same case?
Lewis Gordon, writing to Richard Peters, March 18, 1758, signified
his intention to apply for a review of a road, but observed that the
practice was declaimed against, except where fraud appeared. VII
Pennsylvania Archives (2 Series), 254.

[612] 3 Smith’s Laws of Pennsylvania, 521, § 22. See also § 25 of the
act of June 13, 1836, P. L. 551.

[613] P. L. 551.

[614] Act of May 8, 1889, P. L. 129.

[615] Section 5 of the act fixed the maximum breadth of a public road
at 50 feet and of a private road at 25 feet. The maximum breadth of a
public road is fixed at 80 feet by the act of June 7, 1907, P. L. 452.

[616] P. L. 164, § 1.

[617] P. L. 713; _Church Road_, 5 Watts & Sergeant’s Reports, 200
(1843).

[618] P. L. 422; _Greenwich Township Road_, 11 Pennsylvania Reports,
186 (1849).

[619] P. L. 645.

[620] _Bridgeport & N. C. T. Road_, 171 Pennsylvania Reports, 312
(1895).

[621] 2 Dallas’s Laws of Pennsylvania, 389.

[622] 15 Colonial Records 331, November 24, 1787.

[623] 16 Colonial Records 26, March 14, 1789.

[624] 16 Colonial Records 466, September 28, 1790.

[625] Constitution of Pennsylvania, 1874, Article III, § 7.

[626] Addick’s Philadelphia Highway Acts.

[627] 2 Smith’s Laws of Pennsylvania, 48, § 10.

[628] P. L. 224.

[629] Act of September 29, 1787, 2 Smith’s Laws of Pennsylvania, 435;
Act of March 22, 1813; 6 Smith’s Laws of Pennsylvania, 37.

[630] P. L. 21.

[631] Act of April 21, 1855, P. L. 264, § 4.

[632] P. L. 1353. _In re Plan 166_, 143 Pennsylvania Reports, 414
(1891).

[633] P. L. 264, § 7, _Large_ v. _Philadelphia_, 35 Pennsylvania
Reports, 231 note (1859).

[634] _Twenty-Eighth Street_, 102 Pennsylvania Reports, 140 (1883).

[635] P. L. 129.

[636] P. L. 75; _Orthodox Street_, 1 Pennsylvania District Reports,
37 (1892).

[637] _Parrish Street_, 12 Philadelphia Reports, 638 (1878).

[638] _In re Plan 166_, 143 Pennsylvania Reports, 414 (1891).

[639] P. L. 1131.

[640] _Wyoming Street_, 137 Pennsylvania Reports, 494 (1891);
_Pittsburg’s Petition_, 138 Pennsylvania Reports, 40 (1891); _Donley_
v. _Pittsburg_, 147 Pennsylvania Reports, 348 (1892).

[641] P. L. 75; _Howell_ v. _Morrisville Borough_, 212 Pennsylvania
Reports, 349 (1905).

[642] P. L. 230.

[643] _Dorrance_ v. _Dorrancetown Borough_, 181 Pennsylvania Reports,
164 (1897).

[644] Acts of April 13, 1843, P. L. 218; April 5, 1844, P. L. 200;
March 26, 1846, P. L. 175; April 15, 1857, P. L. 205. See Act of July
2, 1901, P. L. 607, § 2.

[645] P. L. 283.

[646] P. L. 116; _Pusey’s Appeal_, 83 Pennsylvania Reports, 67 (1877).

[647] Pepper and Lewis’s Digest of Decisions, Vol. 18, col. 31570.

[648] _O’Connor_ v. _Pittsburg_, 18 Pennsylvania Reports, 187 (1851).

[649] _Mellor_ v. _Philadelphia_, 160 Pennsylvania Reports, 614
(1894); _Melon Street_, 182 Pennsylvania Reports, 397 (1897).

[650] P. L. 336.

[651] P. L. 290, since amended by the Act of May 13, 1909, P. L. 527.

[652] P. L. 188, supplied by the Act of May 1, 1905, P. L. 318.