Schuylkill County's Appeal

The opinion of the court was delivered,

by Thompson, J.

— It seems to me to be in order to consider the last exception first: and that involves the question of the liability of the county to pay the damage done to the owner of property by reason of laying out the road or highway in question, in the borough of Pottsville.

The road or street was ordered to be laid out and opened by proceedings in the Quarter Sessions of the county, commenced in 1853, and confirmed absolutely at June Sessions 1854, under the General Road Law of 1836. In was partly opened in that year, but not completely so until in 1859. At June Sessions 1860, Margaret A. Doman applied to the court for the appointment of viewers to assess the damages alleged to have been done to her. property, by reason of opening the road or street through it. The report of the viewers appointed by the court on that petition being confirmed, is now here on certiorari, and the exceptions to this proceeding are now to be considered.

Neither of the Acts of the 22d of April 1856, referred to by the plaintiffs in error, do we think have any operation in this case. The first of them, relating to “streets, lanes, and alleys in the borough of Pottsville,” expressly saves all proceedings begun before its passage. The second, which is a Supplement to the Act regulating Boroughs, is expressly prospective in its provisions in regard to proceedings in laying out and opening streets. These acts, therefore, do not affect the petitioner’s right to resort to the county for the damage done to the property by the opening of the street in question, if any were sustained.

The duty of the viewers is to be ascertained by reference to *463the Act of 1836. By the 6th section of that act, they are “ to view the premises and assess the damages, if any, which such petitioner may have sustained,” through whose land a public road shall have been opened. And by the 7th section, they are to report to the next Court of Quarter Sessions, when, if their report be confirmed, the amount of damages awarded shall be paid out of the county treasury.

The duty of the viewers is to deal with the question of damages. The question of location is not within their jurisdiction. They are to assess the damages done in opening the road complained of. Anything else in their report is coram non judice, and need not be regarded; and is for this reason neither conclusive in law nor fact, or any evidence whatever: 2 Saunders on Pl. & Ev. 260.

This, I think, is a sufficient answer to the position taken, that the road was not opened on the precise ground on which it was located. We have no evidence except the report as to that, and in that it is recited that certain parties present, two of the county commissioners and two persons representing the petitioner, alleged and admitted that the road was changed to run more at right angles, through the petitioner’s property, than when it was located, to suit the wishes of the borough authorities. Now, as the viewers were not appointed to find any fact of this kind, their report on the point is no evidence of the fact. There being no other evidence in the case to cover the point, it is not to be considered at all.

The viewers could only look at the road as opened, as was said of supervisors in McMurtrie v. Stewart, 9 Harris 322. There a supervisor attempted to open a road on different ground from that on which it had been originally opened, without any new order. He was sued for trespass and held liable, although the road was not opened originally on the right ground, and although he proposed to open it where it had been located. So here, the road being opened, it would remain until changed under proceedings for that purpose in court.

But even if we should pass the point suggested, the report does not allege that the road really was not opened where located, but only that four persons named admitted that it was not so opened. This was no evidence of the fact. That was only to be found in the survey or draft of the road.

But if all this were out of the case, the viewers only report that the admission was that the street had not been opened according to the draft, “but had been changed more at right angles through the property” of the petitioner. How much the divergence in its length, is not said. Whether the alteration was material, or so slight as to be disregarded on the principle of de minimis, and hence within the discretion of the supervisors *464or the borough authorities in opening, does not appear. As to this, see Furniss v. Furniss, 5 Casey 15.

These last views are not, in my opinion, essential, but are expressed to show that in the fullest extent of the arguments drawn from the reports by the appellants, there is nothing to raise a doubt of the accuracy of the court below in confirming the report.

Decree affirmed at costs of appellant.