delivered the opinion of the court,
In directing the payment by the petitioners of the damages assessed and reported, the viewers exercised a power which the law had not conferred on them. The Act of the 17th of May 1874 made it the duty of all persons appointed in the several counties of the Commonwealth to view or review any public or private road or bridge, to endeavor to procure releases from all claims for damages likely to arise from opening the road or building the bridge, and to assess and report the amount of the damages where releases could not be obtained. This act was general, and applied to all highways, except those laid down on plans of municipal corporations, the opening of which was under the control of the municipal officers. Rut its object was only to require the procurement of releases and the ascertainment of damages by the same viewers who should lay out a road or locate a bridge. In other respects, local legislation relating to highways was left undisturbed. The concluding clause of the act provided that the assessment should be conclusive, or be subject to appeal, review or modification, according to existing laws in the different counties of the Commonwealth. In the county of Allegheny, the duty of road-viewers was defined by the third sec*358tion of the Act of the 24th of February 1845, in terms almost identical with those used in the Act of 1874. After assessing damages, the viewers were required to “make report thereof,” and “return the same, together with all releases obtained, to the proper court.” They were not authorized to direct how, when or by whom the damages should be paid. The mistake, however, was not necessarily fatal to the report. The imposition of damages upon the petitioners could have been treated as surplusage, and set aside.
There was more serious irregularity in the approval of the report endorsed the 8th of June 1875, and in the two orders of the court made on the 25th of November 1875, and the 21st of July 1877. By the first of these orders, the report was confirmed, but it was directed that the order to open should not be issued until the damages should be paid. By the second, it was directed that the order to open should be issued at once, but that the road should not be opened on the lands of persons to whom damages had been awarded until payment of those damages should be made.' All this action was manifestly the result of haste and inadvertence. The fourth section of the Act of 1845 made it the duty of the court to examine carefully the amount of damages assessed, and to confirm the report if satisfied that the amount was such that the public interest would be subserved by its payment and the opening of the road. Upon confirmation, the damages were directed to be paid as provided by law. The section concluded with these words: “But if said court shall not be satisfied, the said report shall not be confirmed, unless the same (the damages) shall be paid first by the petitioners.” A conditional order of confirmation was not a compliance with the statute. This was decided in 1877, in a ease from Susquehanna county, to which the Act of 1845 was extended by the Act of the 8th of April 1846. There a report had been “ confirmed finally on payment of one-half of the damages awarded to Gr. W. Reese, within ten days.” It was held that the order was repugnant to the Act of the 13th of June 1836, and to the Act of 1845, since it put the record and effect of the decree in abeyance until payment of the damages, an act necessarily done in pais, as the law has made no provision for payment into court as an equivalent to payment to the party: In re Road in Lathrop Township, 1 Norris 126. The decrees made here were at least equally objectionable. Except under very peculiar circumstances, an attempt to open parts of a road under such an order as the last one would be impracticable. If dissatisfied with the award of damages, the court had simply to withhold confirmation until the petitioners should relieve the county by taking the burden on themselves.
The orders of the Court of Quarter Sessions made on the 8th of June 1875, the 25th of November 1875 and the 21st of July 1877, are reversed and set aside; and it is ordered that the record be remitted for further proceedings in that court.