Beers v. Raub

WIEAND, Judge,

dissenting:

I respectfully dissent. Proceedings to open private roads and proceedings to recover damages therefor continue to be governed by the Act of June 13, 1836, P.L. 551, §§ 11, 12, 16, as amended, 36 P.S. §§ 2731, 2732, 2736. The proceedings to open private roads and the proceedings to recover damages therefor are separate proceedings. Indeed, the Supreme Court has held that the commencement of proceedings for the assessment of damages waives defects in the order confirming the opening of the private road. Weaver’s Road, 45 Pa. 405 (1863). The “bifurcated course” which the two proceedings must take has not been altered by the establishment of a unified judicial system. The proceedings remain separate and distinct in order to enable the trial court to determine all legal issues involved in a proceeding to take one person’s land for the opening of another’s private road. Only when it has been determined finally that a private road is to be opened across the lands of another does it become necessary to estimate damages “in the manner provided in the case of a public road.” Act of June 13, 1836, P.L. 551, § 16, as amended, 36 P.S. § 2736.

I would hold, therefore, that an order determining finally that a private road shall be opened over the land of another is final and appealable. See: In re Private Road in Monroeville Borough, 204 Pa.Super. 552 , 205 A.2d 885 (1964); Mattei v. Huray, 54 Pa.Commw. 561, 422 A.2d 899 (1980). *528 Cf. Eminent Domain Code of June 22, 1964, P.L. 84, § 517, 26 P.S. § 1-517. Only if it is finally determined that appellants’ land was properly taken for appellee’s private road will it become necessary to estimate the damages which appellants have sustained as a consequence thereof. I would reach the merits of the instant appeal and render a decision thereon.