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experts, specially trained in the handling of those difficult and intricate problems arising out of the devolution of property by death. The name of the court today indicates but a small part of its functions, but is an historic illustration of the way in which great institutions sometimes grow from small beginnings.


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. 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

1 Woolwych on Ways, 6.

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."1

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."2

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:

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“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

1 England in the Eighteenth Century, Sidney, Vol. II, 3. England in the Eighteenth Century, Sidney, Vol. II, 6.


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.”ı

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.2 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. 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

1 Coke on Littleton, 56 A.
2 Fitzherbert's Natura Brevium, 226.
3 King v. Warde, Croke's Reports (Charles I), 226 (1633).

one. "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."?

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.3 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

1 Ex parte Armitage, Ambler's Reports, 294 (1755).

2 III Blackstone's Commentaries, 259; Bonaparte v. Camden and Atlantic Railroad Co., Baldwin's Reports (U. S.), 205 (1830) at page 221.

3 13 George III, chapter 78, § 19; Davison v. Gill, 1 East's Reports, 64 (1800).

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