Opinion by
Lewis, C. J., Beatty, J., concurring.It is claimed by appellants that the Court below erred in issuing the restraining order against the defendants without notice to them *273of the intention to do so. But there is nothing in the record showing that such was the fact. It appears that after the filing of the remittitur of this Court in the Court below the restraining order was issued; but whether notice had been given to the defendants or not does not appear. In this respect the record shows no error. As all presumptions are in favor of the regularity of the proceedings of Courts of record, error to be available on appeal must be affirmatively shown.
We cannot presume that no notice was given to the defendants that would be in direct conflict with the rule of law above referred to. If the appellants wished to take advantage of that point upon appeal, they should have prepared a statement showing that no notice was given. Here there is no statement, and the appeal is simply from the judgment. The second point made by appellants is equally unavailable upon this record. Without saying whether it was necessary for the plaintiff below to introduce proof of the facts set out in his bill before a decree could properly be entered in his favor, we may say that the record does not show whether evidence was introduced or not: hence this point is open to the same objection as the first.
There is, however, an error in the judgment which will necessitate a modification of it. The injunction granted by the Court is final and perpetual, so that under no circumstances could the defendants hereafter proceed with the opening of the road in question, even if compensation should be tendered to the plaintiff for the land taken for that purpose. Such an injunction is not warranted by the pleadings or the law; for the defendants have an undoubted right to open the road by virtue of the provisions of an Act entitled “ An Act in relation to Public Highways,” approved March 9, a.d. 1866. (Laws of 1866, p. 252.) But this decree perpetually enjoins the defendants from opening the road through the premises of the plaintiff, whilst the only relief which the plaintiff’s bill entitles him to is an injunction against the defendants until they have complied with certain requirements of the law above referred to. The decree must therefore be so modified as only to enjoin the defendants from opening the road in question until the probable damage which he will suffer thereby shall be ascertained, and provision made for the payment thereof, as required by section 5, of the Act of March 9th, *2741866. When the requirements of that Act are complied with, the road can be opened. But as the record brought before us shows no error but this in the judgment, we cannot reverse but only modify it as above stated.
The Court below will therefore modify the decree as we have suggested. The appellants are entitled to their costs.