The agreed facts in this case fully sustain the finding and judgment of the court.
I shall not again here discuss any of the principles applicable, as they have been presented in the case of Alvord v. Ashley, ante, 363, and authorities there referred to.
The cases referred to in 3 Whart. R. 105, 4 Watts and Serg. R. 40, 1 Penn. State R. 356, 5 Penn. State R. 101 and 515, and 4 Penn. State R. 337, were cases on appeal dir en* from the proceedings in laying out public highways, in which the court very properly required the provisions of the law to be complied with, in relation to fixing the width of the road, before it would sanction an order for its establishment and opening. These cases differ widely from the case presented in this record.
Small v. Eason, 11 Iredell R. 94, was an unauthorized attempt of a supervisor to widen a highway which had a fixed legal width.
The case of White v. Conover, 5 Blackf. R. 462, must be put upon the same principle as the Pennsylvania cases, because the third was a spegial plea, alleging the establishment of the locus in quo, as a highway under the statute, and should consequently show the same that would be necessary upon appeal from the original proceedings, when brought before the court with power to try it, as an original case.
But when the superior court sits merely as- an appellate court, and the inferior court had full jurisdiction, the superior court will presume in favor of the judgment of the inferior, that the road was of the proper width. Lawton et al. v. The Commissioners of Highways, 2 Caines R. 179.
Where the proceeding is collaterally attacked, a like presumption must be indulged, and the proof thrown upon the plaintiff.
Judgment affirmed.