
    *Hollins v. Patterson. Crenshaw v. Same.
    November, 1835,
    Richmond.
    Roads — Order for Alteration of — Setting Aside Order at Subsequent Term. — A county court, without petition or any of tile proceedings required by the statute concerning- roads, makes an order, summarily on motion, for an alteration of a public road : flEUD, the court, as it had no jurisdiction to make such order, may, at a subsequent term, at the instance of a party grieved, and on hearing of the party on whose motion the alteration was ordered, set aside the order for the alteration, and re-establish the old road.
    Same — Same — Order Founded on Judge’s Own Knowledge, — Upon a controversy in court, touching the alteration of a public road, the evidence leaves it doubtful, whether the old road or the new’ one is preferable, and the judge, upon his own knowledge of facls, and declaring such to be the ground of his judgment in the order, rejects the application for the new road: Held, there was no error in the judge founding his order on his own knowledge, though that knowledge was not stated by him on oath as a witness in the cause.
    The county court of Campbell, — without any of the proceedings being had, directed by the statute concerning roads and landings, 2 Rev. Code, ch. 236, $ 1, 2, 3, p. 233, 4, in cases of applications for new roads, or for the alteration of old ones,— made an order, “on the motion of George Hollins, that the new road running by the Bolling Spring tavern, turning out of the old road at Patterson’s hill, be established, and the old road discontinued.” About two years afterwards, the court on the motion of Alexander Patterson, ordered, that Hol-lins should be summoned to shew cause, if any he could, why the former order made on his motion, establishing the new road above mentioned, should not be set aside. And upon the return of the summons, both parties appearing by counsel, the court made an order, that “the first order establishing the new road and discontinuing the old one, should be rescinded.” Prom this order Hollins appealed to the circuit court of Campbell, which ^'affirmed it; and then he appealed from the order of affirmance to this court.
    Upon this, Crenshaw, — who, and not Hollins, was in fact the owner of the Bol-ling Spring tavern, and of the land on which the new road had been established on the motion of Hollins; — preferred a petition to the county court, praying the same alteration of the road which Hollins had proposed; and thereupon, the court appointed viewers to report the conveniences and inconveniences, as well to individuals as to the public, that would result from the proposed alteration. The report of the viewers being made and returned, Patterson appeared to oppose the proposed alteration of the road; and the court, upon a hearing of both parties by counsel, rejected Crenshaw’s petition for the establishment of the new road, and ordered, that the old road should be established. Crenshaw appealed to the circuit court; where many witnesses were examined for both parties, touching the comparative conveniences and inconveniences of the old and the new road; and it was somewhat doubtful, on which side the weight of evidence (which was all stated on the record) preponderated. The order made by the circuit court, stated, that the judge of the court, from his own knowledge of the ground on which the old and the new road ran, was of opinion, that the judgment of the witnesses who preferred the old road, was founded on better reasons, than that of the witnesses who preferred the new road; and, therefore, the court affirmed the order of the county court. From this order of affirmance, Crenshaw appealed to this court.
    Johnson, for the appellants in both the cases,
    said, 1. As to that of Hollins v. Patterson, that however irregular the first proceedings might be, in which the county court, summarily, on Hol-lins’s motion, ordered the new road to *be established and the old one to be discontinued, it was not competent to that court to rescind the order, at a subsequent term: that the proper course for any person discontented with the alteration, would have been, to apply by petition to the court, to alter the road back again from the new to the old track; and this, he said, plainly resulted from the provisions of the statute. Upon such a petition, the court would have appointed viewers, and upon their report, summoned the proprietors of the land, awarded a writ of ad quod damnum, if desired by the proprietors, and so proceeded regularly’ to hear and decide the controversy upon its merits. 2. The main question, in the other case of Cren-shaw v. Patterson, was a question of fact, depending on the evidence, which of the two roads w^.s, all circumstances considered, preferable? And he contended, that the evidence shewed, that the new road was preferable. The judge of the circuit court seemed to have thought the evidence for and against the alteration, in itself, nearly if not exactly equipollent; and he decided the cause upon his own knowledge of the ground on which both roads ran. But the ' judge’s knowledge was matter of evidence, and ought to have been given, like all the other evidence, on oath.
    John Robertson, for the appellee,
    maintained, 1. that the last order of the county court in the case of Hollins v. Patterson, rescinding its first order by which the new road proposed by Hollins was established, was regular and right; for, he said, the court had no jurisdiction to make an order altering a public road, when there was no cause or proceeding pending in court, in which any such order could be made; and as it was impossible for any person dig-contented with or aggrieved by this erroneous and unauthorized order, to prosecute a supersedeas or writ of error to correct it, because there was no party to the proceeding on the record but the applicant himself; therefore, no alternative was left, but to hold *the order valid, illegal as it was, or to admit the competency of the county court to rescind it. '2. As to the question of fact in Crenshaw v. Patterson, he said, it ought to be conclusive, that both the county and circuit court, the judges of both of which were acquainted with the localities, and had the witnesses before them, held the old road preferable. In mill causes, where the testimony was doubtful, this court had always respected the concurring judgments of the county and circuit courts, tribunals sitting in the neighbourhood; Home v. Richards, 2 Call 507; Coleman v. Moody, 4 Hen. & Munf. 1, 18. The same principle, upon the like reasons, prevailed in road causes; Atkinson v. Ball, S Rand. 446. And as the opinions of the inferiour courts were respected, on the ground of the personal knowledge they were presumed to have opportunities of acquiring, it could be no objection to the order of the circuit court, that the judge stated, in express terms, his personal knowledge of the subject, as a ground of his decision.
    
      
      Roads — Order—Setting Aside on Motion at Subsequent Term. — Tie principal case is cited and approved in Whitehead v. Whitehead, 23 Gratt. 381; Yeager v. Carpenter, 8 Leigh 457.
      See also, the principal ca.se cited and approved in Lance v. McCoy, 34 W. Va. 419, 12 S. K. Rep. 729.
      Void Judgments — When May Be Vacated. — The principal case is cited in Morgan v. Ohio River R. Co., 39 W. Va. 24, 19 S. E. Rep. 591, to the point that a judgment not merely erroneous, but void, may be vacated at any time.
      See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   PJEJR CURIAM.

The orders, in both causes, are to be affirmed.  