Opinion
(September Term, 1887.)
Appeal.
An order appointing commissioners to assess damages is interlocutory, and no appeal will be entertained until after final judgment upon the report of the commissioners.
( Telegraph Co. v. R. R., 83 N.C. 420; Comrs. v. Cook 86 N.C. 18; R. R. v. Warren, 92 N.C. 620; cited and approved, Click v. R. R., ante, 390, cited and distinguished.)
PROCEEDING for damages, tried at August Term, 1887, of CLEVELAND, before, MacRae, J.
W. P. Bynum for plaintiff.
Platt D. Walker for defendant.
This is a summary application of the plaintiff claiming damages from the defendant railroad company, occasioned by the location and construction of the railroad of the latter over and across the lands of the former, as allowed by the statute (Acts 1854 — 55, ch. 225, sec. 26; Acts 1872-73, ch. 75 secs. 9, 10, 15; The Code, secs. 1943-1946), in which the plaintiff prays that the court appointed commissioners to assess damages to him, etc. . The defendant filed its answer to the petition, denying the plaintiff's alleged rights, etc.
In term time the parties agreed upon and submitted the facts of the matter of the proceeding to the court for its judgment. Upon consideration, it made its order appointed commissioners to assess the damages, etc., to which defendant excepted and appeared to this Court.
The order appealed from is interlocutory, and in appeal lay at this stage of the proceeding from it. Upon the coming in of the report of the commissioners, appropriate exceptions thereto (432) may be filed by either or both parties, raising all questions affecting their respective rights involved, and upon the settlement of the same and final judgment of the court, either or both parties may assign error, and then appeal to this Court, bringing up for review all errors assigned in the record at any stage of the proceeding after it began.
This case is in material respects like Telegraph Co. v. R. R. 83 N.C. 420; Comrs. v. Cook, 86 N.C. 18; R. R. v. Warren, 92 N.C. 620.
They settle the course of practice in such proceeding as the present one, and sufficiently state the reasons for it.
That the defendant broadly denies the plaintiff's alleged rights and grievances, and the parties upon the facts, could not give the right of appeal at the present stage of the proceeding, because the order appealed from was nevertheless interlocutory, and an appeal from the final judgment would bring up all questions arising in the course of the proceeding, without denying or impairing any substantial rights of the defendant.
The order appealed from is very different from that in the similar case of Click v. R. R., ante, 390; in the latter the court denied the motion for an order appointing commissioners, and dismissed the proceeding, thus putting an end to the right of the plaintiff therein, and therefore an appeal lay in that case. Appeal dismissed
Cited: R. R. v. King, 125 N.C. 455; Navigation v. Worrell, 133 N.C. 94; R. R. v. Newton, ibid., 140; R. R. v. R. R., 148 N.C. 64; School Trustees v. Hinton, 156 N.C. 587; Bradshaw v. Bank, 172 N.C. 633.
(433)