The opinion in the case between the same parties with positions reversed disposes of the similar *Page 499 questions involved in this appeal and the repetition of what is there said and held needless. We advert to a single point not made in the argument, to avoid any inference from our silence to notice it. It is as to the right of appeal from the order appointing commissioners to lay out the right of way and define the limits of the land required, and also to assess the damages for taking the same. The right of appeal is expressly given to persons over whose lands the railway or its branches may pass, after the commissioners have acted and their report has been confirmed, and who may be "dissatisfied with the valuation of the commissioners," by the 9th section of the charter of the plaintiff company. Acts 1872-73, ch. 75.
This provision for an appeal at this stage of the proceeding would seem to imply an absence of such right at an earlier period, which if allowed might be exercised to the embarrassment and delay of the enterprise, and be attended with other serious inconveniences. We have accordingly held at this term that an appeal does not lie from an order appointing commissioners under proceedings instituted by telegraph companies, in the case of The U. Tel. Co. v. W. W. R. R. Co., ante, 420.
Nor do we see how such an order "affects a substantial right claimed" within C. C. P., $ 229, since the appeal which is allowed will bring for review the legality and regularity of the order of appointment if there be exceptions thereto, as well as of the confirmation. There is no error and this will be certified to the court below.
No error. Affirmed. *Page 500