Decided 17 September, 1900.
On Motion for Rehearing.
Mr. Justice Wolvertondelivered the opinion.
6. The plaintiffs, by their petition for rehearing, present the further and additional question that the county court was powerless to establish the road in question without payment of the damages awarded by the viewers being first made. The statute provides that “ the viewers * * * shall make a report * * * of the public road so located, and the amount of damages assessed by them, if any, and the person or persons entitled to such damages ; and if the county court is satisfied that such report is just, and after payment by the petitioner of the costs of locating such road and the damages assessed by the viewers, the court shall order such report to be confirmed, and declare such road to be a public road, and the same shall be recorded as suchHill’s Ann..Laws, §. 4077. After the preliminary recitals, the court concluded with the following entry: “It is hereby ordered, ad*379judged, and decreed that the report of said viewers be, and the same is hereby, approved and confirmed in all respects ; that the said road be, and the same is hereby, decreed to be a road of public easement and a public county road, and the same is hereby established and ordered opened in accordance with the report of said viewers, upon the payment of the damages in said report set forth, and the costs and expenses of this proceeding.” It is stoutly urged that here is a taking of the appellants’ property without just compensation first assessed and tendered, contrary to the inhibition of the state constitution (Article I, § 18), but counsel have evidently misconceived the effect of the order. There was no appropriation of property, except upon condition of the payment of costs and damages. By its terms, there was no establishment of the road, nor could it be opened, except upon payment as required thereby. Hence the order or judgment as entered does not operate as a taking of appellants’ lands without just compensation first assessed and tendered. The purpose of the statute is to require the payment of the costs and damages before any road or public easement can be established, and, while this provisional entry may not be in full accord with the statutory intendment, yet it was calculated to command compliance with the requirements of the law prior to any appropriation. The record shows that the costs and damages were paid into the hands of the' county clerk upon the ninth day after entry of the order or judgment, and before the adjournment of the term, so that there could have resulted no possible injury to the appellants. The petition for rehearing is denied. Rehearing Denied.