A little attention to the nature of the proceeding on appeal, and to the powers and duties of the probate court in the premises, will solve many of the doubts that have been suggested in the argument. The appeal did not constitute the probate court a court of error to review the proceedings of the trustees, or authorize it to pass upon any supposed errors ■or irregularities therein. Miller v. Webber, et al., 1 Cir. Ct. R. 130. Nor did the appeal vest that court with chancery powers, to annul or restrict the action of the trustees as being in excess of the authority conferred by the statute, or invoked by the petition.
The powers of the probate court, in a proceeding of this character, are much more clearly defined than are those of the trustees. Chapter 2 of title 6 of the Rev. Stats, is the the only source of authority in the premises, whether of the trustees originally or the probate court on appeal. When Mrs. Jones took her apipeal from the order of the trustees to the probate court, she recognized the binding and conclusive character of that order, except as it might be affected by the exercise of the appellate jurisdiction which she invoked. The mode of taking the appeal, and the duties of the probate judge and the jury thereafter, are prescribed in sections 4533 to 4539. The first three of the sections named relate to the mode of taking *484the appeal; and no question is made here under any of their provisions.
Section 4536 provides, that the probate judge shall hear and determine all preliminary questions retating to the case, and if he find that the appeal has not been perfected acccording to this chapter, he shall dismiss’tho case at the cost of the appellant, and certify such dismissal to the trustees of the township. Sec. 4437 provides, that if the probate judge finds the preliminary proceedings for appeal in substantial conformity with the provisions of the chapter, he shall select a jury and notify them of their election. These provisions restrict the inquiries of the probate judge to the preliminary proceedings pertaining to the appeal. He is to ascertain whether they are in substantial conformity with the provisions of the chapter. If they are not, the statute provides that his order shall dismiss the appeal. If they are, it requires him to call a jury.
The subjects of investigation by the jury, are clearly pointed out in section 4538 and 4539. Before any testimony shall be given, except the plat and field notes of the ditch, if there be any, and the title papers of the claimants if produced, they shall proceed to examine the ditch as established or ordered, and the property of the several claimants taken therefor or alleged to be injured thereby. After such examination and the hearing of the testimony, they are to render a verdict in writing, thereby finding:
1st, whether it will be conducive to the public health, convience or welfare, to cause the proposed ditch to be established or located; 2d, if they find in favor of the location, the amount due claimants as compensation ; and, 3d, the amount due all parties claiming the same.
They are not to take the petition to the trustees as their guide, but the plat and field notes. They are not to proceed to examine the ditch described in the petition, but “ the ditch as established or ordered.” Whether the ditch so established or ordered will be conducive to the public health, convenience, or welfare, is the question which they must first determine. That this ditch may differ from that petitioned for, is plainly contemplated by the statute. Section 4520 provides, that the trustees may change the route qn their own motion, and sec*485tion 4525 that they may change it on the written request of any person interested in its location. The appeal is from the order of the trustees locating the ditch, and the propriety of the ditch thus ordered is the sole subject of inquiry on appeal.
L. Geiger and T. J. Frank, for plaintiffs in error. John S. Leedom and Geo. M. Eichelberger, contra.In this statutory proceeding the probate court had only such authority as is conferred upon it by the statute. We do not mean to intimate that the trustees were without power under the statute to make the order in question, or that the exercise of that power was not invoked by Batdorf’s petition; but if both points are conceded to the defendant in error, it is clear that they were not available on the trial of this appeal.
By excluding the testimony offered by the plaintiffs in error touching the effect on the public health of the ditch as ordered by the trustees, the probate court withheld from the jury information upon the question which the statute made it their duty to determine; and by the admission of evidence as to the effect of a ditch supposed to be contemplated in Batdorf’s petition, it diverted their attention to a question which they had no authority to determine. And so, by the giving and refusing of instructions, they were forbidden to make the finding which the statute enjoins.
The judgment of the court of common pleas will be reversed ; and for the errors indicated that of the probate court will be reversed also; and the cause will be remanded to the probate court for further proceedings.