John C. Arp and Mildred K. Arp, Trustees (Arp), appeal from Judgment and Decree Granting Possession, entered by the district court of Laramie, County, Wyoming, in a condemnation proceeding brought by the State Highway Commission of Wyoming (Commission). The proceeding was brought to obtain title to and possession of certain land belonging to Arp, situated in the City of Cheyenne, Wyoming, it being the apparent intention of the Commission to use these lands as part of a limited-access highway facility connecting Interstate Highway 80 with downtown Cheyenne. Arp contested the necessity and good faith of the taking and now seeks review of the adverse ruling without completion of the proceeding. Following the docketing of this appeal and the filing of briefs upon the merits of the case the Commission filed motion to dismiss upon the ground that there was no appealable order. We permitted the matter to be orally argued on all questions but after consideration are convinced that the order herein entered was not a final order within the meaning of our rule and the previous decisions of this court.
Our present Rule 72(a), W.R.C.P. provides in pertinent part:
“Rule 72. General Provisions, (a) ‘Final Order’ Defined. A final order is: (1) an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment; (2) an order affecting a substantial right, made in a special proceeding, or *738upon a summary application in an action, after judgment; * * 1
Two precedents of this court clearly hold that an order for taking in a condemnation proceeding is not an appealable order: Hardendorf v. Board of County Commissioners of Fremont County, 73 Wyo. 1, 267 P.2d 747 (1954), and Big Horn Coal Co., Inc. v. Sheridan-Wyoming Coal Co., 67 Wyo. 300, 224 P.2d 172 (1950). The only question concerning the views therein expressed is that neither case specifically refers to § 3-5301, W.C.S. 1945, which became a part of our Code of Civil Procedure by Ch. 60, § 778, S.L. of Wyoming, 1886. This section was taken from the Ohio Code. Despite the fact that there is no specific mention of the statute in question, we hold that the two above-mentioned cases must stand as a construction of the law of our statute at the time of the adoption of the rules, and we do not think that we should now reach a different result by saying that this court was not aware of the statutory definition of final order because it did not specifically mention the same statute.
As indicated in Big Horn Coal Co., Inc., supra, 67 Wyo. at 310, 224 P.2d at 176, this court was familiar with the treatment given by the Supreme Court of Ohio to the question of whether an order determining the preliminary questions involved in an eminent-domain proceeding (including the necessity) was a final order, and refers at some length to Ornstein v. Chesapeake & O. Ry. Co., 123 Ohio St. 260, 174 N.E. 772 (1931), which in turn referred to the earlier Ohio case of Pittsburgh, Cleveland & Toledo Rd. Co. v. Tod, 72 Ohio St. 156, 74 N.E. 172, in which it had been held that “determination of preliminary questions by the probate judge is not a final judgment, any more than is an order sustaining or overruling a demurrer.” In the later case constitutional questions were raised as to a procedure that permitted the condemnor to appeal from an order denying the right to take by condemnation, while at the same time refusing to permit the condemnee to appeal from an order for such condemnation and whether this was a denial of equal protection of law. The claim was rejected by the Ohio court and appeal from this decision to the Supreme Court of the United States was dismissed for want of jurisdiction in Ornstein v. Chesapeake & Ohio Ry. Co., 284 U.S. 572, 52 S.Ct. 14, 76 L.Ed. 497. Grays Harbor Logging Co. v. Coats-Fordney Logging Co., 243 U.S. 251, 255-257, 37 S.Ct. 295, 61 L.Ed. 702, an eminent-domain case where it was sought to review ruling of a state supreme court that a plaintiff had a right to exercise the power of eminent domain, was cited and it was there said that the judgment was not a final judgment. We find this to be generally the law2 and while we appreciate that *739there may be a distinction between a final judgment and a final order, we think that this court was not concerned with the distinction in Big Horn Coal Co. or Harden-dorf.
Just as it is unfortunate that this court did not discuss § 3-5301 (which was later incorporated in the rules as 72(a)), it is also unfortunate that neither of the Ohio cases mentioned discusses the Ohio counterpart or our statute-rule. However, we think that the ruling of this court that the order disposing of the preliminary matters is not an appealable order is clearcut and § 3-5301 must have been incorporated into the rules in the context that an order of taking in an eminent-domain proceeding was not an appealable order. We should not now change that ruling.
Arguments pro and con can be made, but the possibility that the condemnor may occupy and use the premises while its right to take remains in dispute should not require us to reconsider what is the clearly established rule of this jurisdiction.
The motion to dismiss the appeal is sustained.
. As originally adopted in 1957 as part of the Wyoming Rules of Civil Procedure, Rule 72(a) was a direct tracing of the then-existing statute, § 3-5301, W.C.S. 1945, and read as follows:
“Rule 72. General Provisions, (a) ‘Final Order’ Defined. An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a final order which may be vacated, modified or reversed, as provided in these rules.”
The only change from the statute was the substitution of the closing words, “these rules” for the statutory words, “this chapter.” The rule has been amended since its original enactment but in no way that is pertinent to the pending case.
. E. g., Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194 (1893); Southern Ry. Co. v. Postal Tel. Cable Co., 93 F. 393 (4th Cir. 1899); Cordova v. City of Tucson, 15 Ariz.App. 469, 489 P.2d 727 (1971); Burlington & C. R. Co. v. Colorado Eastern R. Co., 45 Colo. 222, 100 P. 607, 16 Ann.Cas. 1002 (1909); Edwards v. Miami Shores Village, 160 Fla. 923, 37 So.2d 320 (1948); Chicago Land Clearance Comm. v. White, 409 Ill. 290, 100 N.E.2d 760 (1951); Freshour v. Logansport & Pleasant Grove Turnpike Co., 104 Ind. 463, 4 N.E. 157 (1886); State ex rel. Burnquist v. Fuchs, 212 Minn. 452, 4 N.W.2d 361 (1942); St. Joseph Terminal R. Co. v. Hannibal & St. J. R. Co., 94 Mo. 535, 6 S.W. 691 (1888); Great Neck Water Authority v. Citizens Water Supply Co., 12 N.Y.2d 167, 237 N.Y.S.2d 331, 187 N.E.2d 786 (1962); American Union Telegraph v. Wilmington, Columbia and Augusta R.R., 83 N.C. 420 (1880); Wrightsman v. Southwestern Natural Gas Co., 173 Okl. 75, 46 P.2d 925 (1935); Sink*739ing Spring Water Co. v. Gring, 257 Pa. 340, 101 A. 732 (1917); Williams v. McMinn County, 207 Tenn. 585, 341 S.W.2d 730 (1960); Ludlow v. City of Norfolk, 87 Va. 319, 12 S.E. 612 (1891); Wheeling Bridge & Terminal Ry. Co. v. Wheeling Steel & Iron Co., 41 W.Va. 747, 24 S.E. 651 (1896); and Manns v. Marinette & Menominee Paper Co., 205 Wis. 349, 235 N.W. 426 (1931), rehearing den. 205 Wis. 349, 351, 238 N.W. 624 (1931).