
    *Hancock v. Richmond and Petersburg Railroad Company.
    October Term, 1846,
    Richmond.
    (Absent Brooke, J.)
    i. Appeals — flatter of Right — Roads.—Appeals as of righ t from orders of the County Court in controversies concerning- roads, only exist where the controversy is concerning- the establishment of a road ; and not where it is a collateral controversy, concerning the damages occasioned by a road already established.
    
    2. Same- Order Interlocutory — Circuit Court. — Where the order of the County Courtis interlocutory, and not final, it cannot be revised by the Circuit Court in any mode of proceeding.
    In 1837, the County Court of Chesterfield, on the motion of the Richmond and Peters-burg Railroad Company, appointed commissioners to assess the damages which would be sustained by William Hancock by the passage of their road through his land. These commissioners subsequently made a report to the Court; and the Railroad Company having moved the Court to affirm the report, the Court overruled the motion, and disaffirmed it. From this order of the County Court disaffirming the report, the Railroad Company appealed to the Superior Court; and that Court reversed the order of the County Court, and sent the cause back with directions to affirm the report. From this order of the Superior Court, Hancock applied to this Court for a super-sedeas, which was allowed.
    *Stanard and Bouldin, for the appellant.
    Rhodes and Macfarland, for the appellee.
    
      
      AppeaIs — Matter of Right — Roads.—Por the statement in the first headnote, the principal case is" cited in Miller v. Little Kanawha Nav. Co., 32 W. Va. 49, 50, 9 S. E. Rep. 59 ; Umbarger v. Watts, 25 Gratt. 179; Jeter v. Board, 27 Gratt. 919; Rymer v. Hawkins, 18 W. Va. 318. See monographic note on “Appeals.”
      Same — Same—Same.—An appeal to the circuit court is demandable as of right from an order of a county court discontinuing a public road. Senter v. Pugh, 9 Gratt. 260, 261, citing and reconciling the principal case.
      The court, in Senter v. Pugh, 9 Gratt. 260, after laying down the rule just set forth, said : “This opinion is not in conflict with the cases of Hill v. Salem & Pepper’s Ferry Turnpike Co., 1 Rob. 263, and 
        Hancock v. Richmond & Petersburg R. Co., 3 Gratt. 328, in which it was decided that an appeal is not de-mandable of right to a circuit court from an order of the county court affirming or disaffirming the report of commissioners appointed to assess the damages which would result from opening a road established by an act of incorporation. It is true, that in the latter case, Baldwin, J., in delivering the opinion of the court, said ‘that the law authorizing appeals as of right from orders of the county courts in controversies concerning roads, is applicable only to a controversy concerning the establishment of a road.’ But these words are to be construed in reference to the case in which they were used, and cannot be regarded as implying that the law is not also applicable to a controversy concerning the discontinuance of a road.’* See foot-note to Chesapeake & O. Canal Co. v. Hoye, 2 Gratt. 523.
      Controversy Concerning Roadway — Meaning of Term. —The principal case is cited in Postal Tel. Cable Co. v. Norfolk & W. R. Co., 87 Va. 351, 12 S. E. Rep. 613, to the point that a controversy concerning a roadway, within the meaning of the statute, is one that relates to the establishment of a road, and not to a matter collateral thereto, as. for example, a controversy concerning the damages occasioned by a road already established, or the establishment on a road of a telegraph.
    
    
      
      in the abstract of the case of The Chesapeake and Ohio Canal Company v. Hoye, 2 Gratt. 511, it is said: ’’That anappealli^s from the judgmentof the County Court pronounced upon an inquisition taken,” &c. The word “appeal” is there used not as indicating the mode of appeal, but the fact that the case may be carried from the County to the Superior Court.
    
    
      
      Same-Order Interlocutory. — Where the order of the county courtis not final, but interlocutory only, it cannot be revised by the circuit court in any mode of proceeding. To this point the principal case is cited in Wheeling Bridge & Terminal Ry. Co. v. Wheeling Steel & Iron Co., 41 W. Va. 752, 24 S. El. Rep. 652; Pack v. C. & O. R. R. Co., 5 W. Va. 121; Tucker v. Sandridge, 82 Va. 534; Ludlow v. City of Norfolk, 87 Va. 321, 12 S. E. Rep. 612; Jeter v. Board, 27 Gratt. 918; Gillespie v. Coleman, 98 Va. 277, 36 S. E. Rep. 377. See foot-notes to Jeter v. Board, 27 Gratt. 910; Trevilian v. Louisa R. R. Co., 3 Gratt. 326, and monographic note on “Appeals.”
      In the case of Jeter v. Board, 27 Gratt. 920, the court was of opinion that there might be an appeal of right from an interlocutory order of a county court in a controversy concerning the establishment of a roadway. But in that case it was held that the order appealed from was in fact final, and not interlocutory ; so the question cannot be said to have been decided in that case.
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the law authorizing appeals as of right from orders of the County Court in controversies concerning roads, is applicable only to a controversy concerning the establishment of a road, and not to a collateral controversy concerning the damages occasioned by a road already established; and that in such collateral controversy, the order of the County Court can be revised by the Circuit Court only by means of a writ of superse-deas ; and that where the order of the County Court is not final, but interlocutory only, it cannot be revised by the Circuit Court in any mode of proceeding. It is therefore considered by the Court that the said judgment of the Circuit Court is erroneous, and that the same be reversed and annulled, with costs. And this Court proceeding to give such judgment as the Circuit Court ought to have rendered, it is further considered that the appeal from the order of the County Court be dismissed, as having been improvidently allowed, with costs to the appellee there. And it is ordered that the cause be remanded to the said Circuit Superior Court, and from thence to the County Court for further proceedings.  