
    John W. Turner et al. v. John Holleran et al.
    An appeal to the District Court from the assessment of damages made by commisioners appointed under Chapter 129 of the Public Statutes, only brings , before the court the question as to the propriety of the amount of damages awarded to the parties whose lands were overflowed.
    
      On such appeal, the defendant moved the court to set aside the order appointing the commissioners, which motion was denied, and from the order denying the motion, the defendant appealed. Held: That even if it is admitted that an appeal lies in such cases, it only lies after the entry of judgment.
    The plaintiffs presented to the judge of the District Court for the county of Scott, a petition for the appointment of commissioners, under Chap. 129, Pub. Stat., to make assessment of the damages resulting from the erection of a mill dam on certain lands owned by them, and its maintainance forever, by overflowing or otherwise, to real estate not owned by them or damaged by consent. The petition specified the defendants as the owners of such lands. Upon such petition said judge appointed three commissioners, who, after due notice given the defendants, met pursuant to previous appointment. The defendants appeared at this meeting and presented to the commissioners certain objections, in writing, to any proceedings under said petition, and the order appointing said commissioners. The commissioners, after making examination, and hearing the allegations and testimony of the parties interested, made a separate assessment of the damages resulting to each, and filed their report. The defendants appealed to the District Court; when the appeal came on to be heard, the defendants moved upon the petition and papers on file, to* dismiss the petition, and to vacate the order appointing the commissioners. The court denied the motion, and the defendants appeal from the order denying the same, to this court.
    Henry Hinds, for appellants.
    L. M. Brown, for respondents.
   By the Gowrt

Wilson, Ch. J.

The appeal in this case, from the assessment made by the commissioners, only brought before the District Court, the question as to the propriety of the amount of damages awarded to the parties whose lands were overflowed. Comp Stat. 818, -Secs. 10 and 13. That court, therefore, was right in denying the motion to set aside the order appointing commissioners.

But aside from this objection, the appeal must be dismissed, for the reason that the order appealed from is not appealable. It can only be claimed that an appeal from this order is authorized by the 6th Sub. of Sec. 11, Chap. Yl, Comp. Stats., which provides that an appeal may be taken from a final order affecting a substantial right made in a special proceeding. No legal question involved in the proceeding was definitely settled, nor was any substantial right of any of the parties affected by the order appealed from. The proceeding still remained pending in the court, and the right to review all the questions involved was unimpaired by the decision of said motion. The final order mentioned in this section refers to final orders in the nature of judgments, and if it is admitted that an appeal lies in such cases, it only lies alter the entry of judgment, where both the judgment and intermediate order are open for review.

Appeal dismissed.  