#### *Hill v. Salem and Pepper’s Ferry Turnpike Company.*

August, 1842,

Lewisburg.

(Absent Brookk, J.)

Appeals—-Matter of Right—Roads—Construction of Statute.†—Construction of the act of April 16,1881, declaring that appeals to the circuit courts shall be demandable as of right from the orders of the county or corporation courts in controversies concerning mills, roads, or the like.

Same--Same—Same,-Where, upon the application of a turnpike company, a county court appoints freeholders to assess damages to a tract of land which will result from opening a turnpike road through it, and upon a report being made by the freeholders, it is affirmed by the county court and entered of record, an appeal to the circuit court is not demandable of right from such order of the county court.

By an act of assembly passed the 21st of March 1838 (Sess. Acts 1838, p. 120,) a company was incorporated by the name and style of “The Salem and Pepper’s ferry turnpike company,” subject to the provisions of the act prescribing certain general regulations for the incorporation of turnpike companies, 2 R. C. p. 211, ch. 234.

Application being made by the Salem and Pepper’s ferry turnpike company to the court of Montgomery county, under the 7th section of the act last cited (p. 213, 14,) the court appointed five freeholders to assess the damages which wouldresult from opening the turnpike road through certain lands of James A. Hill and others. Upon a report being after-wards returned by the freeholders, Hill, for himself, and as agent for the other landowners, moved the court to quash the same ; but his motion Was overruled, and *no*good cause being shewn against the report in the opinion of the court, the same was affirmed and entered of record.

*Prom this order, Hill prayed an appeal to the circuit court ; and upon his entering into bond with security, conditioned to pay all costs which might be awarded against him, the county court allowed the appeal.

In the circuit court, the appellees moved the court to dismiss the appeal, upon the ground that the county court had *no*power to grant the same ; and this motion prevailed.

Thereupon, on the petition of Hill, a supersedeas was awarded by a judge of this court to the judgment of the circuit court.

The act of April 16, 1831, establishing the circuit superior courts, (Sess. Acts 1830-31, p. *SO,*§ 30,) declaring that appeals to the circuit courts shall be demandable as of right from the orders of the county or corporation courts in controversies concerning mills, roads, or the like, and in certain other cases which are specified, and then declaring- that all other cases may be brought before the circuit courts by writ of error or supersedeas, upon petition assigning error ; the question was, whether the order of the county court appealed from in this case was a.n order *in*a controversy concerning a road, within the meaning of the said act of April 1831?

3 The attorney general, for the plaintiff in error, said, that in this case, as well as in | cases under the act concerning public roads, 2 R. C. p. 233, ch. 236, the controversy is about the injury which the individual sustains by taking his private property for public uses ; that whether the public right be exercised at the instance of a turnpike company or a county court, the case is not varied ; it is still a public proceeding. The act prescribing regulations for the incorporation of turnpike companies does not regulate *152■ the mode of taking appeals ; and in the absence of any special regulation, *the general law allowing appeals in controversies concerning roads ought to govern the case.

M’Comas was counsel for the defendants in error,

but did not argue the case.

*

For monographic note on Appeal and *Brror, see*end of case.

†

Appeals—flatter of Right—Roads.—See *foot-notes*to Hancock v. Richmond and Petersburg R. Co., Gratt. 326; Trevilian v. Louisa R. Co., 3 Gratt. 326; Chesapeake *&*Ohio Canal Co. v. Hoye, 2 Gratt. 511. See monographic *note*on “Appeal and Error” at end of case.

The principal case is cited in Chesapeake & Ohio Canal Co. v. Hoye, 2 Gratt. 522, 523; Senter v. Pugh 9 Gratt. 261; Wheeling Bridge & Terminal Ry. Co. v. Wheeling Steel & Iron Co., 11 W. Va. 751, 24 S. E. Rep. 652.

PER CURIAM.

The judgment of the circuit court is affirmed.