The Board of Commissioners of Fulton County v. The Board of Commissioners of Henry County.
County ditches — Amount to be paid by upper to lower county— Section JfSIO-S, Revised Statutes — Error will not lie to action of the probate court appointing freeholders, when.
Error will not lie to the action of the probate court appointing freeholders, as provided by Section 4510-3 of the Revised Statutes, to estimate and report the amount which should be paid by the upper to the lower county, for the benefits of an outlet ditch.
(Decided February 5, 1901 )
Error to the Circuit Court of Henry county.
On the 29th day of March, 1899, the commissioners of Henry county made an application to the probate court of that county, in the form of a petition against the commissioners of Fulton. county, under Section 4510-2 of the Revised Statutes. .The petition states, in substance, ,that proceedings had been commenced and carried on before the Henry county commissioners for deepening and straightening a watercourse known as Turkeyfoot creek, which furnished the only outlet for a drain and watercourse extending through certain sections of land in Fulton county, that county adjoining Henry, and being the upper county. It further states that the proposed improvement will furnish a better outlet for the Fulton county drain, and better drainage for the lands in that county; and, that the steps required by law had been taken to obtain a joint meeting of the commissioners of the two counties, in order that they might agree upon the amount- which should be paid by the commissioners of Fulton county for the benefit re-*161suiting to it from the improvement referred to, but that at the meeting held for that purpose there was a failure to agree. The' prayer of the petition is for the appointment by the court, as provided in Section 4510-3 of the Revised Statutes, of two disinterested freeholders, to act with a like number to be appointed by the probate court of Fulton county, as a committee to estimate and report to the court the amount that should be justly , paid by Fulton county for the use and benefit of the outlet ditch, and for further proceedings authorized by the statute. The commissioners of Fulton county were served with process, appeared and plead, and the court, after a hearing, made an entry on its journal appointing two disinterested freeholders to act on the estimating committee, in accordance with the provisions of the statute.' Without awaiting any further steps in the proceeding the commissioners of Fulton county instituted a proceeding in error in the court of common pleas to reverse the action of the probate court in making the appointment. The common pleas affirmed the probate court, and on error prosecuted to the circuit court, the common pleas was affirmed; from which latter judgment error is brought here.
William H. Fuller and William II. Handy, for plaintiff in error.
H. R. Ditmer and W. W. Campbell, for defendant in error.
By the Court :
It is entirely clear that the record shows no judgment or final order of the probate court that can be reviewed on error. The statute provides for further proceedings subsequent to the appointment of the *162committee, which may result in the complete exoneration of the upper county and of the lands therein from any burden for the proposed improvement of the water course, or in a final order or judgment imposing such burden. If the former result shall be reached through the report of the committee that the upper county should bear no part of the burden, there can be no ground for a proceeding in error in its behalf, nor can there be until such burden is imposed by the judgment or order of the court.
Judgment affirmed.
Shauck, C. J., Spear, Burket and Davis, JJ., concur.