This was an attempt by the appellees, under the fifteenth section of the act of May 11th, 1852, 1 G. & H. 509, to assess damages against the appellant for the construction of its road over and through the lands of the appellees. The railroad company had not fixed [filed] any instrument of appropriation, and until that was done the land-owners could not take any steps under the acts above cited. Its very terms preclude such a construction. The demurrer to the petition should have been sustained, as also the motion to dismiss the proceedings. We have a statute, 2 G. & H. 315, sec. 706, etc., under which either party may have an assessment of damages, but the proceedings under the two statutes are very different. Under the former, three appraisers are to be appointed, who are to act, etc.; while under the latter, there is to be a jury empanelled, of not less than six or more than twelve, sworn by the sheriff, etc.

The judgment is reversed, at the costs of the appellees, with directions to sustain the demurrer to the petition, and to dismiss the case.