(after stating the case.) Whatever issues of fact are made in the pleading should have been framed and settled by the jury, and it was too late to raise them after the verdict upon the one inquiry agreed on by the counsel of the respective parties at the trial before the Judge.
The exceptions are themselves untenable, at least at the stage in the proceeding at which they were filed :
1. No issue was made as to the plaintiff’s title when the aid of the jury was required, and the form of that submitted assumes the plaintiff’s ownership of the right of way over the land to be relieved, and the testimony set out is confined to that issue. No objection appears to have been taken to the Clerk’s order appointing the commissioners, and *11this is necessarily predicated upon the relations of the parties to the action as land owners, for it could not be made unless the petitioner had land to be drained.
The second and third exceptions are matters belonging to the commissioners, whose finding of fact must stand, as would a jury verdict, unless set aside, and then they would have to go over their work again. The' exceptions cannot now be heard.
The appeal therefore to this Court cannot bring up for review the errors now assigned, inasmuch as the proper time for noting the exceptions, if any there were, was not made use of, and the appeal is improvidently taken. But inasmuch as dismissing it and affirming the judgment produce the same result in leaving the judgment in full force, it is. not necessary to pass upon the particular disposition of the case and the right of appeal at this stage of the proceeding, which has progressed upon the assumption of the respective ownership of the adjoining tracts to a final result.
We therefore affirm the judgment.
Affirmed.