Assuming that the matters complained of are susceptible of review by this court, the first question is whether our jurisdiction is dependent upon the appeal or the writ of error.
That a proceeding involving the exercise of the power of eminent domain is essentially but the assertion of a right legal in its nature has been determined. So, also, the decisions of this court have settled that a condemnation proceeding initiated before a court, conducted under its supervision, with power to review and set aside the verdict of the jury, and with the right of review vested in an appellate tribunal, is, in its nature, an action at law. Kohl v. United States, 91 U.S. 367, 376, 23 L. ed. 449, 452; Searl v. School Dist. No. 2, 124 U.S. 197, 31 L. ed. 415, 8 Sup. Ct. Rep. 460; Chappell v. United States, 160 U.S. 499, 513, 40 L. ed. 510, 515, 16 Sup. Ct. Rep. 397.
The proceedings provided for in the act of June 6, 1900, being of this character, it is, we think, manifest that the jurisdiction of this court can be exercised only by writ of error.
When both the proceeding by appeal and that by writ of error were allowed, the jurisdiction of this court to review the judgments and decrees of the court of appeals of the District of Columbia was regulated by § 233 of the Code of the District of Columbia. 31 Stat. at L. 1227, chap. 854. In effect that section was but a re-enactment of the then existing provisions of the 8th section of the act of February 9, 1893 [27 Stat. at L. 436, chap. 74, U.S.C.omp. Stat. 1901, p. 573], which act established the court of appeals of the District of Columbia. By said section of the Code the power of this court to review by writ of error or appeal the judgments or decrees of said court of appeals, excluding certain exceptional and enumerated cases, is limited to cases where the matter in dispute, exclusive of costs, exceeds the sum of $5,000; and such power to review is to be exerted only in the same manner and under the same regulations as theretofore prevailed before the organization of the court of appeals in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia.
Now, as it is settled by the authorities previously referred to that the proceeding in question was legal in its nature, and not one of equitable cognizance, and as it has also been settled that the jurisdiction of this court prior to the act of 1893, to review the final judgments or decrees of the supreme court of the District of Columbia, did not give power to review by appeal a matter not of equitable cognizance (Ormsby v. Webb, 134 U.S. 47, 64, 33 L. ed. 805, 812, 10 Sup. Ct. Rep. 478), it necessarily follows that we are without jurisdiction to review the action of the court of appeals of the District of Columbia on the appeal here taken, and that appeal must, therefore, be dismissed.
Thus disposing of the appeal, we come to consider the case on the writ of error. The errors assigned in the brief of counsel are as follows:
'The court below erred in sustaining the trial court:
'1st. In refusing to set aside the assessment because not supported by the evidence, and because contrary to the same and the weight thereof.
'2d. In refusing to instruct the jury that no assessment could be made against it as a corporation, but only against such of its property, if any, as might be benefited.
'3d. In refusing to instruct the jury that no assessment of benefits could be made against appellant.'
In view of the condition of the record as disclosed by the statement of the case which we have made, we are of opinion that we cannot pass upon the errors embraced by these assignments.
The inability so to do results from the fact that there is no bill of exceptions in the record showing that the supreme court of the District of Columbia was asked to and refused to give the alleged instructions upon which the second and third assignments of error depend, nor does it appear, from a bill of exceptions or in any other appropriate mode, upon what the supreme court of the District of Columbia acted in considering the exception expressly stated to be based upon the evidence. Not only this, but there is nothing of record exhibiting the fact that any exception was duly taken to the action of the court in overruling the objections urged by the railroad company to the confirmation of the verdict of the jury.