¶1The complaint was filed at Fall Term, 1873, alleging that the defendant had changed the course of a certain stream, and claiming damages therefor.
¶2At Fall Term, 1874, the case was, by consent, referred to two referees, with leave to choose an umpire in case of disagreement, the award to be made a rule of court. The referees chosen refused to act. No answer has ever been filed.
¶3At Fall Term, 1875, the defendant moved the court to dismiss the action on the ground that the court had no jurisdiction thereof, because the plaintiff can only pursue the remedy prescribed by the charter of the defendant company. It was a fact, disputed by the counsel, whether the damages complained of, were incidental to the construction of the road, and necessarily occasioned thereby. The counsel for the plaintiff contending that it was, the counsel for the defendant contending that it was not.
¶4His Honor refused to dismiss the action, because the complaint does not allege that the damages are caused by the location of the defendants' road upon the lands of the plaintiff.
¶5From this ruling of his Honor, the defendant appealed. For the reason by his Honor, we concur in (588) his opinion.
¶6PER CURIAM. No error. Judgment affirmed.