#### RICHMOND COLE v. THE CAROLINA CENTRAL RAILWAY COMPANY.

It is not error in the court below to refuse to dismiss an action against a railroad company, on the ground that the court had not jurisdiction thereof, because the charter of the defendant’s company provides the manner, in which a parly injured by the construction of its road, shall proceed to recover damages, where the complaint, does not allege that the cause of action arose from the construction of said road.

This was a motion in the cause heard before Buxton,at Fall Term, 1875, of RiohhoNd Superior Court.

The complaint was filed at Fall Term, 1878, alleging that the defendant had changed the course of a certain stream, and claiming damages therefor.

At 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.

At 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 connsel, 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.

His 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..

From this ruling of his Honor, tlie defendant appealed.

Steele cfe Walker, Strange, and Bunbee, for appellant-

Shaw and Bind ale, contra.

*588Peabsok, C. J.

For the reason by his Honor, we concur In his opinion.

Pee Cuetam. No error. Judgment affirmed.