
    T. E. Scriven v. William Hayward.
    In an action of .trespass on the case, involving aright to water privileges, the defendant’s motion for a survey was granted, though the plaintiff declined to join.
    A motion for a rule of survey, which the Court would not have hesitated to grant, having been refused in courtesy to the judge who had rejected the same application at the previous term, an appeal upon the motion was allowed, pendente lite.
    
    Before Butler, J., at Coosawhatchie, Fall Term, 1839.
    These were actions of trespass involving the right to water privileges. The defendant moved for an order to survey the plaintiff’s plantation and the adjoining lands of the defendant, and to take the level water course through the same.
    The presiding judge would have granted the order without hesitation, but was deterred from so doing by courtesy for the decision of Earle, J., who had refused it, at a previous term, because the plaintiff declined to join.
    The defendant renewed his motion before the Appeal Court, while the case was yet depending.
    
    
      
       See 2 Strob. 255. An.
      
    
   Curia, per Butler, J.,

held that, under the peculiar circumstances of the case, the motion was properly brought up to this Court. And, although the action was not technically a trespass to try titles, yet it involved the right to a privilege or easement .that could not well be, ascertained without a survey. It was an action to try titles to an incorporeal here-ditament; and there was no good reason why a survey should not he ordered. The defendant’s motion was therefore granted.

See 5 Rich. 13. An.

Colcocle and Hutson for the motion.

Gantt, Bichardson,0’ Neall, and Earle, JJ., concurred.  