
    Elisha Rhoades vs. John Siman and others.
    October 11, 1877.
    Referee — Review of Rulings, — Erroneous rulings made by a referee during the progress of a trial can only be reviewed in this court on exceptions taken, and made a matter of record by a bill of exceptions or statement of a case.
    This was an action for damages to the plaintiff’s land, caused by the erection and maintenance of a dam across the Blue Earth river. The cause was referred by the district court of Faribault county to J. A. Keister, Esq., upon whose report a judgment was entered for the plaintiff. From this judgment the defendants appealed.
    
      Brown é Wiswell and E. H. Hutchins, for appellants.
    
      Benj. G. Reynolds, for respondent.
   Cornell, J.

It appears from statements contained in the findings of the referee, that on the trial before him two separate motions were made by the defendants to dismiss the action, on certain grounds therein specified; that, with the consent of parties, the decision of these motions was reserved by the referee until he came to consider the whole case upon the merits on all the testimony; and that he then denied both motions. The rulings of the referee on these motions are not presented by any bill of exceptions or statement of the ease, unless his findings are to be treated as such; and in this case it is not shown that any exceptions were ever taken by the defendants to either of them. No question as to the correctness of these rulings is, therefore, properly before us for consideration.

An averment that the Blue Earth river was not a navigable stream, if such was the fact, was not a necessary one to be made in the complaint. The case of Bryant v. Glidden, 36 Maine, 36, cited by appellant, is not in point.

Judgment affirmed.  