Curia, per

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 sur*120vey. It was an action to try titles to an incorporeal hereditament ; and there was no good reason why a survey should not be ordered. The defendant’s motion was therefore granted.