Hendy

The plaintiff alleges in his complaint that the defendant Duncan bargained, sold and conveyed to him, by an instrument in writing under seal, the right to erect a sawmill on Wahalla river upon the land of Duncan, with the privilege of using the water-power of the river to propel the mill and other necessary machinery for the manufacture of lumber, and also the right and privilege of cutting and taking from the same land all the timber necessary to supply the mill, with the right of way over Duncan’s land for the purpose of his lumbering business. He further alleges that there is no more timber on the land than sufficient to supply one sawmill, yet nevertheless the defendants “are proceeding to despoil and waste the said timber, and have already carried away and converted to their own use a large quantity thereof, and threaten to continue to cut and destroy said timber,” which will render utterly valueless the right secured to the *292 plaintiff under and by virtue of said instrument. The plaintiff then avers that the timber already cut, carried away and converted to their own use by the defendants is of the value, of five thousand dollars, for which sum he prays judgment against…

Concurring.

The counsel for the appellant does not claim that the complaint can be maintained on the ground that it makes a case in damages, and it may there *293 fore be considered that he waives an examination of the case in that aspect; and it may be fairly inferred also that the point was neither passed upon nor made in the court below. I therefore concur in the judgment.