These actions wrere instituted by the plaintiff for disturbing his right of way over land adjoining land of his, own, and servient to his land for purposes of passage. In one *310instance the alleged obstruction was the erection of a building upon the way, and in the other the removal of a causeway and locking up a gateway which existed across the way.
The award of the referee sustains each action, assessing damages and costs. It also finds that the right of way shall be subject to gates and bars as heretofore maintained by the occupiers of the servient estate. The plaintiff is content with the special finding which seems to be unfavorable to him, casting a burden upon his right, while the defendant, who would seem to be benefited by the finding, objects to it.
The objection specified by the defendant is that, in making the special award, the referee exceeded his jurisdiction. As the rules are not made a part of the exceptions, and are not produced, we can not know whether they conferred special authority on the referee or not. But if he has acted in excess of the power conferred on him, the act will be merely a harmless error. The general award, which is distinct and separable from the special, will be sustainable, whether the other be rejected or not.
Exceptions overruled.
Walton, Virgin, Libbey, Haskell and Whitehouse, JJ., concurred.