corody incertaine." Id. Another instance cited by Littleton, of estates that shall not be partitioned, is this: Lord Mountjoy, being seized of the manor of C., did by deed, indented and enrolled, bargain and sell the same to one Browne in fee, in which indenture was contained a c'ause on the part of Browne, amounting to a grant by him of an interest and inheritance to Lord Mountjoy, his heirs and assigns, to dig for ore in the lands, which were a great waste, parcel of the said manor, and to dig for turf, a'so for the making of alum. In this case three points were resolved upon by all the judges, viz. First, that this conveyance did amount to a grant of an interest and inheritance to Lord Mountjoy, to dig, etc. Second, that notwithstanding this grant, Browne and his heirs and assigns might dig also, and like to a case of common sauns nombre." Thirdly, that the Lord Mountjoy might assign his whole interest to one, two or more, but then if there be two or more they could make no division of it, but work together with one stock. Co. Litt. 164 B. : It will be seen that the reason given by the judges why partition could not be made in the case above cited, does not at all apply to the case in question. First, the exclusive right or all the right to mine ores, etc., was not granted in that case, but a mere right or permission to dig, etc.; the grantor and his assigns might also dig; and second, the extent of the grant being uncertain the grantee might surcharge to the injury of the tenant of the land. Interests uncertain in their extent could never be partitioned. In the case now in question, the tenant would be bound to take the estate, subject to the terms of the conveyance granting the exclusive right to all the mines, etc., and of the right to put up all buildings, and use all lands that may be necessary for the purposes expressed, and the right of ingress and egress thereto and therefrom. The terms of the grant, by construction, being taken most strongly against the grantor, and the whole interest in the mines, etc., being conveyed, it is immaterial to the grantor whether one person with fifty or more laborers, or fifty or more persons singly, should dig thereon, provided they use no more of the land than is necessary for the purpose of digging, etc., all the mines, ores, etc. This is a certain grant, and no difficulty occurs in making equality of division. But if the provisions of our revised statutes are not broad enough to include the power to partition, it has been settled. that this court, as now constituted, has common law jurisdic. tion to partition real estate: Story's Eq. Jur. Sects. 646, 658; Smith v. Smith, 10 Paige, 470; limited, however, to the power to divide estates certain. It is only necessary, in a court of equity, to entitle to partition, so far as this point is in question, to show that equality can be obtained in value of lands, especially in advantages and profits redounding from each share to the several owners. Allnatt on Part. 10. Whatever is capable of being divided may be the subject of partition in equity : Id. 84. The only remaining question raised in this case is, whether the owner of the fee qualified in quantity, out of which the estate in question was carved, ought not to be made a party to the action. The statute (2 R. S. 318, Sec. 5) requires that the petition (complaint) shall set forth the rights and titles of all persons interested therein, etc. What interest can Fuller, the grantor of this estate, have in the estate, which by deed he has conveyed away? In the estate sought to be partitioned he has no interest whatever. The partition in no respect affects the title of Fuller. He is not a tenant in common with the parties to the suit. They own separate portions of the estate in severalty. I think the judgment must be affirmed. Judgment affirmed. WILD V. MILNE. (26 Beavan, 504. The Rolls Court, 1859.) 1Colliery worked in partnership. On bill to wind up a partnership, the court will not order a partition of mines worked as firm assets, but will order a sale of the entirety, and in this case liberty to the partners severally to bid was allowed. The plaintiff Wild, the defendant Milne, and the five other co-defendants, were engaged in working a colliery called the 1 Hughes v. Devlin, 12 M. R. -- -; Crawshay v. Maule, 11 M. R. 223. Dean Colliery; they had obtained seven leases of different parts of the property for terms ranging between twenty-one and forty years. There were no articles of partnership and no fixed term for its duration, but the partners were entitled in equal shares to the profits. In consequence of some disagreements the plaintiff gave notice to dissolve, and instituted this suit against his copartners to have the partnership wound up. It did not allege that there were any debts, but it prayed that the partnership property might be sold and applied in payment of the debts and liabilities, and that the surplus might be divided. This was resisted by the defendant Milne alone, and the case was now brought on for hearing. Mr. R. PALMER and Mr. EDDIS, for the plaintiff. Mr. LLOYD and Mr. FOWLER, for Milne. Mr. BACON, Jun., for the other defendants, concurred with the plaintiff. THE MASTER OF THE ROLLS. I am clearly of opinion that this is an ordinary case of partnership, and that when it is dissolved or terminated any one of the partners is entitled to have the whole assets disposed of. In this case it is admitted that any one can put an end to the partnership; the result is, that that which forms the partnership assets must be disposed of for the purpose of settling the rights between the partners. I consider this established by Crawshay v. Marle, 1 Swanst. 518, 526, where the distinction between the individual interests of several persons in land, where there is a trading partnership and where there is none, is adverted to. One of the cases points out the singular inconvenience which would follow if I were to direct a sale of the plant and a partition of the land demised. Would the steam engine be included in the division, and, if so, how could it be possible to make a partition of the remainder? Are all the parties to have the use of the shaft, or a right of descend ing by means of the machinery? The court is compelled, by the exigency and circumstances of these cases, to direct a sale. I shall therefore make the usual decree, and according to the prayer of the bill direct a sale. The parties are entitled to an inquiry to ascertain how the partnership property can be most advantageously sold, and whether as a going concern or not. Liberty to bid may be given to all the partners except the one having the conduct of sale. Appoint a receiver and manager, with liberty to any party to propose himself, without salary. MCGILLIVRAY V. EVANS ET AL. (27 California, 92. Supreme Court, 1864.) 'Partition of water impracticable-Sale and distribution. It is utterly impracticable for the court to make a mechanical division of the water running in a ditch, owned by tenants in common and used for mining purposes, in such a manner as to permanently do justice between the parties. The only partition that the court can make, which will definitely and permanently end the dispute of the parties and do justice between them, is to order a sale and distribute the proceeds. Appeal from the District Court, Ninth Judicial District, Trinity County. GEORGE CADWALADER, for appellants. W. W. UPTON, for respondent. By the Court, SAWYER, J. This is an action for the partition of the water of a mining ditch, admitted to be owned by the parties as tenants in common. The three defendants are entitled to the first flow of twenty inches when the water is high, which the court finds is to be measured without pressure. But in the summer, 1 Lorenz v. Jacobs, 59 Cal. 262. VOL. XI-14 when the water is low, they are entitled to the first flow of one fourth of the whole, provided one fourth does not exceed twenty inches. The plaintiff is entitled to two fifths, and the defendants to three fifths of the remainder, after the twenty inches, or the one fourth at low water, has been taken out. The answer alleges that as between themselves the twenty inches are owned jointly by all the defendants, and that the three fifths are owned by two of them only-but the court does not find how the defendants hold, as between themselves. The defendants appear to use the water for mining purposes, and the plaintiff formerly used his for irrigating his garden, and for sale to miners-the parties dividing it among themselves. Upon the facts found, the court ordered the water to be divided, according to the proportions ascertained to be owned by the plaintiff and defendants respectively, and appointed three commissioners to make the division in pursuance of the order of the court, and to report at the next term. Two of the commissioners presented a report, in which they say: "We first, by means of a box and gate placed in the end of said ditch, where defendants were wont to take out their twenty inches of water, divided or separated from the main body of the first flow of the water twenty inches thereof, without pressure, in the same manner as it was measured when first sold in 1852, as directed by the court in said order, so arranging the gate in the box as to slide up or down, as the quantity of water in the ditch varies; which said twenty inches of water we turned out to, and set apart for, said defendants, which will flow to them constantly all the year round. The balance or remaining portion of said water of said ditch, described in said commission, we divided at the lower end of said race between the plaintiff and defendants, giving to the said plaintiff two fifths of the water, and to the defendants three fifths thereof. The said division of water was made in the following manner: After we had separated and set off to the defendants twenty inches of the first flow of the water (as it ran in the ditch) we partitioned the balance by means of a division box, placed at the lower end of said ditch, with five equal apertures arranged side by side on the same level, in such manner that the water of the ditch, whether low or high, will flow out through said five openings in equal quan |