OIL. Continued.

10. Injunction against operation on the protection.-Oil land on the
northeast corner of Evans' lease was let to Treat, who sank a well within
the "protection," injuring Evans' well on his land: Held, that Treat
could be restrained from operating on the "protection," and that in the
same proceeding damages could be assessed against him for the injury.
Id.

See ACCOUNT, 1; CONTRACT, 1-4; CONVERSION, 1; LEASE.

OPTION.

1. Pre-emption agreement between partners, when waived.—Where
there is a privilege of pre-emption in a contract between mining part-
ners, a subsequent sale, by consent, of a part interest of one partner, or a
descent cast, will prevent the further operation of the covenant.
man v. Smith,

Weis.

152

2. Application of the rule to the facts.-By agreement, Smith was to
furnish funds to purchase certain plumbago lands and convey an interest
to Weisman under a contract of partnership, one of the terms of which
was that neither should convey without allowing his partner the refusal,
or first privilege of purchase. After some years Weisman, with Smith's
consent, sold half his interest in the mines to a third party. After one or
more transfers, this third party's interest was represented by a company
formed to work the mines. Weisman then filed a bill averring a tender
under the refusal clause, and seeking a conveyance of the entire premises
from the then various owners: Held, that it might be doubted whether
the court would in any case decree a specific performance upon a contract
tending to monopoly; but that the sale of an interest by consent to third
parties without provision for the partner's right of pre-emption, justified
the inference that such right of pre-emption was not further to be in-
sisted upon. Id.

ORE.

1. Discovery of copper after contract concerning partition of iron
ores.-Where tenants in common by agreement continued their tenancy
in common, and arranged for the enjoyment of their respective rights in a
certain manner of all the iron ore în certain deposits, their rights in cop-
per or other more valuable ore subsequently discovered in the same tract
would remain unchanged; or at least they would still be tenants in com-
mon therein. Blewett v. Coleman,

PARTIES.

160

1. Interest necessary in plaintiff.-In order to sustain a bill in chan-
cery, it is necessary that the plaintiff should have an interest in the sub-
ject of that suit, or a right to the thing sought. Gaston v. Plum, 168
2. Bill by owner of right to mine, brought after assignment.-The
grant of a right to mine is not of such a fiduciary capacity, or so personal
in its character, or so uncertain in its nature, as to be incapable of assign-
ment; therefore, where the grantee of such a right has assigned the same
before bringing his bill he has no interest in the suit, and his bill must be
dismissed. Id.

3. Tenants in common may join in an action.-Tenants in common in
a mine, each owning undivided interests, acquired at different times,
VOL. XI-46

PARTIES. Continued.

may sue jointly to recover possession of all of their several undivided in-
terests. Goller v. Fett,
171

4. Suit in partnership name dismissed.-A motion to dismiss an ap-
peal from an order refusing an injunction, because the appellants, "the
proprietors of the Mexican Mill," are neither natural nor artificial persons,
sustained, because they have no authority to prosecute under a copartner-
ship name, and the proceeding is an absolute nullity. Mexican Mill v.
Yellow Jacket Co.,

175

5. No plaintiff, a fatal defect-No amendment.-An objection that no
person, either natural or artificial, is named as plaintiff, is not waived by
failure to demur under section 40 of the Practice Act of Nevada, which
provides that defendant may demur because there is a defect of parties
plaintiff, or because the plaintiff has no legal capacity to sue; the defect is
one which can not be cured by amendment; the objection may be taken at
any time, and a motion to dismiss upon that ground will be sus-
tained. Id.

6. Non-joinder of parties as defense.-G., a manager and part owner
of a mining claim, sold to defendant certain ores extracted from the mine.
In an action brought by G. for the price of the ore, defendant pleaded non-
joinder of parties plaintiff, and alleging who were the true owners of the
ore. On the trial defendant offered to show who were the real owners,
whereupon the testimony was excluded. Held, that this ruling was error,
and that defendant was entitled to sustain his plea of non-joinder by com-
petent proof. Goodspeed v. Wasatch Works,
178
7. Idem-Part owner can not recover alone.-In the face of a plea of
non-joinder neither a part owner as such, nor as manager, can recover alone
for the price of ores sold. Id.

8. A non-joinder of parties plaintiff is a good ground of non-suit. Id.
9. Parties to action to dissolve mining partnership.—In an action to
take an account of a mining partnership and dissolve the same, all those
owning interests in the partnership are necessary parties. Settembre v.
Putnam,
425

10. Order to bring in other parties.-If, in a case in equity to dis-
solve a mining partnership, it appears on the trial that a complete deter-
mination of the controversy can not be had without the presence of other
parties, the court may, on its own motion, order them to be brought in
before final decree. Id.

See PARTITION, 10; PARTNERSHIP, 11, 69, 76, 89; PATENT, 23.
PARTITION.

1. Waiver of right to part.-By contract the right to partition may
be waived; affirming Coleman v. Coleman, 11 M. R. 183, and Coleman v.
Grubb, 23 Pa. St. 393, previous controversies between the same parties.
Blewett v. Coleman,
160

2. Waiver of right to part.-The right of partition is a beneficial in-
cident of tenancies in common, but it may be waived by agreement of the
parties in interest. Coleman v. Coleman,

183

3. Agreement barring partition of Cornwall ore banks-Foults.-
In 1787, tenants in common of certain lands, furnaces and forges of irregu

PARTITION. Continued.

lar deposits of iron ore unequally distributed over three contiguous hills,
the deposits differing greatly in quantity and quality in the several places
where they were worked, broken in continuity by faults, and showing in-
dications of the possibility of concentrating as they descended from the
different points open on the surface, by articles of agreement, jointly ap-
pointed arbitrators to make partition of all the lands except the "mine
hills" containing these deposits. Upon a previous effort to make par-
tition of all the land, the arbitrators had reported that no just and equal
partition of these ore deposits could be made. Upon the report of the
latter arbitrators under the agreement amicable actions of partition were
entered, and the court decreed accordingly, parting all the lands except
the Bingham tract with forty acres adjoining, and the Cornwall ore banks,
of which it was decreed by the court that they do still remain undivided,
to be held by the parties as tenants in common according to their respect-
ive shares, and to the covenants and articles in the said agreements. The
said agreements had not only provided for partition of part of the land,
but also that the ore banks not parted should remain together and un-
divided, and declaring it to be the intent of the agreement that neither of
the parties should interrupt either of the other parties at any mine hole by
them opened and occupied for the purpose of raising iron ore. Under
this decree the original owners, their heirs and assigns, worked the
mines until 1851. In that year partition was sought, but the Supreme
Court held, that the partition made in 1787 by the agreement of the par-
ties in interest, and decreed upon by the court, was binding on their suc-
cessors in the title, not only because of the judgment of the court under
which they c'aim, but because the covenants in the agreement of 1787
were real and ran with the land, though the words "heirs and assigns"
were not used. Even if the covenants did not so run with the land as to
give a right of action to an heir or alienee, they would serve to defeat
this action for partition. The agreement of 1787 and the judicial pro-
ceedings had thereon constitute a bar to this action. Id.

4. Partition not set aside as to single tract.-The continuance of the
mine hills in common after the covenants between the parties and the de-
cree of the court became the consideration for submitting to the partition
of the rest of the estate. The implied warranty which attends partition
attached in this case; and if what was done as to the mine hills were to
be overthrown, it would destroy the whole of the partition. If the rest of
the estate be held in severalty by virtue of the partition, by virtue of the
same proceeding the mine hills are to be held in common. Id.

66

5. Covenant not to part.-The words contained in said agreement
'shall remain together and undivided as a tenancy in common," construed
to mean a tenancy in common not for the present nor forever, but as
long as the objects and purposes of the covenant in which they occur
are in process of fulfillment, and so far they bar the action of parti-
tion.

Id.

6. Partition of ore bed refused.--The court will not order partition of
real estate held in common, where the value of the several parts can not
be ascertained, as in the case of an ore bed. Conant v. Smith,

199

7. Sale, when not decreed.-Nor will they in such case order a sale

thereof or an assignment to one of the parties, though authorized by the
statute, if equal or better justice can be obtained in another way; the
proper remedy of the party aggrieved is by application to the court of
chancery. Id.

8. Costs in partition under the statute can not be recovered where
there is no question as to the title of the respective parties. Id.

9. The Supreme Court has common law jurisdiction to part real es-
tate. Canfield v. Ford,
201
10. The common grantor of tenants in common is not a necessary
party in a partition suit and has no interest whatever therein. Id.

11. Colliery worked in partnership.--On bill to wind up a partner-
ship, 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 part-
ners severally to bid was allowed. Wild v. Milne,
207

12. 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 min-
ing 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. McGillivray v
Evans,
209

13. Partition a matter of right.-As the law deems it against good
morals to compel joint owners to hold a thing in common, a decree of
partition may always be insisted on as an absolute right. It is not
necessarily founded upon any misconduct of the co-tenants or part own
ers, but is in obedience to the call of the parties who have a right to the
partition. Dall v. Confidence Co.,
214

14. Partition first-Sale as an alternatire.-In a suit for partition a
sale of the property should never be decreed except when a partition
would result in great prejudice to the respective owners, and under the
Nevada statutes if any one of the tenants in common files an affidavit that
a sale for cash would be injurious to him, it is the duty of the court to ap-
point a commissioner to divide the property, and it is error to decree a
sale. Id.

15. Practice.-A sworn answer setting up the same matter as re-
quired by statute in the affidavit, is equivalent to it. Id.

16. No compensation for incidentally enhancing value.—The defend-
ant, in a suit between tenants in common for the partition of twenty-five
feet of a mining claim, will not be allowed compensation for develop-
ments done upon an adjoining claim which have incidentally enhanced
the value of the premises of which partition is sought. Id.

17. Equity jurisdiction of Federal courts not controlled by State
statutes. The equity jurisdiction of the Circuit Courts of the United
States is derived from and defined by the constitution and laws of the
United States, is the same in all the States, and is not affected or varied
by the statutes of the States regulating and defining the chancery powers
and jurisdiction of the State courts. Strettell v. Ballou,

220

18. Partition of possessory mining claim.-The holder of a mere

PARTITION. Continued.

possessory interest in land, not having title thereto, can not maintain a
bill for partition in the Circuit Courts of the United States. Such a bill
must be filed by one having title to a portion of the premises sought to
be partitioned. If a statute of the State authorizes such bill, it must be
filed in the State courts.

Id.

19. Partition of ditch-Mortgage-Account.-A mortgage upon an
undivided interest in a ditch may be adjusted in a suit for partition of
the ditch, and an account of the water rents taken. Bradley v. Hark-
389

ness,

20. Partition not incident to account.-Partition may be made by con-
sent; but it is not an incident to a suit for a partnership accounting in
which the partners usually have a right to have the assets disposed of. If
land belonging to the firm is not disposed of, it must be left as a distinct
tenancy in common so that the tenants may have it partitioned in a sepa-
rate suit. Godfrey v. White,
562

21. Partition affected by lex loci.-Partition is a local proceeding, and
can only be enforced in a court which has jurisdiction of the territory
where the land is. Id.

22. Parol partition.—A parol partition of a mining claim, if followed
by exclusive possession of the several parcels, is doubtless valid; the par-
ties cease to be tenants in common, and forever after deal at arm's length.
All relation of trust and confidence ceases. 420 M. Co. v. Bullion
Co.,
608

See ACCOUNT, 3; MINERALS, 1; ORE, 1; PARTNERSHIP,
PARTNERSHIP.

54.

1. General rule as to dissolution.-When no term is expressly limited
for its duration, and there is nothing in the contract to fix it, the partner-
ship may be terminated at a moment's notice by either party. Crawshay
v. Maule,
223

2. Death terminates a partnership. Id.

3. The purchase of a leasehold interest as part of a stock in trade is
not evidence of an agreement of partnership commensurate with the
duration of the lease. Id.

4. Trading concern--Mines and iron works operated in connection
therewith are not a mere interest in land, but a partnership in trade.
Id.

5. Upon final dissolution of a trading partnership the court will
order a sale on motion, Id.

6. Continuing liability of partner after conditional notice.-The de-
fendant, a part owner in a mine, told the plaintiff, who had supplied the
mine on the credit of the firm, that he had sold his share to A and B, who
for the future would be his paymasters, and that he, the defendant, would
be no longer responsible. He had not in fact sold, but had made an
executory contract for sale, which was not consummated. Plaintiff kept
on furnishing goods to the mine. Held, that a partner may by absolute
notice save his liability although he still continues a partner; but that
this was not an absolute notice in terms, and its effect should have been
left to the jury. Vice v. Fleming,
241