250 Mass. 324 | Mass. | 1924
These are two petitions for the partition
In the first petition, filed May 8, 1922, seven individuals joined as petitioners against three respondents for a partition of all the land in question. Later, when it appeared that one Daniel C. Look, not a party to the petition, was a part owner of two of the lots described therein, an amendment was filed eliminating them from the first petition, and a second petition was brought for the partition of those two lots. For convenience the first may be referred to as the Clough case; the second as the Carmichael case. The title and fractional interests of the parties as tenants in common were not in dispute. The seven petitioners in the Clough case own collectively seven eighths undivided interest in the land and the respondents Cromwell own collectively one eighth. In the Carmichael case the petitioner Carmichael and the six persons associated with him who were petitioners in the first case own seven thirty-seconds interest in one parcel and seven sixteenths in the other; Look owns a three-quarters interest in one parcel and a one-half interest in the other; and the respondents Cromwell own collectively a one thirty-second interest in one and a one-sixteenth interest in the other parcel. The premises described in both petitions taken together form a lot somewhat triangular in shape, bounded southerly by the sea for about a mile and a half; easterly by a great pond, called Oyster pond, for about a mile and a half; northwesterly by an irregular line partly running across a great pond called Watcha pond and partly upon another great pond called Nahomans pond. A plan of the land, which divided the property into several lots, was used at the trial and at the argument before this court.
On June 5, 1923, an interlocutory decree was entered in each case that partition of the real estate be made and that three commissioners be appointed to make partition according to the rights of the parties interested. It appeared from the decrees that the petitioners in the Clough case requested that their respective shares in all the land be set off to them
The first ground of appeal is that the judge erred in ruling that the transcript of testimony and proceedings before the commissioners was a part of the record of the case to be considered by him.
Proceedings before commissioners are not subject to the rules of law applicable to the trial of causes in court. Commissioners are in the nature of arbitrators. They “ were selected by the court as competent of themselves to make the partition, and it was for them to determine what aid of witnesses they would accept in doing it.” They may permit parties to state their preferences as to what division should be made and to give their reasons therefor and may exclude opinions of witnesses as to the effect of any particular division upon either party. They were not in law obliged to hear any witnesses. Hall v. Hall, 152 Mass. 136, 138, 140. “The only questions which can arise upon their report, are such as have relation to thé regularity of their own proceedings. If they have not conformed in all respects to the directions given them, their report may be set aside, . . . But if there has been no irregularity, and if they have divided the estate according to the requirements of the interlocutory judgment, it will be accepted and confirmed by the court.” Brown v. Bulkley, 11 Cush. 168. Upon a petition for a writ of certiorari against county commissioners who had made a finding and order relating to an abatement of a tax, it was held to be no part of the county commissioners’ return to set forth a report of the evidence
The second contention of the appellants is that the judge erred in refusing to give their request that the report of the majority of the commissioners should be set aside because it did not conform to the precept in their warrant. The first statute which authorized a sale upon a petition for partition was enacted in 1870. It was therein provided that if the commissioners to make partition became satisfied that a
The appellants’ third contention is that the court erred in refusing to grant their request that the burden of proof that the land cannot be advantageously divided is on the party
The appellants’ fourth contention is that the judge erred in refusing to grant their request that if it appears that a fan-division of the land would not seriously damage the profits from the whole, so long as the respective owners use their part in a reasonable manner, such division cannot be found to be disadvantageous. This request does not accurately state the law. Other reasons besides damage to profits may be taken into consideration by the court in deciding whether the property may be advantageously divided. In Hunt v. Hapgood, 4 Mass. 117, the court in considering whether an estate could be divided among all tenants in common “ without prejudice to, or spoiling the whole,” said: “ These words import a case where the shares divided, from the nature of the estate, would be worth but little, as in the case of a dwelling house, or some small parcel of land, the respective shares of which, holden in severalty, would be of much less value than when holden together.” In Heald v. Kennard, 180 Mass. 521, 522, the court said: “ The considerations which determine whether land can be divided advantageously no doubt have reference mainly to the
The appellants’ fifth contention is that the judge erred in refusing to grant their request for a ruling that, the respondents Cromwell now having full right to shoot over the whole land in any manner they please, no damage to the petitioners’ shooting rights can be found to result from the proposed division which restricts said respondents to a small part of the whole land. The proposed division to which the request refers, is that suggested in the minority report. It could not be ruled as matter of law that the restriction of the respondents to a small part of the land would not damage the petitioners’ shooting privileges. This was a question of fact.
The appellants’ sixth contention is that the judge erred in finding and ruling that the premises cannot be advantageously divided by physical division without great damage
For the reasons stated in the discussion of the appellants’ first ground of appeal, the decrees are reversed; and the cases are remanded to the Probate Court for further hearing in accordance with this opinion to determine the question whether the land can be advantageously divided, and for the entry of such decrees by the Probate Court as the facts found at such hearing justify.
Ordered accordingly.