Conant v. Smith

1 Aik. 67 | Vt. | 1826

The opinion of the Court was delivered by

Royce, J.

This is a petition for partition of a small piece of land, the value of which consists chiefly in an ore-bed, which for several years has been known to exist in a part of the tract. A suggestion is made, that it may be difficult to divide the bed to advantage; and the scope and design of the petition seems rather to obtain an assignment of the defendants’ share, than an actual division of the estate. The situation and quality of this property is such as to justify the Court in declining to order a partition, or sale. The exact extent of the ore-bed is probably not yet known; and much less is the comparative depth and richness of its several parts. It would, therefore, be very hazardous to attempt a final division of the land itself; and to order a division in point of time, by directing the parties to improve the whole in succession, according to their interests, WOuld operate to destroy all benefit to the owners of a small share. And then, to direct a sale of the defendants’ share without their consent, though authorized by the statute, is against common right, and ought to be avoided, if equal or better justice can be obtained in another way. The court of chancery has powers to preserve the rights of the parties, and avoid all these evils. They can regulate the enjoyment of this property between the owners, by restricting them to the proportion of their respective 'interests, by compelling accounts between them, and by appointing a common receiver for all parties. It is further to be recollected, that the orders of that Court are not necessarily peremptory and final, but may be altered from time to time, and suited to the varying state of the subject and condition of the parties. To that jurisdiction we must therefore refer the petitioners, and refuse their present application.

Chas. K. Williams, for the petitioners. Robert B. Bates, for the petitionees.

Bales now moved the Court, that the petitionees be allowed their costs.

Hutchinson, J. considered it a case in which it was discretionary with the Court, either to allow costs or not. Royce, J.

This being a case where no question is made about the respective tilles of the parties as set forth in the petition, and the statute having given costs upon a trial of the title, it is to be construed as having denied costs in other cases.

In this opinion, the other judges concurred; and no costs were allowed.