| Cal. | Jul 1, 1863
Lead Opinion
delivered the opinion of the Court—IT ortos, J. concurring.
This is an action for a partition of a mining claim and water ditch connected therewith, the plaintiff claiming an undivided two-thirds, and the defendant the undivided one-third thereof. The two hundred and sixty-fourth section of the Practice Act provides that “ when several persons hold and are in possession of real property, as joint tenants, or as tenants in common, in which one or more of them have an estate of inheritance, or for life, or lives, or for years, an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons interested therein; and for a sale of such property, or a part of it, if it appear that a partition cannot be made without great prejudice to the owners.” The action was brought under this section of the statute.
The defendant contends that the interest of miners in mining claims and ditch property upon the public lands, is not an estate of inheritance, or any of the other kinds of real estate mentioned in the statute; and therefore the same are not liable to be partitioned between the owners under the act. In this he is clearly in error. In Merritt v. Judd (14 Cal. 64), this Court say, in commenting on the Law of Fixtures : “ From an early period of our State jurisprudence, we have regarded these claims to public mineral lands as titles. They are so practically. Our Courts have given them the recognition of legal estates of freehold, and so, to all practical purposes—if we except some doctrine of abandonment, not, perhaps, applicable to such estates—unquestionably they are, and we think it would not be in harmony with this general judicial system, to deny to them the incidents of freehold estates, in respect to this matter.” So, too, they have been held to be “ real property,” respecting
The ownership of a right to a mine, with the right to work the same, situated on land belonging to another, is a very common interest in mining counties. It has been held to be such an interest as would descend to the heirs of an owner. The mere right to work such mines, is held to be an incorporeal hereditament in the land of other persons. But in such cases it is held that it is indivisible, because a division of the right would create new rights, and would prejudice the owner of the soil; and it has been, therefore, held that the coparceners must work the mines jointly -with one stock, or each enjoy the right at successive periods of time. (Bainbridge on Mines, 115,116.) But a different rule prevails where a distinct right of property in mines descends in coparceneryand the coparceners in such case are entitled to a partition, as their rights would not thereby interfere with the property of others. They are seized, not of a bare right, hut of an estate in fee, divisible in its nature. (Id. 116.) And the same rules apply to joint tenants and tenants in common of mines. (Id. 117 ; Collier on Mines, Secs. 5,12; Rockwell on Mines, Secs. 47-49.) The distinction between the right to mine in the land of another and a distinct right of properly in a mine, as to this right of partition, has no application to the public mineral lands in this State. Although the ultimate title in fee in our public mineral lands is vested in the United States, yet as between individuals, all transactions and all rights, interests, and estates in the mines are treated as being an estate in fee, and as a distinct and vested right of property in the claimant or claimants thereof, founded upon their possession or appropriation of the land containing the mine. They are treated, as between themselves and all persons but the United States, as the owners of the land and the mines therein; and as such, where the land or the mine is claimed by several, as joint tenants, tenants in common, or as coparceners,
The judgment is therefore affirmed.
Rehearing
delivered the opinion of the Court—Norton, J. concurring.
It is urged in the petition that the property in controversy being used as partnership property, an action for a partition will not lie, and that a suit in equity must be brought to dissolve the partnership, and for an account of the partnership business. It does not appear in this case, that any suit in equity is necessary to settle and adjust the business of the partnership. The mere fact that real estate, owned by persons as tenants in common, or even as partners, is used in a partnership business, affords no valid objection to an action to partition the same between the owners. The property was of such a character, and the owners had such an interest therein, as afforded a proper ground for an action for a partition, as has been shown by the previous opinion of this Court; and as the answer did not deny any of the allegations of the complaint, but merely set up the facts upon which the claim that a partition would not lie was founded, the demurrer to the answer was properly sustained.
It is objected that no evidence or proof was offered to show that the property was not capable of being partitioned without great prejudice to the owners, to authorize the Court to order a sale. The fact was averred in the complaint, and was not denied by the answer, and it was therefore properly deemed admitted, like any other material fact affecting the rights of the parties, or the form of the remedy to which they might be entitled. The terms of the two hundred and seventy-fifth section of the Practice Act are a little peculiar upon this subject, but it does not vary the rule laid down in other sections, as to what facts are to be deemed admitted. No objection of this kind was made in the Court below; and even if such proof were necessary, it may properly be deemed to have been waived under the circumstances, the defendants evidently relying upon their answer being a sufficient defense to the action. The same remarks apply to the objection that there was no proof of the
The Court appointed a referee, to make sale of the property, in accordance with the decree, to which no objection appears to have been made in the Court below; but it is now contended that the Court should have appointed three instead of one. See. 275 of the Practice Act provides, that if a sale is not directed to be made, the Court shall order a partition, and shall “ appoint three referees therefor.” This does not apply to a case like the present, where a sale, and not a partition is ordered; and such sale can be as well conducted by one as three referees. This objection is not, therefore, well taken.
The rehearing is denied.