27 Cal. 92 | Cal. | 1864
Lead Opinion
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, 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 is 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 defend
Appellants allege that the Court erred in assuming to make a partition of the water in the mode provided by the judgment. It would, to our minds, be 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 object of a partition of the property itself is to enable each party to obtain the title to, and the use for all future time, in severalty, of some definite portion of the property owned in common, and thereby permanently end all disputes and remove all obstructions to its free enjoyment. In the case of two mills upon a stream comparatively constant in its flow, which are permanently located at a permanent dam upon its banks, and to which a right to the use of the water of the stream for propelling them is appurtenant, and where permanent gates and gauges may be fixed, it is possible, perhaps, to arrange a division of the water in such a manner as to approximately do justice between the parties. The Chancellor so thought in Smith v. Smith, 10 Paige, 470. But in the case of water conducted in ditches for mining purposes, the circumstances are entirely different. The use of the water is rarely had for any considerable length of time at the same point. When the claim of a miner is
In this case the Court did not attempt to make a complete partition. It only divided the water between the plaintiff, on one side; and the three defendants, as one party, on the other. The record shows that the three defendants owned the twenty inches jointly, and two of them three fifths of the remainder. The defendants demanded that the twenty inches should also be partitioned among them; but it was not done, and it is obvious that it would be utterly impracticable for the Court to adjust such complicated interest by a single mechanical division by means of boxes, gates and gauges to permanently remain. An attempt to do it would be, not to end, but to encourage and multiply litigation to an unlimited extent.
The necessary facts to enable the Court to make a proper distribution of the proceeds, on a sale, do not appear in the findings, and a new trial will be necessary.
Judgment reversed and a new trial ordered in pursuance of the principles indicated in this opinion..
Rehearing
The correctness of our decision is not questioned in the petition for rehearing. A rehearing seems to have been asked on the supposition that the District Court was directed to enter a judgment ordering a sale of the property and division of the proceeds. But such is not the order. The order is: “ Judgment reversed and a new trial ordered in pursuance of the principles indicated in this opinion.” When the case goes back a new trial will be had. The plaintiff prays for a partition. If a partition is to be had, it can only be made by a sale and a division of the proceeds. Plaintiff now urges that upon the pleadings a partition would not necessarily follow;
A rehearing is denied; but, to guard against misapprehension, the order for- judgment is modified so as to read : Judgment reversed and new trial ordered.