10 Paige Ch. 470 | New York Court of Chancery | 1843
As neither party has appealed from that part of the decree which declares the rights of the
Upon the first question I think that partition between tenants in common of real property, in this state, is a matter of right, by the common law as well as by the statute, where both parties cannot, or either of them will not, consent to hold and use such property in common. I think the cases referred to by the assistant vice chancellor fully sustain his decision upon that question, as to the common law right. (Baring v. Nash, 1 Ves. & Beame, 554. Parker v. Gerard, Amb. 236. Harrison v. Willard, 3 Fairf. Rep. 146. Allnat on Part. 4, 78, 87. Turner v. Morgan, 8
I think the assistant vice chancellor erred, however, in supposing that the proofs in this case required, or authorized, a decree for the sale of the water power of which partition was sought. The statute only authorizes a sale of the property where it appears to this court, by the report of a master or otherwise, that the premises are so circumstanced that a partition thereof cannot be made without great prejudice to the owners. (2 R. S. 330, § 81.)
Here the proof shows that the property is of little or no value except in connection with the mill property of one or both of these partieg. Of course no one but the parties would bid upon it, if it was sold under the direction of a master, except with a view to sell it again to one or both of them, or to connect it with the mills of one or both, by a purchase of the mills from them. And if the whole water power, in connection with - the mill property held in severalty by either of these parties, will not be worth more than the same water power equally divided by a proper partition thereof, the one half to be used with the mills of each in the hands of different persons, no benefit will result from a sale instead of such a partition. The father of the parties, I believe, is the only witness who has stated the comparative values of each part of the mill property, with the use of one half of the water power, or with the whole or none of it. He thinks the mills of each of the parties,
Nor does there appear from the testimony to be any difficulty in making an actual and equitable partition of the water power in controversey, so as to be mutually benefi
That such is the law, in connection with the provision of the revised statutes authorizing this court, where an equal partition of the property cannot be made without prejudice to the rights and interests of some of the parties, to decree compensation to be made by the one to the other to produce such equality, it is. only necessary to refer to a few of the leading cases on this subject.
In the case of Hill v. Dey, (14 Wend. Rep. 204,) it appeared that the commissioners in partition had set off to one of the parties one part of the premises, by metes and bounds,
Warren v. Baynes, (2 Blunt's Amb. 589,) decided by Lord Hardwick in 1750, is another case, in which such a mode of making partition of property, the principal value of which consisted in the use of water, was adopted. An easement in the land was leased to the New River Company, at an annual rent for the quantity conveyed in each pipe, laid down by the company; with the privilege of laying down other pipes at the same rent. And there were also two water conduits belonging to the parties in the partition suit, one of which was used for a cold hath establishment, and the water in the other conduit was run
I see no good grounds for questioning the decision of the assistant vice chancellor in respect to costs. The complainant in his bill claimed a small piece of land which did not belong to the parties in common ; and he made an unfounded charge against the defendant, as to his having agreed not to erect any mill, on the part of the premises conveyed to him, which should interfere or come in competition with the business of the complainant. But the defendant on the other hand set up, in his answer, an agreement that the dam and pond should be forever held in common for the use of the mills of both parties, so long as such mills should be holden in severalty, and as to a particular mode of using the water. Which allegation in the answer is equally unsustained by proof. There was no impropriety, therefore, in leaving both parties to bear their own costs in relation to those matters, and as to the proofs, which re
Decree accordingly.