14 N.M. 403 | N.M. | 1908
OPINION OF THE COURT.
In Crocker v. Cotting, 170 Mass. 68, a similar ease, it was said by the court, speaking through Mr. Justice Holmes, then, a member of the Supreme Court of Massachusetts :
“The petition is resisted only on the ground that the statute first cited does not apply to land subject to a right oí way. xxx. The language is: 'Persons holding lands as x x tenants in common may be compelled to divide such land either by writ of partition at the common law or in the manner provided in this chapter.’ This language applies to the present case as plainly as words can, unless for some reason it is narrowed from what it seems to mean on its face. There is no doubt that land is not withdrawn from partition by the fact that a part of it is subject to easement. Weston v. Foster, 7 Metc. 297, 299. There is no greater obstacle in the fact that the whole of it is.” The same learned judge proceeded as follows: “In England when partition was asked, and decreed of a moor the objection was urged that the moor was subject to rights of common. But Sir William Grant, the Master of the Bolls, answered: 'The rights of common are no objection to the commission, as that right will not be in the least affected by the partition, which regards only the freehold and inheritance of the soil/ ”
We are of opinion, therefore, that the existence of the easement affords no obstacle to the partition of the soil. The latter when accomplished will have no effect upon the easement, whether the fee .to the soil remain in the present parties, or in ai vendee under a partition sale.
The ease seems to> have'been presented to the learned trial judge upon a theory different from that above outlined, and it was doubtless due to this fact that the decree now complained of was rendered. Believing as we do, however, that the decree dismissing the complaint was contrary to the principles which should 'control the case, we reverse and remand the cause for further proceedings not inconsistent with this opinion. '