Canfield v. Ford — 16 How. Pr. 481

Majority

p. 473

SUPREME COURT.

John Canfield and Richard R. Chapman agt. Chilian Ford.

Headnote

An action for partition or sale of premises was sustained in this case, "where it appeared that the plaintiffs’ interests consisted of being seized in fee simple of certain undivided parts of all the mines, ores, minerals and metals, lying and being upon the described premises; with power to go upon the land to work and raise the same, and the defendant being seized as owner of the residue of said part of the premises. &o., and the soil in fee.

St. Lawrence Circuit,

July, 1857.

Action for partition of lands. The complaint avers that the plaintiffs are seized and possessed, one in fee simple of the one undivided third part, and the other of one-eighth part of all the mines, ores, minerals and metals, lying and being upon certain tracts or parcels of land, situate in De Puyster, in the county of St. Lawrence, known and distinguished as lands, &c., describing them as lots Nos. 125 and 126 and 131, together with the right to raise, work and carry away the said mines, ores, minerals and metals in or upon said lands, and the right to put up all buildings on all said lands which may be necessary for the purposes aforesaid, and the right of ingress and egress thereto and thereupon, for the purpose of raising, digging or working and carrying away the said mines, ores, minerals and metals, doing no more injury to the soil than may be necessary for the purposes aforesaid; and that defendant is seized of the residue of said rights in the premises.

The defendant objects that he being seized of the soil in fee, and plaintiffs only having the undivided right in the mines,

p. 474

with the right to erect suitable buildings on the land, for the purpose of working them, that plaintiffs are not entitled to a ' partition, inasmuch as it can only be of the ore, unraised and unworked.

Brown & Spencer, for plaintiffs.

Bishop Perkins, for defendant.

I have searched in vain for an authority to sanction a partition in a case of this kind. • «Nevertheless, from a reference to the Bevised Statutes, (2 R. S. 576, § 1,) and from the necessity of the case, I think the plaintiffs are entitled to partition or a sale, under the subsequent sections. The plaintiffs have a certain right in the land on which the ores or minerals are. They have a right of ingress and egress to and from the premises; they have the right to erect buildings and machinery necessary for the raising, working and carrying off the ore, to certain parts of whichgthey are entitled.

The defendant owns the fee of the land it is true, but plaintiffs necessarily-have a certain interest, such as may be necessary for the working and disposition of the ore, in common with the defendant; and I do not well see how they can have any other remedy to enforce their rights or avail themselves of them, if defendant should claim the entire and exclusive possession of the ore bed. Perhaps they might have relief, in equity, or it may be the defendant would be accountable to the plaintiffs for all the ore he raised and worked. But suppose he chose to not work it at all, how are plaintiffs to work it if he claims entire possession ? Or suppose he conveys away the land, and becomes insolvent and unable to account, where is plaintiffs’ security ? I think that partition may be made, or .at all events a sale be effected, and that commissioners must be appointed.

Order accordingly.