Wood v. Little , 35 Me. 107 ( 1853 )

Rice, J.

— The only question presented for the consideration of the Court, is whether the property described in the petition is of such a character as to be susceptible of partition according to established rules of law.

The chief value of the property described in the petition consists of a cotton factory with its appropriate machinery. The case finds that “ said factory cannot be divided into the several parts prayed for in said petition without destroying the property for the purposes for which said factory was erected, and for which the same has been maintained by the owners thereof. It is however agreed that said factory can be divided as prayed for aforesaid, without destroying the same, for purposes and uses other than that for which it was erected and has been maintained as aforesaid by said owners.”

Such being the facts, the respondents contend that this property cannot be made the subject of partition by law. Parceners at common law were entitled to the writ of partition in all cases, except it was held that castles, necessary to the defence of the realm, from public considerations, were not subject to this process. By the provisions of c. 31 and 32 Henry Till, the same rights to obtain partition were extended to joint tenants and tenants in common as had been enjoyed by parceners at common law.

In Brown v. Turner, 1 Atk. 350, it was held, that a saw-mill and mill-yard' and materials for a saw-mill are not partible. The Court say, “ such a partition would destroy the whole.”

It is believed, however, that this right of partition is incident to the real estate held in joint tenancy or tenancy in common both in England and in this country.

It has been said that a decree for partition is a matter of right, and there is no instance of not succeeding in it, but when no proof is adduced of title in the plaintiff. Baring v. North, 1 Ves. &. Beu. 554.

In Turner v. Morgan, 8 Ves. 143, the Lord Chancellor said, the law says there is no inconvenience in the partition of a house, as in case of dower. The difficulty is no objection in this Court. That is laid down in Fuller v. Gerard, and appears more strongly in Warren v. Raynes, Amb. 589, where there was almost insuperable difficulty,

In Morrill v. Morrill, 5 N. H. 134, it was decided, that partition may be had of a mill privilege by assigning to each of the owners so much water as would run through a gate of certain dimensions.

The law gives tenants in common an absolute right to have their lands divided. Leadbetter v. Gash, 8 Iredell, 462.

The law has received a construction in our own State, in the case of Hanson v. Willard, 12 Maine, 142. That was a petition for partition of a mill and mill privilege, in which the same defence was made as in the case at bar. The Court, after a careful examination of the authorities, says — ■

“ We come to the conclusion, that if the petitioner, as he alleges, is interested with other tenants in common, in the real estate described in his petition, he may claim of right to have partition made, and his share set off and divided from the rest, however inconvenient it may be to make such partition, or however much the other co-tenants or the common property may be injured thereby.” This would seem to be decisive of the case. The law however does not require that the estate shall be divided into precisely equal shares either in size or value.

In England and many of the States, perhaps the most common mode of proceeding to procure partition is by bill in chancery. In' these proceedings, the common practice is, where the property is of such a character as to be injured or greatly reduced in value by division, to decree a sale of the whole estate and divide the proceeds. Such was the rule of the civil law. Domat’s Civil Law, § 2753.

The chancery powers of our Court does not include eases of this character, but substantially the same equitable result may be reached, under our law, and by this process. <§> 25 of c. 121, R. S. provides; when any messuage, tract of land, or other real estate, shall be of greater value than either party’s share of the estate to be divided, and cannot at the samé time be subdivided among them without great inconvenience, the same may be assigned to one of the parties; and the party to whom the same shall be so assigned, paying such sum of money to such parties, as by means thereof shall have less than their share of the real estate, as the commissioners shall award; but in such case the partition shall not be established by the Court, until the sums so awarded, shall be paid to the parties entitled thereto, or secured to their satisfaction.”

Though it was held in Codman v. Pinkham, 15 Pick. 364, under statute provisions similar to our own, that the entire estate cannot be awarded to any one of the tenants in common, but each must receive some portion thereof, yet commissioners are authorized so to divide the estate as to occasion the smallest practical amount of injury to the whole, and to equalize the parts, if necessary, by compensation in money. From the description of the estate, as given in the case, the Court are of opinion that such a division may be made without destruction to the property, or seriously impairing its value.

Judgment must therefore be entered for partition.

Wells, and Howard, J. J., concurred. Shepley, C. J., and Hathaway, J., concurred in the result.