Coleman's Appeal , 1869 Pa. LEXIS 249 ( 1869 )

The opinion of the court was delivered,

by Sharswood, J.

That the parties to this suit are tenants in common of the Cornwall ore-banks ought to be considered as a point settled beyond all dispute. Peter Grubb was the owner in fee-simple of a large tract of land including the three hills of iron ore in question known as the Big Hill, Middle Hill and Grassy Hill. On his death intestate, it descended to his two sons Curtis and Peter, Curtis, the elder, taking two shares, according to the then law of the province. Erom these parties the title is regularly deduced, so that in the year 1786 two third parts were vested in Curtis Grubb and Robert Coleman, and one third part in Burd Grubb and Henry Bates Grúbb. An attempt to divide the estate at that time was unsuccessful, it having been found on the report of competent persons chpsen for the purpose that, owing to the impossibility of ascertaining the extent and limits of the beds and veins of ore beneath the surface of the ground, the partition proposed could not be carried into execution without the greatest injustice to some of the parties. An agreement was thereupon made, August 30th 1787, by which it was stipulated that certain persons named “ should make equal partition of Cornwall Eurnace, Hopewell Eorge and all the lands, plantations, houses and other the real estate, late the property of Curtis Grubb and Peter Grubb, according to quantity and quality and having respect to the true value thereof, and to assign and allot the same according to the real interests and convenience of the several parties, provided always and it is hereby agreed that the ore-banks belonging to Cornwall Eurnace shall remain together and undivided as a tenancy in common, the said Curtis Grubb being entitled to three sixth parts thereof, the said Robert Coleman being entitled to one sixth part thereof, and the said minor children (Burd Grubb and Henry Bates Grubb) being entitled to the remaining two sixth parts thereof.” Amicable actions of partition were entered in the Courts of Common Pleas of Lancaster and Dauphin counties, and upon the report of the persons appointed, the partition made by them was confirmed. It was adjudged in conformity to the agreement that “ the ore-banks and mine-hills of Cornwall Fui’naee do still remain undivided, to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb and Henry Bates Grubb, as tenants in common according to their respective shares.”

The terms of this agreement and judgment are not susceptible of two constructions. They except the ore-banks from the operation of the partition, and declare that they shall remain as a tenancy in common. It is now, however, strenuously contended that the plaintiffs are concluded from asserting this by the judgment in Coleman v. Coleman, reported in 7 Harris 100 — upon the plea of non tenent insimul, in an action of partition commenced in the Court of Common Pleas of Lebanon county, for these identical ore-banks, and between the same parties. The judgment of quod partitio fiat in the court below was reversed in this court. But this judgment is not judicially before us. It is not pleaded nor set up as a technical estoppel in any of the answers, which on the contrary expressly admit the tenancy in common, as alleged in the bill; nor indeed was the recprd given in evidence before the master. How, then, can it be properly adverted to, except so far as the reported decision may settle any principle applicable to this case, in which view any other judgment between other parties and relating to other lands, would be equally available? Besides which it is by no means clear that a simple judgment of reversal in a court of error is such a final judgment as to have the effect of an estoppel: Aurora City v. West, 7 Wallace, S. C. Rep. 92. The plaintiffs in that action now rely on the judgment as conclusive in this proceeding. Had they prayed for a venire facias de novo, and the case been remanded for another trial, the defendants could have withdrawn their plea of non tenent insimul, and pleaded specially the covenant of August 1787 as a bar, which would have avoided the effect of the judgment on the issue as' conclusive on the question of the existence of a tenancy in common. It is true, that in Gibbs v. Bartlett, 2 W. & S. 35, Mr. Justice Rogers states that the entry of “judgment reversed” in this court without more, according to our practice, which saves expense and trouble, is a final judgment. That was said, however, in an action on a replevin-bond conditioned to prosecute the suit with effect and without delay. It would not, however, be satisfactory to rest the answer to this argument upon such grounds as these. They are mentioned merely to show that they have not been overlooked.

The judgment for the defendants in Coleman v. Coleman, if, indeed, there was a final judgment, could not have been successfully set up as conclusive on the question here involved. Whenever a judgment is relied on for this purpose, it is competent for the adverse party to show that the particular point was not adjudicated, if in law it could have been rendered upon any other. If any defence was admissible under the plea of non tenent insimul, except that the parties were not tenants in common, it may be proved by any competent evidence that the judgment was in fact given upon such other defence. The plea of judgment recovered, itself is said to be mixed of matter of record with matter of fact: Lytle v. Lee, 5 Johns. 112; Thomas v. Rumsey, 6 Id. 38; Wilson v. Hamilton, 9 S. & R. 429. The principle is well stated by Mr. Justice Nelson in The Packet Company v. Sickles, 5 Wallace S. C. Rep. 592: “ As we understand the rule in respect to the conclusiveness of the verdict and judgment in a former trial between the same parties, where the judgment is used in pleading as a technical estoppel or is relied on by way of evidence as conclusive, per se, it must appear, by the record of the prior suit, that the particular controversy sought to be concluded was necessarily tried and determined — that is, if the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered to have settled that matter as to all future actions between the parties; and further, in eases in which the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde consistent with the record may be received to prove the fact, but even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be conclusive.”

This principle is clearly illustrated in Hawk v. Breidenback, 5 S. & R. 204, which was an action upon an award for damages to the plaintiff’s land between August 10th 1785 and August 4th 1786. The defendant pleaded a former recovery, and gave in evidence a verdict and judgment between the same parties in an aqtion of trespass, the trespass having been laid in the declaration to have been committed August 10th 1785, and continued to November 3d 1788. It was held that the plaintiff might show by parol evidence that the jury in their verdict did not include the damages suffered during the period embraced in the award. “ In trespass with a continuando,” said Chief Justice Tilghman, “the plaintiff may waive the continuando, and prove a trespass at any time before the suit brought, or he may give evidence which goes only to part of the time laid in the -continuando.” He added: “ If the plaintiff did not in truth recover in the former action for the time between 10th August 1785 and 4th August 1786, he will suffer wrong, unless he recovers in this action. And if he might on the former trial confine himself to part of the time laid in the continuando, I see not why he may not now be permitted to show that he did so confine himself, becau.se this evidence does not contradict the record.” Now the case of Coleman v. Coleman, 7 Harris 100, must certainly be considered as-settling, that under the plea of non tenent insimul in partition it may be shown that the parties had bound themselves by covenant not to demand partition — for such in brief was the ruling in that case^ — that the plea of non tenent insimul is the general issue, and means, in other words, that the parties do not so hold together as to be entitled to have partition. It is established by a number of' cases in this court that parol evidence may be given to explain and limit the effect of a judgment wherever it is not inconsistent with the record: Zeigler v. Zeigler, 2 S. & R. 286; Wilson v. Hamilton, 9 Id. 424; Cist v. Zeigler, 16 Id. 282. In Carmony v. Haaber, 5 Barr 305, the charge of the judge to the jury, which had been filed, was referred to as sufficient to prove on what point the former decision had been made; and though in an action of covenant on the issue joined on the plea of “ covenants performed” there had been a verdict and judgment for defendant, the plaintiff was allowed to show by the charge^that the judgment had been rendered against him, because, suing as an administrator on the contract of a decedent for the sale of land, he had neglected to have the-contract proved in the Orphans’ Court, and \vas not therefore in a condition to tender a conveyance before action brought, and could not then compel payment of the purchase-money. It is clear upon these authorities, which might be multiplied if needed, that if there was a judgment for the defendants in the action of partition on the issue raised by the plea of non tenent insimul, it could be explained and limited to its true effect by referencé to the opinion of this court delivered on the writ of error in that case. There it will appear that the position on the part of the plaintiffs in error, which was sustained by the court, and upon which the judgment below was reversed, was that the agreement of August 30th 1787 established a permanent tenancy in common in the ore-banks or mine-hills, and that partition of them could not be had without violating that covenant, which ran with the land, and sacrificing important interests which depended on its maiptenance.

It is urged, however, that the agreement of 1787 was a partition of the land, in the only way in which it could be parted without injustice, by regulating and providing for the enjoyment of the respective shares in severalty. It has been likened to many other instances in the books where a partition is made by a severance of the enjoyment of the whole. As in the case of a mill when it is provided that one tenant shall have the entire mill for a certain term, and the other for an equal term; or one take one toll-dish, the other another, and so alternately: Co. Litt. 165 a. So of an advowson that the tenants shall present by turns: F. N. B. 62; Vin. Abr. Partition, A 2; Bodicate v. Steers, 1 Dickens 69. In every partition by agreement or judgment there must be a severance, so that each tenant shall thereafter enjoy his purpart in severalty. It is impossible to extract such a severance from the agreement and judgment of 1787. On the contrary they are as express as words can be that “ the ore-banks and mine-hills of Cornwall Furnace do still remain undivided to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb and Henry Bates Grubb as tenants in common according to their respective shares.” The clause which has been relied on to show a severance is as follows: — “ It is hereby declared to be the true intent and meaning hereof that neither of the said parties, their agents or workmen, shall interfere or interrupt either of the other parties at any mine-hole by them opened and occupied for the purpose of raising ore.” It is impossible to put any other construction on this clause, taken in connection with the preceding one that the ore-banks shall remain together and undivided as a tenancy in common, than that the parties shall respectively be undisturbed in the enjoyment of their rights as tenants in common to take and use their respective proportions of the ore. It cannot be pretended that it allotted to each tenant in common his mine-holes thus opened and occupied as separate and several inheritances. It clearly implied, if it did not expressly grant, the right to open and occupy other mine-holes. It was a covenant of perpetual peace. Nor is there anything to warrant the inference, which has been attempted to be drawn, that while the title to the soil was to remain in common, there was assured to each party a mining right — an incorporeal easement — separate and distinct from the ownership of the land. If such right was to be unlimited in its extent, it contradicted the express stipulation that the ore-banks should be held by the tenants according to their respective interests; but if these supposed mining rights were to be enjoyed only according to those interests, they were ipso facto merged in the ownership. A man cannot have an incorporeal easement to dig ore in his own fee any more than a right of way over his own close. The incorporeal easement is necessarily extinguished by unity of title and possession. It is unnecessary to consider the operation and effect of the supplementary agreement of the same date as that of August 80th 1787. Whether it gave to the tenants in common incorporeal mining rights under the adjacent soil of the lands assigned and allotted in severalty, or whether it recognised those veins as forming a part of the entire body of ore connected with and belonging to the mine-hills as a corporeal hereditament distinct and separate from the surface and remaining in common, are questions which do not arise upon this record. In either case, however, as far as this argument is concerned the result is the same. If it was an incorporeal easement it was annexed to the ownership of the mine-hills as an appurtenance thereto, and if it was corporeal it was a part of them. The conclusion then seems to be unavoidable, that by the agreement and partition of 1787 there was no severance of the title or enjoyment of the subject-matter.

Nor, as it appears to me, can it be said that these ore-hanks were in any sense appurtenant to the other lands comprised in the partition of 1787. The original titles to them by warrants from the proprietaries of May 8th 1732 and December 2d 1737, were separate and distinct from those lands. A thing corporeal cannot properly be appendant to a thing corporeal: Co. Litt. 121 b. The owners of them and the adjacent tracts might perhaps have limited the use of the ore to the supply of furnaces erected or to be erected on the other lands then held by them in common. There is not a word, however, in the agreement of 1787 which intimates such an intention. Nor was it ever so treated and considered by the parties. Furnaces erected on other lands owned by them in severalty — Colebrooke, Elizabeth, Mount Hope, Mount Vernon, Manada — some of them at a distance of several miles from Cornwall, were supplied with ore from the banks without any question as to the right. Nothing is clearer or better settled than that if these banks could be appendant or appurtenant to the other lands comprised in the partition, or if that agreement can be construed to give merely an incorporeal easement of digging ore for the supply of furnaces erected or to be erected on those lands, they could not without the express agreement of all parties in interest be 'extended to other lands. An incorporeal easement such as a right of way cannot be used by the owner of the dominant tenement to pass to other land adjacent or beyond that to which it is appurtenant: Kirkham v. Sharp, 1 Whart. 323; Jamison v. McCredy, 5 W. & S. 129.

Nor does it seem consonant to reason or probability that the parties to the agreement intended that the ore should be taken from the respective mine-holes without any liability to account. They were expressly to hold and enjoy according to their respective proportions. Such a stipulation would be insensible if that was their intention. That nothing was expressly introduced on the subject, and that the parties, their heirs and assigns continued for a period of sixty years to take ore from their respective mine-holes without any question or demand for account, is susceptible of a satisfactory explanation. The tenants in common during all that time were themselves iron-inasters, taking the ore to be manufactured into iron at their own furnaces. These were charcoal furnaces, and the use of the ore was in very moderate quantities, and in all probability very nearly according to their respective proportions. The ore in the hills seemed almost literally inexhaustible. Forty millions of tons above water-level, capable of being worked by mere sunlight quarrying, and as much if not more below, in the then or any conceivable future condition of their business, rendered it unnecessary to provide for accounts. They did not and could not foresee the introduction of anthracite blast furnaces, nor of new means of easy transportation by steam-engines and railroads, which would make the ore a valuable object of merchandise and sale in distant markets in its raw state. It is enough that there is nothing in the agreement to preclude an account, and in the absence of it, it has not been nor can it be pretended that the mere lapse of time creates a bar or raises a presumption of a grant in the relation in which the parties stood to each other under the agreement and partition of 1787.

Nor is it at all necessary to investigate and decide the question whether tenants in common, taking for their own use a part of the soil itself, as in this instance, could be compelled to account either at common law or under the statute 4 Anne, e. 16, § 27, Roberts’ Dig. 48. Much learning and research on this point have been exhibited by the court below and the counsel on both sides in their printed arguments. It may be, that under the express authority given in the agreement of 1787 to the tenants in common to work their respective mine-holes, they were constituted bailiffs of each other as to all ore taken beyond their respective proportions, so that if sued in an action of account at common law, they could not have sustained a plea of ne unques bailiff. It may be, too, that as to ores taken from the soil itself and consumed or sold by the tenant, a different rule is applicable under the statute of Anne from that which both in England and this country seems well settled as to fructus industriales — that a tenant in common does not receive more than comes to his just share within that statute, if he merely has the sole enjoyment of the property, even though by the employment of his own industry and capital he makes a profit by the enjoyment and takes the whole of such profit: Henderson v. Eason, 17 Queen’s B. 701; Sargent v. Parsons, 12 Mass. 149; Peck v. Carpenter, 7 Gray 283; Woolever v. Knapp, 18 Barb. 265; Dresser v. Dresser, 40 Id. 300; Nelson v. Clay, 7 J. J. Marsh 140; Pico v. Columbet, 12 Cal. 419; Izard v. Bodine, 3 Stockton 404; Raygan v. McCoy, 29 Mis. 356; and see especially as to stone taken from a limestone quarry, Roberts v. Roberts, 2 Jones Eq. 133. That there was any liability for waste has not been and could not be pretended; for it is not waste even in a tenant for life or years to work mines ,or quarries already opened, and here there was implied if not express authority given to make new openings, for the common property could not be fairly enjoyed without such authority. All these questions, curious and interesting as they are, and ably discussed as they have been, are closed, as it appears to us, by the provisions of the Act of Assembly passed April 25th 1850, § 24, Pamph. L. 578, at least so far as this proceeding is concerned. It enacts “that in all cases in which any coal or iron ore, mines or minerals have beein or shall be held by two or more persons as tenants in common, and coal, iron ore or other mineral has been or shall be taken from the same by any one or more of said tenants respectively, it shall be lawful for any one f said tenants in common to apply by bill or petition in equity to the Court of Common Pleas of the county in which the lands lie, praying that an account may be decreed and taken of all coal, iron ore or other mineral taken Fy said tenants respectively; and the said court shall thereupon proceed upon such bill or petition agreeably to the course of a court of chancery, and shall have full power and authority to make all orders, appointments and decrees, interlocutory and final, that may appertain to justice and equity in the premises; and may cause to be ascertained the quantity and value of the coal, iron ore or other mineral so taken respectively by the respective parties, and the sum that may be justly and equitably due by, from and to them respectively therefor, according to the respective proportions and interests to which they may be respectively entitled in the lands.” It must be conceded, I think, that this act is drawn with great ability and precision. It cannot be doubted that its purpose was to give a remedy more liberal and extensive than those afforded either by the common law or the statute of Anne. The word take is carefully used instead of receive, upon which the restricted construction of that statute is based. Even the question discussed in the opinion below as to what constitutes a mine in this country is put to rest; for it employs the terms, “ mines or minerals held in common,” so that ore lying exposed on the surface of the ground is clearly included. It provides that the account shall be taken between all the tenants in one proceeding, and the sum that may be justly and equitably due “ by, from and to them respectively” ascertained, so that if as between any of the parties defendants there is a defence in law or equity which can be set up against an account, it can be made available — whether on the answers before th.e decree to account, or afterwards before the master, it is not now necessary to decide. That the act applies to and governs this case is clearly stated in more than one place in the opinion of this court in Coleman v. Coleman, 7 Harris 110, 112.

It is urged, however, that before any liability to ■ account can arise it must appear that the co-tenant upon whom the demand for an account is made has actually taken more than his just share or proportion of the entire mass of ore in the beds or banks. It might be enough to say that the Act of Assembly makes no such provision. It applies to any case where coal, iron ore, or other mineral, has been or shall be taken from the common property. It does not say or imply more than a just share or proportion. The remedy would be illusory if such a construction should prevail. No one can tell what the just share or proportion of each .tenant will be until the whole mine or bank is exhausted of its entire deposit. In such a mass, practically inexhaustible for generations to come, it would make the one ninety-sixth part equal to the other ninety-five, and really destroy to that extent their proportionate value. As was well said in Barnum v. Landain, 25 Conn. 150, the case of an iron mine divided into twenty-four shares : “ The error of the defendants lies in this: they contend that they own absolutely whatever they get out Of the ore-bed, if it is not too much, whereas they own only one twenty-fourth part of what they get out, and must account at reasonable times for the other twenty-three parts to the plaintiff.”

Concluding then, as we do, that the parties to this proceeding are tenants in common of the ore-banks in question in the proportions set out in the bill and admitted in the answers, and that they are liable to account, under the Act of Assembly of April 25th 1850, for all iron ore taken by them respectively, it remains to inquire upon what basis the value of such ore is to be ascertained so as to arrive at “ the sum that may be justly and equitably due by, from and to them respectively therefor, according to the respective proportions and-interests to which they may be respectively entitled in the land.”

It seems that even where a trespass has been committed, if innocently and unintentionally, by working over a party’s own line into his neighbor’s adjacent tract, the measure of damages is— besides any actual injury to the land — the value of the mineral or timber taken in place, or at the farthest when first severed. There is some conflict in the authorities, which need not now be adverted to: Morgan v. Powell, 8 Queen’s Bench, 278; Martin v. Porter, 5 M. & W. 351; Wild v. Holt, 9 Id. 672; Wood v. Marewood, 3 Queen’s Bench 440, n.; Bennett v. Thompson, 13 Iredell (Law) 146 ; Forsyth v. Wells, 5 Wright 291; Lyon v. Gormley, 3 P. F. Smith 261. In Herdic v. Young, 5 P. F. Smith 176 — which was an action of replevin — it was held that where the defendant, mistaking his line, had cut logs on an adjoining tract, and then drove them down to the boom in the river below, the measure of damages is the value of the logs in the boom, less the cost of cutting and hauling them to the river and driving them there. But the case of the defendants is entitled to still more favorable regard than that of a trespasser, though by mistake or ignorance. There the plaintiff’s property has been taken wrongfully and against his will. Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share than by taking at'the same time the shares of his companions. The value of the ore in place is, therefore, the only just basis of account. This is the same as the value of what is called ore-leave — that is, what the right to dig and take the ore is worth. Indeed all parties, as well as the master and court below, seem eventually to have settled upon this basis. But how is the value of ore-leave to be ascertained ? It is evident, in the nature of things, that it can have no general market price. It will depend necessarily upon the position and circumstances of each particular mine, as well as on the character of the ore. The value of it at the pit’s mouth depends upon its quality and its proximity to the furnace where it is to be used, and on the means of transportation. In addition to this the price of the ore-leave will be influenced by the expense and risk of the process of mining, or of taking it. from its place to the pit’s mouth. It is evident that the price given for ore-leave in other mines or beds can afford no safe criterion, unless they should be precisely similar in all these respects to the one in question. As to the Cornwall ore-banks no sales had ever been made of ore-leave. No evidence was laid before the master as to what, in the opinion .of experts, ore-leave in these banks would have commanded in the market. The master arrived at it by ascertaining the market value of the ore at the pit’s mouth, and then deducting from that the cost of mining. We cannot see that under all the circumstances any more just and equitable mode could have been adopted. We do not mean to say that it would hold in any other case than the one now before the court — certainly not where the mining is expensive and hazardous. Where the tenant in .common of a coal-mine, for example, must with great outlay of capital construct expensive machinery, and incur all the risks of such an undertaking, the value of ore-leave or coal in place could not be ascertained by so simple a calculation. The usual profits on capital embarked in such a hazardous enterprise with the proper allowance for personal skill and superintendence would seem to be no more than fair and reasonable deductions. Certainly any business man, sitting down to calculate what he ought to give for ore-leave, would take all these elements into consideration. Otherwise, with his own capital and at his own risk, he would separate the ore from its natural position, and place it on the surface enhanced in value, for the benefit of a stranger. We leave the. rule in such a case to be determined when it arises. But the case of the Cornwall ore-banks is very different and very peculiar. Very little outlay'of capital was required, — the wages of day laborers and the pick-axe and shovel, with occasional charges of powder for blasting, made, up all that was to be provided. Tbe returns were immediate: the ore was removed to be used or sold as soon as loosened. No personal skill or superintendence by the tenants in common was shown, and whatever was necessary was hired and allowed in the cost of mining. Besides upon the determination of the master and court below on the subject of interest, and which for this and other reasons we think was right, the proceeds or value of the ore in the hands of the defendants, who took more than their proportion, remained in their possession to be employed by them as capital without charge. No interest account is made out, except from the time of closing the account, January 1st 1859. No possible hazard of loss was incurred, except thatf of bad debts, but with that the tenants calling for the account had nothing to do. The value at the pit’s mouth is the cash value, that for which it might have been sold for cash, and indeed it would hardly seem questionable that one tenant in common, after mining any determinate quantity, might separate his own share, and give notice to the other tenants to remove theirs. The tenants at their respective mine-holes under the agreement of 1787, may have been bailiffs of their companions to dig and take, but certainly they were not their bailiffs to manufacture or sell. If they were, the account must be settled on entirely different principles. The peculiarity in the ore-banks now in question cannot perhaps be better stated than in the language of the defendants, Robert Coleman and George Dawson Coleman, in their further answer, which dispenses with the necessity of a reference to the testimony of the witnesses which fully confirms it. “ The uniform mode of working these hills for a century past has been by superficial diggings in the manner usual in levelling hills or digging gravel from hills or mounds thereof above the surface of the land, when the intent was to remove the whole of the hill, and level the site thereof. There has never been any subterranean working for iron ore, nor any of the expensive contrivances usual in mining; the work has always been prosecuted by daylight, and there have been no cuttings or excavations of great&r depth than thirty feet, except the cuttings in the breast of the hills from the base or near the base, and which have been thus worked into, and upon the face of the hill to a greater depth, but never lower than the level of the road, by which the ore when dug is carried away. The motive for making these deeper cuttings, rather than continuing the surface diggings, has been the greater convenience of loading in railway cars, which are brought to the side of the hill. In no case has there been any work done in getting iron ore in the manner of ordinary mining, but always by such superficial and surface diggings as have been described. And the workings are in another particular varied from that usual in mining, viz.: that the whole body of the hill, which is dug into, as well that which lies below the surface as the surface itself, is carried away and used as iron ore for smelting. * Nor is there nor can there be for years to come any distinction between the respective owners, either in the facility of working or in the quality of the ore.”

Upon the whole then w.e are of the opinion that, looking at the peculiar character of these ore-banks and the evidence submitted by the parties, the master and the' court below adopted the true mode of ascertaining the value ;of the ore, and arriving at the sums justly and equitably due by the respective parties, who had taken it in excess of their shares.

In regard to the conclusions of the master upon the evidence as to the market value of the ore at the pit’s mouth, the deductions proper to be made, and the other .questions of fact passed upon by him, we see no reason for the court below to interfere. The office of a master in chancery is like that of a jury in the courts of common law. If there has been a clear mistake or a palpable abuse of power either of them ought to be corrected. But if anything should be done or inquiry instituted beyond that as to matters of fact, the office of master would prove but little aid in the administration of justice — the court being compelled to go over all the evidence again, and thus their labors be greatly and unnecessarily increased: Mason v. Crosby, 3 Woodb. & Minot 258. The numerous and varied exceptions to the master’s report and to the proposed decree were as we think properly disposed of by the learned court below.

Decree affirmed; appeals dismissed — the costs of these appeals to be paid by the parties in the proportion of their respective interests.