
    HENRY W. SEALE v. FRANCISCO SOTO, WILLIAM A. NEWELL, JOHN BOULWARE, ARMENIA A. PITMAN, JULES MERCIER, LINDSLEY LEWIS, and MARIA LOUISA GREER, and PHŒBE J. SEA-TON, D. M. W. SEATON, and MARY E. SEATON, Intervenors.
    Rule for Partition of Lands in respect to Improvements thereon.—In an action for partition by one tenant in common of lands granted his cotenants, where the tenants have severally made valuable improvements on distinct portions of the lands sought to be partitioned, the Court, by way of interlocutory decree, ordered "that there be set off to the several parties such portions of the premises as will include their respective improvements; provided always, that the rights or interests of neither of the other parties be prejudiced thereby.” Held, that the order declared the proper rule to govern in such cases, and that the judgment would not be disturbed unless the rule had been departed from.
    Appeal from the District Court, Third Judicial District, Santa Clara County.
    This was an action by one of the several tenants in common against the others, for the partition among them of the Rancho Rinconada del Arroyo de San Francisquito, situated in Santa Clara County.
    The following portions of the final judgment rendered recite the material facts of the cause, to wit:
    “ The said plaintiff having on the 12th day of December, 1865, filed his complaint against the said defendants to procure and cause to be made a partition of the lands described in said complaint among the owners thereof, in proportion to their respective interests therein; and the said plaintiff having on the 10th day of April, 1866, filed in the office of the County Recorder of Santa Clara County, in the State of California, (the same being the county in which said lands are located,) a notice of the pendency of said action, setting forth the nature of the action, the object thereof, and the relief sought, and also a description of the premises affected by said action, and of all other matters required by law to be set forth in such notice; and each and every of said defendants having been personally served with the summons in said cause, and each of them having appeared therein and filed their respective answers to said complaint; and Phoebe J. Seaton, and D. M. W. Seaton, as executors of the last will and testament of George W. Seaton, deceased, and Phoebe J. Seaton, D. M. W. Seaton, and Mary E! Seaton, in their own behalf, as the sole heirs at law and devisees of said George "W. Seaton, deceased, filed their intervention in said cause, and asked that they be allowed to unite with the plaintiff in the prosecution thereof; and an order having been made by this Court in this cause allowing the said intervention, the said defendants, and each and every of them, filed their respective answers to said complaint of said intervenors; and the rights of all the parties hereto, plaintiffs, defendants, and intervenors, having been put in issue and tried and determined, after due proceedings in that behalf had; and this Court, by its interlocutory decree, made and entered herein on the 23d day of January, A. D. 1867, having ascertained, settled, and declared the rights, interests, and proportionate shares of the several parties hereto, respectively, in and to the said premises described in said complaint, to wit: * * * ' and this Court having by its interlocutory decree ordered and adjudged that partition of said rancho and premises be made between the owners thereof according to their respective interests therein, as the same had been finally settled and determined by this Court, and appointed C. T. Healey, Jos. Scott, and R. J. Weeks as referees, to make partition of said premises in accordance with the directions of said interlocutory decree; and the said referees having been severally duly sworn as required by law, did proceed in accordance with the directions of said interlocutory decree, and make a fair and just division, allotment, and partition of said premises, and allotted, separated, and set apart in severalty to the several owners thereof their respective shares, quantity, and quality, relatively considered, according to the rights, interests, and estates of the several parties hereto, as the same were by the said interlocutory decree ascertained, determined, and decreed by this Court, designating the several portions by proper land marks, etc.; * * * and said referees having on the 6th day of May, 1867, filed in this Court their written report of their proceedings, etc.; * * * and the said defendants, Jules Mercier and John Greer, and his wife, Maria Louisa Greer, having filed exceptions to said report of said referees, and said exceptions having been by the Court heard and duly considered, an order was made that the same be denied. Whereupon the Court, having examined the said report, and heard the arguments of counsel, and being fully advised, doth now here order, adjudge, and decree that the said report of said referees be and the same is in all things approved,and confirmed; and the partition of said premises, and the allotments made by said referees to the respective parties hereto, be and the same are hereby declared effectual forever, to wit: * * * ”
    Defendants Mercier and Greer appealed, and in their statement on appeal set forth the several affidavits in support and opposition to the report of the Commissioners.
    The other facts are stated in the opinion of the Court.
    
      B. S. Brooks, and Thomas Bodley, for Appellants.
    
      S. O. Houghton, for Respondent.
   By the Court, Rhodes, J.:

By the interlocutory judgment it was ordered “that there be set off to the said several parties such portions of said premises as will include their respective improvements; providecl, always, that the rights or interests of neither of the other parties be prejudiced thereby; and that there be set off to the said Henry W. Seale his share or interest upon the south side of said rancho, in such manner as to include his improvements, provided that the same can be done without prejudice to the rights of any of the others in interest.”

Counsel for the defendants have cited many authorities to prove that the first portion of the order is equitable, just, and proper; but the proposition is not doubted by the other side, and cannot be successfully assailed.

The question presented is, whether the Commissioners have erred in the application of the rules laid down .in the interlocutory judgment. Ho error appears on the face of their report; and, as none will be presumed, the report ought not to be set aside, unless the parties excepting to it show such a state of facts as will make the alleged error affirmatively and clearly appear.

It is not shown that the tract of land allotted to defendant Mercier is not equal in value to his share of the whole rancho. Had the whole road been excluded from his tract, it would not necessarily follow that he would have been entitled to a further amount, equal in area to that occupied by the road. Whether the road increased or diminished the value of the tract is not shown, nor does it appear what was the opinion of the Commissioners on that point; hut it is certain that they were of the opinion that the tract allotted to him, including the road, was equal in value to his share of the whole lands.

It is not alleged that the tract set off to him does not include his improvements, but he complains that the tract set off to the Seatons was not located on lands in his (Mercier’s) possession. The Seatons have not complained of the partition, and Mercier is not entitled to except to the report on their behalf. The fact that litigation was pending between him and the Seatons respecting the title under which they claim, does not give him any right to act for them; for the interlocutory judgment ascertained and fixed the rights of the several parties in the lands, and such determination, whatever may be the result of the litigation alluded to, is conclusive in this partition.

It is alleged that Mrs. Greer’s share should have been set off so as to include all of her improvements. . Ho complaint is made that the value of the tracts allotted to her is not equal to the value of her interest in the whole rancho. Ho facts are stated by her, or are shown by the affidavits presented by her, going to prove that the tract she now wishes set off to her could have been allotted to her without producing injury to her co-tenants. There is the general statement that her share could have been set off to her as she now desires without injury to the other parties; but this is denied by the other side. Had her share been set off as she now demands, it clearly would have interfered with the location of the plaintiff’s share at the south side of the rancho, as ordered by the interlocutory judgment. The tract at the northeastern portion of the rancho was set off to her, so as to include a house and improvements formerly in her possession; and this was done, as one of the Commissioners testifies, at her request, made through her husband. Her husband denies that he made such request; but we could not say that the Court erred in giving the greater credit to the statement of the Commissioner.

And so of the tract at the embarcadero. Both Mrs. Greer and the plaintiff claimed to be in possession of the tract; but the Commissioners found that the plaintiff was in the possession, and allotted it to him.

The Commissioners found it impossible to allot the portion either of Mrs.- Greer or the plaintiff in one compact body, and the plat very plainly shows that the lands allotted to the plaintiff are quite as inconvenient in form as those allotted to Mrs. Greer.

A considerable portion of the lands allotted to the plaintiff are situated at the northern side of the rancho, and it is but reasonable to presume, in the absence of evidence to the contrary, that neither the lands allotted to the plaintiff, nor those to Mrs. Greer, could have been set off in other portions of the rancho without injury to the interests of the other tenants in common.

The statement that the lands are not so set off as to include in the portion allotted to any one of the parties all of his or her improvements, is not sufficient ground for setting aside the report; but it should have been further shown that the allotment could have been so made as to include in the portion of either more of his or her improvements without injury to the rights or interests of the others.

Judgment affirmed.  