
    159 F. 633
    MANLEY et al. v. BOONE et al.
    No. 1,343.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 3, 1908.
    
      Carr & Nye, W. H. Adams, and Curtis H. Lindley, for appellants.
    E. M. Gibson and William R. Davis, for appellees.
    Before GILBERT and ROSS, Circuit Judges, and HUNT, District-Judge.
   ROSS, Circuit Judge

(after stating the facts as above). Sections 397, 404, 405, and'409, of part 4, of the Statutes of Alaska, are as follows:

“Sec. 397. When several persons hold and are in possession of real property as tenants in common * * * any one or more of them may maintain an action of an equitable nature for the partition of such real property according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appears that a partition cannot be had without great prejudice to the others.”

“Sec. 404. If it be alleged in the complaint, and established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it shall adjudge a partition according to the respective rights of the parties as ascertained by the court, and appoint three referees therefor, and shall designate the portion to remain undivided for the owners whose interests remain unknown or not ascertained.

“Sec. 405. In making the partition, the referees shall divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them therein. The referees shall make a report of their proceedings specifying therein the manner of executing their trust, describing the property divided, and the shares allotted to each party, with a particular description of each share.”

“Sec. 409. If the referees report to the court that the property of which partition shall have been adjudged, or any separate portion thereof, is so situated that a partition' thereof cannot be made without great prejudice to the owners, and the court is satisfied that such report is correct, it may thereupon, by an order, diréct the referees to sell the property or separate portion thereof so situated.”

It is contended on the part of the appellants that .the court below erred: (1) In taking upon itself the function of making the partition, instead of appointing referees for that purpose as required by the statute; (2) In appointing two referees, instead of three, as required by the statute, and in limiting their powers to the mere establishment of landmarks and monuments designating on the ground the lands fixed by the court; (3) in appointing a receiver to take charge of the personal property of the parties, or to divide or sell the same as he might determine ; (4) in decreeing that the receiver might, in case the cabins, dams, sluices, and ditches belonging to the parties could not be divided, allow to one or the other compensation; and (5) in adjudging that actual partition could be made, and in refusing to order a sale of the premises as a whole, and dividing the proceeds.

In respect to the last point, a careful consideration of the record satisfies us that we would not be justified in interfering with the finding of the court below to the effect that the property in question can be partitioned without great prejudice to the parties in interest. It is quite true that mining property, from its very nature, is not, as a rule, susceptible of division, and consequently that partition of such property must generally result' in its sale. See Aspen M. & S. Co. v. Rucker (C.C.) 28 F. 223; Brown v. Challis, 23 Colo. 145, 46 P. 679; Lenfers v. Henke, 73 Ill. 405, 24 Am.Rep. 263; Hall v. Vernon, 47 W.Va. 295, 34 S.E. 765, 81 Am.St.Rep. 791; Freeman on Co-Tenancy and Partition (2d Ed.) 435, 537. Still, not only may such property be divided among the owners in proportion to their respective interests, but, according to the terms of the statute under which the present proceedings were taken, must be so divided unless it be made to appear that a partition thereof cannot be made without great prejudice to the owners. That is a question of fact upon which the evidence in the present case is very conflicting, and we think no good reason appears why the conclusion of the trial court upon it should be disturbed. See McKinley Creek Mining Co. v. Alaska Mining Co., 183 U.S. 563, 22 S.Ct. 84, 46 L.Ed. 331; Lilienthal v. McCormick, 117 F. 89, 54 C.C.A. 475; Thallmann v. Thomas, 111 F. 277, 49 C.C.A. 317; Exploration Co. v. Adams, 104 F. 404, 45 C.C.A. 185; Mitchell v. Cline, 84 Cal. 418, 24 P. 164. Accepting this fact as found by the trial court, it results, necessarily, that there was no error in the conclusion of the court below to the effect that the partition of the property should be made.

We are of the opinion, however, that the court below erred in taking upon itself the function of dividing it among the various owners, and in designating two referees to mark upon the ground the lines so fixed in the first place by the court itself. The requirement of the statute, which was the basis of the court’s action, is that in the event the court adjudges a partition according to the rights of the parties, instead of a sale of the property, it shall designate three referees, “who shall divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, designating the several portions by proper landmarks.” And when the three referees so appointed shall have divided the property, “quality and quantity relatively considered,” among the respective parties, in accordance with their rights as fixed by the interlocutory decree of the court, they are, by section 409 of the Alaska Statutes above quoted, required to make a report to the court of their action, and “if the referees report to the court that the property of which partition shall have been adjudged, or any separate portion thereof, is so situated that a partition thereof cannot be made without great prejudice to the owners, and the court is satisfied that such report is correct, it may thereupon by an order direct the referees to sell the property, or separate portion thereof, so situated”; that is to say, vacate its interlocutory order directing a partition, and adjudge a sale instead. It is plain, therefore, from the statute itself, that the court cannot itself make the division of the property between the parties, except in the indirect mode of confirming the report of the referees appointed for the purpose of carrying out the order of partition. And to that effect are the authorities. Dondero v. Van Sickle, 11 Nev. 389; Freeman v. Preston (Tex.Civ.App.) 29 S.W. 495; Garth’s Guardians v. Thompson (Ky.) 63 S.W. 41; Eakins v. Eakins, 112 Ky. 347, 65 S.W. 812; Lawson v. Bonner, 88 Miss. 235, 40 So. 488, 117 Am.St.Rep. 738; George v. Murphy, 1 Mo. 777; Brown v. Cooper, 98 Iowa, 444, 67 N.W. 378, 33 L.R.A. 61, 60 Am.St.Rep. 190; Freeman on Co-Tenancy and Partition (2d Ed.) §§ 526, 543.

We think these provisions of the decree appealed from also erroneous: “That a receiver shall be appointed to take charge of the personal property, and to divide the same in kind if practicable, and, if the same cannot be done, then that the said property shall be sold by him in the manner prescribed by law for the sale of personal property on execution. That if the cabins, dams, sluices, and ditches cannot be divided, then that said receiver shall allow to one or the other of the parties hereto just compensation for the same.” This portion of the decree treats the property therein referred to as personalty, entirely disconnected from the real property which was the subject of the action. Such property could not be the subject of partition in that action, except so far as it constituted a part of the realty, and in so far as it pertained to and constituted a part of that realty should be dealt with by the three referees authorized by the statute to be appointed by the court for the purpose of making the division between the respective parties to the suit, subject to the approval of the court.

The judgment is reversed, and the cause remanded to the court below for further proceedings not inconsistent with the views above expressed.  