
    John P. Allen, Petitioner for partition, versus Silas C. Hall & persons unknown.
    
    On petitions for partition, all questions concerning the title of the parties, and the nature and proportions of their interests, are for the jury; and the interlocutory judgment, which is conclusive, should conform to the verdict.
    Commissioners to malee partition have no judicial powers, like referees, to determine any such question.
    When an interlocutory judgment has been rendered for a fractional part of certain premises, described by boundaries, the petitioner is entitled to that proportion of all the real estate within the boundaries, unless specifically limited by exceptions or reservations.
    Commissioners may determine the location and boundaries thereof; and, if such question arises, what the whole estate is, by distinguishing personal property from real estate.
    If they err in deciding these questions, the Court will not accept their report, but will recommit the case to them.
    The statute of 1855 (substantially the same in the revision of 1857) changed the relative rights of tenants in common, where one has occupied a part, in severalty, and has made improvements thereon.
    It was intended by that statute to provide that if one had so held and made improvements without “ the consent ” of his co-tenants, he cannot claim to have his share so set out as to embrace such improvements, but may be compelled to take some other portion of the estate.
    Still, he is to have the entire benefit of the improvements made by him ; and if not assigned to him, specifically, he shall have their value over and above his share of the common property.
    If he has had exclusive possession of any part of the premises “ by the consent” of the co-tenants and has made improvements thereon, he is entitled to have such part assigned to him, unless, exclusive of the improvements, it exceeds his share.
    The questions arising under this statute, as they refer to the individual interests and proportions of the parties, must be determined by the jury before the interlocutory judgment; and the result should be incorporated in the judgment, that the proper directions may be given in the warrant of partition.
    
      If matters are submitted to the Commissioners under the instructions of the Court, which they have no authority to decide, exceptions cannot be taken thereto at a subsequent term.
    The case of Parsons v. Copeland, 38 Maine, 537, as here explained, is not in conflict with the doctrine of this case.
    Exceptions from the ruling of Appleton, J.
    This was a petition eor partition, in which the petitioner prayed to have set off to him, to hold in severalty, one-tenth part of the premises described in his petition, (a tract of land in St. George of about 150 acres,) which he claimed in fee simple, and four-tenths of the same premises, for the life of one Mason.
    The said Hall, and persons unknown, were alleged in the petition to be co-tenants. The said Hall appeared; and at the October term, .1858, the petitioner recovered judgment for partition, and commissioners were appointed to make partition accordingly.
    The commissioners at a subsequent term made their report of the partition made by them; and the said Hall in writing set forth his objections to the acceptance of their report, and moved that it be recommitted. The Judge presiding at that term sustained the motion and ordered the report to be recommitted, "the commissioners to assign to each tenant, the improvements by him made, with the consent of his co-tenants, in addition to his share in the common estate, as it was without such improvements.”
    The report of the commissioners, under the order of the Court before named, was offered at. the October term, 1860. In their report, they set forth, "we have examined the premises with the parties; and having heard the testimony of witnesses produced respecting separate occupation and improvements, we found as matter of fact, that no one of the tenants in common has had the exclusive possession of any part of the estate, and made improvements thereon by the mutual consent of the other co-tenants. Wherefore we do assign and set out to said James P. Allen,” &c.
    The said Hall filed objections to the acceptance of the report, which were, that the assignment made to the petitioner is unjust and illegal, because,—
    (1.) Isaiah Fogg, one of the tenants, and owners in common, with the petitioner and others, of the premises which are described in the petition, and of which partition is made by said report, being in possession of a portion of said premises, did, since the filing of the petition, rightfully erect, on that portion of the common property which was occupied by him, valuable buildings; to wit, — a dwelling-house and outbuildings thereunto attached, for his own use and benefit, of the value of $1500, and has also greatly improved the land and increased the value of that portion of the common property, building wall and fences thereon, and by bringing the soil up from a state of nature to a high state of cultivation, which buildings and improvements were the exclusive property of the said Fogg. Yet the said commissioners, disregarding or mistaking their duty under such circumstances, in estimating the value of the entire property of which they make partition, appraised the dwelling-house and buildings aforesaid, and the other, improvements of said Fogg, thereby giving the petitioner a share of their value, and do, by their said report, assign to the said Allen, a portion of the value of said improvements, without leaving to the said Fogg or his grantees, or assigns, or the other owners in common with the petitioner, and especially this respondent, an equivalent therefor. Said commissioners having assigned to the petitioner one-tenth of said premises in fee and four-tenths of the same for the life of Jonas Mason, as said premises now are, including said improvements, instead of taking into account the value of said improvements made by said Fogg, and making the assignment in accordance therewith, as the law requires.
    (2.) Because the portion of the premises which had been improved by said Fogg or his grantees, or assigns, were not reserved for, or assigned to him, but were in part assigned to the petitioner.
    (3.) Because great injustice is done to the respondent and the other tenants in common, by the assignment of too large and too valuable a share of the common property to 'the petitioner, which has been made in consequence of the appraisal of the improvements as aforesaid; by reason of which, in a future division of the residue of said premises, between said Fogg or his grantees, or assigns, and this respondent, a less share must be assigned to this respondent than he is justly entitled to, and less than would be, if no more than the petitioner’s just share of the said premises had been assigned to him by the report.
    (4.) Because said commissioners, in estimating the value of the property of which they make partition, appraised the dwellinghouse, which was erected by said Isaiah Fogg, of the value of $1500, within the exterior bounds of said premises, as described in the warrant, but not upon the land or soil of said premises, nor in any way attached or affixed to them, as part of the freehold, but which was erected upon a granite ledge, by the consent of the owner thereof, and which ledge was in no part owned by the petitioner, and in which he had tuo interest, and which dwellinghouse was the exclusive property of said Fogg and his grantees, and which is in no part the property of the petitioner. And the said commissioners assigned to the petitioner a share of the value of said dwellinghouse, not by assigning to him a part of the dwellinghouse itself, but by assigning to him a much larger proportion of the common property, by reason of their appraisal of the said house, as a part of said property; thereby doing great injustice to this respondent.
    (5.) Because said commissioners, in their appraisal of the property and premises of which they make partition, included a dwellinghouse of the value of $1500, built by said Fogg, and other improvements made by him upon a specific proportion of said premises, which had been occupied and claimed by said Fogg and his grantees for more than six years, and in which .improvements the complainant has no interest. Wherefore he prays that the report may be recommitted, &c.
    
      At the May term, 1861, the petitioner’s counsel moved that the report be accepted; and the counsel for Hall offered to prove the allegations contained in the objections filed, and also, further facts, showing the assignment illegal and inequitable. But the presiding Judge ruled that the evidence' offered was inadmissible; that the objections made to the report, if sustained by proof, would not invalidate it; and ordered that the report be accepted.
    The respondent, Hall excepted. •
    
      Gould,
    
    in support of the exceptions contended; in reference to the law as applicable to the facts of this-case, under the statutes now in force,—
    (1.) Whether Fogg’s improvements were made by consent of the other co-tenants or not, it was the duty of the commissioners " to consider their value and make their assignment of shares’in conformity therewith;” (R. S., c. 88, § 16;) whether they were made before or after the interlocutory judgment.
    For the construction and purpose of this statute, it is well to look at its history. In 1851, the ease of Parsons v. Copeland,, (38 Maine, 537,) came before this Court. It was then made known to the public, that, — "if buildings are placed upon the land by one of the co-tenants before the petition is filed and no question is presented in the proceedings whether they are a part of the common property or not, the interlocutory judgment establishes the title of the petitioner to a share of them.
    This would work no injustice if there wHs any mode in those proceedings by which a respondent, situated as Hall is, could put that question in issue in a trial on the petition. But how is this to be done ? The respondent does not claim them. He cannot plead title in himself. They belong to another co-tenant, who is not made a party.
    Again : — the Court in that case intimate that, if improvements are made, a house is built, by one of the co-tenants, at any time during the pendency of the petition, so that the question of title to such house could not be settled by the interlocutory judgment, for that settles title at the time of petition only; and it may be subsequent even to it, and before the partition, then the improvements go to the petitioner, unless the person making them, can show the petitioner’s consent.
    Thereupon the Legislature intervened, to provide against injustice in "all cases.”
    Laws of 1855, c.' 157. "In all cases of partition where there shall have been a sole and exclusive possession and occupation of a part of the land or real estate to be divided, by any one or more of the tenants in common, by mutual consent; and improvements shall have been made by buildings or otherwise by such tenant or tenants on the parts so occupied by them exclusively, the commissioners appointed to make partition, shall assign to each tenant so making improvements, the portion on which he or they shall have made the same. And in all cases of partition, the commissioners shall take into consideration the value of improvements made by any tenant in common, and make their assignments in conformity therewith.”
    Here are two distinct provisions. The first relates to a particular class of cases ; and the other to all cases.
    The latter relates, not merely to improvements on land occupied by "mutual consent,” but to "improvements” made by "any tenant in common,” and not to a limited class, but to "all cases of partition.”
    The last clause of the section is distinct from and independent of the first, separated from it by a period.
    It would do violence to every rule of construction, to make it dependent upon the first, and limit it by the class of cases there described.
    Sect. 16, R. S., is the same in effect; condensed, to be sure, but containing distinctly both elements of the law of 1855.
    But' it may be argued that the commissioners cannot settle tiüe. What then? Is the respondent to have his property taken away from him and given to the petitioner ? Has he lost it by neglecting to have that question settled on the trial of the partition? That he could not do. This dwellinghouse was put upon the premises after the petition was tiled, and " the judgment for partition must be based upon the petition and the estate therein described.” Parsons v. Copeland, before cited. And, according to the decision in that case, this fact was to be determined by the commissioners.
    The only decision the commissioners have to make is, whether the particular piece of property in controversy is included in their commission. It is simply the performance of their duty, to find the property which they are to divide; to identify it. In doing this, they cast out that which they are satisfied was no part of the property described in the petition. In one sense, this is a determination of the " right” of property, but an indispensable one; a power always and long exercised.
    I submit, that the last clause of the opinion in Ham v. Ham, 39 Maine, 219, was not well considered. It is a dictum merely, the point not arising in the case, as the statute of 1855 was not enacted until after it was made up.
    It is not consistent with the decision in Parsons v. Copeland, already cited, as, in that case, the duty of the commissioners to determine whether a building was put upon the premises after the filing of the petition — and, if so, whether under such circumstances as to become a part of the freehold, is clearly recognized.
    *But, in no case, can this question be tried on the trial of the petition. No mode is provided. That decision was in 1854. By the law, as it then stood, buildings attached to the freehold, though erected by one tenant, became the common property of all. If erected after the petition was filed, the commissioners were to determine whether so as to become common property. If attached to the freehold, then they did. If not, then the question of consent was to be decided by the commissioners, and their appraisal made accordingly.
    Under the law of 1855, re-enacted in R. S., the facts which are to govern the rights of the parties are changed; but the means of ascertaining them remain the same.
    Those improvements made before the petition is filed, it is said, must be determined at the trial on the petition. But, if this be true, which I contest, those made afterwards cannot be adjudged- on that trial, because they are not alleged to be of the common property; they were not in esse, -at the time of the allegation. ■
    But, if it be urged, that this is determining a right of property, in which the parties are entitled to a jury trial, I reply, that the objection is as broad -as it is long. If it cannot be done against the petitioner, it cannot be done against the respondent. .
    Fogg’s house was not a part of the common property at the time the petition was filed; its title is not, therefore, settled by the interlocutory judgment. And, if the commissioners cannot exclude it from the common property, because it would diminish the petitioner’s right, they cannot include it, because it would diminish the respondent’s right.
    But there aré a gTeat many rights of property, incidentally settled in judicial proceedings, without the privilege of jury trial. The case of partition' of real estate is one of them. The "writ of partition” is older than the constitution. The practice had always been for the committee appointed to set out the proportions of each, by metes and bounds; to do many things which affected and indirectly decided rights of property. Trial by jury can only be demanded where it has not been " heretofore otherwise practiced.” (Sect. 20, Art. 1, Const, of Maine.)
    ■ (2.) As to the fifth objection, the respondent can have no part of these betterments of Fogg, even if the judgment in this case affects him 'as though' he were a party to the record. Baylies v. Bussey, 5 Maine, 153.
    
      Even if legally competent under any circumstances, there was no possible way in which the question of these betterments could have been put in issue, on the trial of the petition, for they were all made since the petition was filed, though more than six years before the assignment. The petition was filed in 1849.
    (3.) The fourth objection to the report should have been sustained. That portion of the premises where Fogg built his house, was a bare ledge, upon which he erected if.
    May not one, owning all the granite ledge, or the lime rock, or slate, or coal, in certain premises, erect buildings upon them for bis own use, while quarrying, without the buildings becoming the .property of the owners of the soil, whether they are erected with or without the consent of sncli owners?
    Here is a kind of divided, title, one set of owners to the soil, another to the quarries.
    
    Quarries are a part of the really, they pass by deed, and a widow may have dov;er in them, though her husband did not own the soil under them.
    If it be said, that the interlocutory judgment settled the title to soil and quarries, land and ledge, I reply, that this is the case as to these parties only. It docs not affect Fogg’s rights.
    
    
      Ituggles, contra, argued : —
    1. That the subject matter of the objections taken to the report has been before presented, and a full hearing had on testimony and argument, (in behalf of the objections,) and, under special instructions of record,'the commissioners have made this report, specially finding that they have conformed to the instructions.
    2. That no objections or exceptions having been taken when the decision was made a,nd so entered, of record on the docket, it is too late now to entertain exceptions taken at a subsequent term.
    
    3. That the matter having been so passed upon by the commissioners it is conclusive, — the objections and exceptions being an appeal from the judgment of the commissioners in matter of fact, to the judgment of the Court.
    
    4. That the supposed outstanding title to all the ledges underlying the whole farm, cannot be referred to, or decided by the commissioners.
    
    5. That the interlocutory judgment is conclusive upon all rights and title, as between the tenants in common, and so far as any legitimate action of the commissioners is concerned, and so far as they may, in any way, be involved in this process of partition.
    
    6. That no tenant in common, after process served, or at any time after petition filed, (or before,) can secure to himself an exclusive right to a particular part of the premises, against his co-tenants, by any erections or adverse exclusive possession, against their will and without their consent.
    7. That, if he claims any such acquisition, he must present it and have it decided before the interlocutory judgment.
    8. That the statute, authorizing the tenants in common to plead separately by brief statement, without any general issue, gives them the opportunity to have all their separate rights and interests determined by Court and jury prior to the interlocutory judgment; and it is too late to make any separate claim of right or title after such judgment.
    9. That the statute, prescribing the duties of commissioners in respect to the disposition of separate "improvements,” was not intended, "in disregard of an important constitutional guaranty,” to authorize the commissioners to determine such rights -of property , but is only directory to them as to what disposition,they shall make of such improvements.
    
    10. That if, 'in some instances, such rights of property have been referred to commissioners without objection, it cannot take away the constitutional rights of others, when they choose to invoke its aid for their protection.
   The opinion of the Court was drawn up by

Davis, J.

In England, a person having an interest in lands as a joint tenant, or a tenant in common, may compel a partition by a bill in equity, or by a writ of partition at common law. The same remedies obtain in this country, in those States where the courts have general equity jurisdiction. 4 Kent’s Com., 364. But there are serious difficulties attending both of these remedies. If there is any doubt about the legal title, a bill in equity cannot be maintained until that title is determined by a suit at law. Cartwright v. Pultney, 2 Atk., 380; Wilkin v. Wilkin, 1 Johns. Chan., 111. And, in a writ of partition, all the co-tenants must be named, and their shares stated, so that the jury may determine the proportion to which each one is entitled. Cook v. Allen, 2 Mass., 462. To obviate these difficulties, provision was early made in Massachusetts for a partition upon petition of one or more of the co-tenants, whether all the other co-tenants were known or not. Laws of Mass., 1783, 1784. Our present statute is similar, though it affirms the right to a writ of partition at common law.

This process is designed simply to establish the legal right of possession in severalty. No writ of possession issues, as in a real action. If the party whose right is thus established cannot otherwise obtain possession, he must resort to his action at law for that purpose. Baylies v. Bussey, 5 Greenl., 153.

All questions concerning the title of the parties, and the nature and proportions of their interests, are to be determined by the jury; and their verdict is the basis of the interlocutory judgment, which must therefore conform to it. Upon all these matters the interlocutory judgment is conclusive. And this judgment relates to the petition, and is limited and explained by it, except as it is modified by the pleadings and the verdict.

Nothing can be embraced in the petition, or the judgment, but real estate. When a petitioner claims and obtains judgment for a fractional part of certain premises, described by boundaries, unless specifically limited by exceptions or reservations, he is entitled to such a proportion of all the real estate within the boundaries named. This right cannot be diminished, unless the judgment is vacated, or reversed.

After the judgment is entered, commissioners are appointed by the Court to make the partition among the parties, in conformity with it. They act under a warrant, which, following the terms of the judgment, should describe-the estate to be divided, and the proportions to be assigned to each of the parties, or to them collectively, if that is the prayer of the petition. If the petition does not particularly describe the estate, so that the commissioners can determine its locality and boundaries, it will be dismissed upon demurrer. Miller v. Miller, 16 Pick., 215. But, if judgment is entered on such a petition, the Court may order a survey under the direction of the commissioners. Mitchell v. Starbuck, 10 Mass., 5.

The commissioners have no judicial power, like referees, to determine any questions between the parties, relating to their respective proportions, titles, or interests. All these questions are for the jury, and must be settled before the interlocutory judgment, in order to determine what that judgment shall be. The statute gives the commissioners no power to decide them. Ham v. Ham, 39 Maine, 216. " When the interlocutory judgment is entered,” says Merrick, J., in Brown v. Bulkeley, 11 Cush., 168, "it is a conclusive determination of the rights of all the parties to the proceedings; and no question any longer remains open concerning * their ownership, or' title, or their individual shares and interests. The commissioners have no other duty to perform, or authority to act, than to divide the estate according to the directions contained in the warrant.”

Nor is this case, or that of Ham v. Ham, in conflict with the case of Parsons v. Copeland, 38 Maine, 537. In that case, which was not presented on exceptions, but by a report, the parties agreed to submit it to the Court, as to a jury. It was competent for the parties thus to present the case. One of the questions in that case was, whether certain buildings were erected by one of the co-tenants alone, and after the petition was filed. This was a question for the jury. It should have been presented by proper pleadings, before the interlocutory judgment. Not having been so presented, the parties submitted it to the Court by agreement. The other question in that case, — whether certain buildings were personal property, or real estate, — was a question for the commissioners to decide. An interlocutory judgment, in which there are no exceptions, covers all the real estate within the specified boundaries. The commissioners are to find the property, and determine where and what it is. This is implied in fjieir warrant, and is indispensable to their execution of it. They must determine the location and boundaries; and, if the question arises, they must determine what the whole estate is, by distinguishing personal property from real estate. Rice v. Freeland, 12 Cush., 170. These questions are entirely different from those relating to the title, interests, and proportions of individual parties. They are not questions for the jury, in any event, unless they arise in other cases, between other parties. If the commissioners err in deciding these questions, the Court may refuse to accept their report, and recommit the case to them.

The statute of 1855 changed the relative rights of tenants in common, ill two important particulars, in all cases where one has occupied any part of the premises in severalty, and has made any improvements thereon.

If he has done this without " the consent” of his co-tenants, he cannot claim to have his share so set out as to embrace such improvements. He may be compelled to take some other portion of the estate. But he is entitled to have the improvements made by him " considered,” and the assignment made " in conformity therewith.” This language, though somewhat indefinite, is without meaning, unless it means that he shall have the entire benefit of the improvements made by him. If not assigned to him specifically, he shall have their value, over and above his share of the common property.

But, if he has had exclusive possession of any part of the premises " by the mutual consent” of the co-tenants, and has made improvements thereon, he is entitled to have such part assigned to him, unless, exclusive of the improvements, it exceeds his share.

Such we believe to be the meaning of the statute of 1855 ; and, though condensed in the revision of 1857, taking the former as explanatory of the latter, which is a proper rule of construction, the meaning is obviously the same.

But the questions arising under this statute, as they refer entirely to the individual interests and proportions of the parties, must be determined by the' jury before the interlocutory judgment. Ham v. Ham, 39 Maine, 216. If a dwelling-house is to be excepted from the partition, and the land upon which it stands is to be assigned to one of the parties who built it; or, if a dwelling-house built by one of the parties is -not excepted, but the one who built it is entitled to the value of it, more than his share in the common property, exclusive of it; these facts should be determined by the jury, and be incorporated into the interlocutory judgment, that the proper directions may be given therefor in the warrant.

These principles have been stated at some length, as they are important for the proper determination of this class of cases. In the case at bar, the counsel, and, to some extent, the Court, seem to have mistaken the proper course of proceeding. Matters were submitted to commissioners, under the instructions of the Court, which they had no authority to decide. No exceptions were taken by the respondent at that term. But when the commissioners made their report, at a subsequent term, the objection was made. It was too late to make it at either term. It is true the report of the commissioners shows that they heard the parties, and decided between them, upon a question over which they had no jurisdiction. But it is too late to raise that question in this case, unless a new trial should be granted. The petitioner has recovered a judgment for one half of the entire property described in the petition. This the commissioners have assigned to him. The partition, being in conformity with the judgment, is not invalidated or otherwise affected by the unauthorized proceedings of the commissioners. It was proper for the Court to disregard this portion of their report. Brown v. Bulkeley, 11 Cush., 168. The ruling of the presiding Judge, "that the objections to the report, if sustained by proof, would not invalidate it,” was correct.

Bxceplions overruled.

Tenney, C. J., Rice, May, Goodenow and Kent, JJ., concurred.  