the English authorities cited would seem to apply to a partnership in a claim on the public land,' but some of the courts of the Western mining States have held that the fact that a mining claim was worked by a partnership, would not prevent partition, where no settlement or accounting of the partnership was necessary, but the claim could be partitioned as other real estate. However, other courts hold that no partition would be required, in any case, as to such property, either as to partners or cotenants." § 599. Same- - Rule in Federal courts. The view expressed in the preceding section as to a lack of jurisdiction, in any case, to award partition of a government mining claim, is the rule that obtains in the Federal courts, before patent granted, as a mere possessory title will not give such courts jurisdiction. However, as most of the Western States have provided, by statute, for partition of such claims, between joint owners, and Federal courts can administer any equitable title or right, given by a State 1 Godfrey v. White, 11 M. M. R. 562, where it is held not an incident to an accounting by partners. 2 Hughes v. Devlin, 12 M. M. R. 242; Dall v. Confidence Co., 11 M. M. R. 214; Strettle v. Ballon, 11 Id. 220. 3 Ante, idem. 4 Lenfers v. Henke, 5 M. M. R. 68; Conant v. Smith, 11 M. M. R. 199; Godfrey v. White, supra. & Boston Co. v. Condit, 14 M. M. R. 301; Conant v. Smith, supra. "When a mining claim upon the public lands is claimed and possessed by several as joint tenants, tenants in common, or as coparceners, or even as partners, such several interests or estates are in the nature of an estate of inheritance, and liable to be partitioned between the several claimants the same as other real property." Hughes v. Devlin, 23 Cal. 501; B. & W. L. C. 311; M. M. D. 255. No parol partition results from an agreement to divide a mining claim, upon the public land, although joint possession is retained; the patentee is trustee for the co-owners and they have but an equity to enforce. Mullins v. Butte Co. (Mont.), 65 Pac. Rep. 1004. Strettle v. Ballon, 3 McCrary, 46. statute, it is difficult to see why jurisdiction of Federal courts should be denied, in such cases, and a resort to State courts the only remedy for the enforcement of a statutory right, where the other essentials to Federal jurisdiction exist.1 2 § 600. Manner of decreeing. When a partition of mines is ordered, if it is possible to divide the property, in kind, between the owners, this will be done, where it will best subserve the interests of the several parties. If impossible, or impracticable to decree a partition in kind, a sale of the property and division of the proceeds will be directed. Sometimes it is found necessary to order a special partition, directing a division of the profits, or the alternate enjoyment of the common property, as the circumstances of the case may require and the different interests be best subserved, and if the parties are unable to agree upon a plan of working a receiver will sometimes be appointed to operate the mine and divide the profits, pending the final orders and disposition of the property. 5 § 601. Of water right impracticable. - In the case of water rights the same objection can be urged to partition 1 Aspen Mining & Smelting Co. v. Rucker, 28 Fed. Rep. 220. 2 Crawshay v. Maule, 1 Swanst. 518; Collingwood v. Jenison, Sel. 1032. s Wild v. Milne, 26 Beav. 504. 4 Adam v. Iron Co. (Mass.), 7 Cush. 361. "Partition of a mine cannot be made by metes and bounds. They are to be otherwise parted by alternate enjoyment, or division of profits, as the circumstances may require." Adam v. Briggs' Iron Co., 7 Cush. 361; M. M. D. 255. 5 Lees v. Jones, 3 Jur. (N. 8.) 954. 6 MacSwinney Mines, etc., p. 111; Porter v. Lopes, 7 Ch. D. 358; Ex parte Cambrian Co., 14 Ch. D. 653; Roberts v. Eberhardt, Kay, 148-159. Where actual partition can be made of a mine it will be made in preference to a sale. Royston v. Miller, 76 Fed. Rep. 50. Where mineral deposit is on one end of tract and undetermined in value, sale will be ordered. Wilson v. Regle, 95 Tenn. 290; 32 S. W. Rep. 386. Where mineral and surface are separately allotted, owelty may be ordered to equalize the estates. Ames v. Ames, 160 Ill. 599; 43 N. E. Rep. 592. that exists in the case of an ore bed, because of the nature of the property and the impossibility of ascertaining the value of the parts and on account of the impracticability of the remedy, partition of water rights would, generally, be refused; 1 a sale and distribution, instead, would, ordinarily, be resorted to. But in a suit for partition of a water ditch, a mortgage upon an undivided interest in the ditch may be adjusted and an account of the water rents taken by the court." Like any other legal § 602. Right to, may be waived. right, even when the same is clearly recognized, partition may be waived by act of the party entitled thereto, and the right thus lost. Although a beneficial incident to a tenancy in common, partition may be waived by agreement of the parties in interest.5 And an agreement barring partition is held to establish a permanent tenancy in common; the agreement runs with the land, and partition would be refused. But where the terms of the agreement are susceptible of such a construction, it will not be held to create a tenancy in common and bar partition forever, but only so long as the objects and purposes of the agreement are being carried out, and no longer." 1 McGillivray v. Evans, 11 M. M. R. 209. 2 Ante, idem. "It is utterly impracticable for a court to make a mechanical division of water running in a ditch, and used by tenants in common for mining purposes, in such a manner as to permanently do justice between the parties." McGillivray v. Evans, 27 Cal. 92; M. M. D. 255. 3 Bradley v. Harkness, 11 M. M. R. 389. "A mortgage upon an undivided interest in a ditch may be adjusted in a suit for partition of the ditch, and an account of water rates taken." Obiter: Bradley v. Hark ness, 26 Cal. 69; M. M. D. 255. * Blewett v. Coleman, 40 Pa. 45; 11 M. M. R. 160. * Coleman v. Coleman, 1 Pearson, 470; 11 M. M. R. 183. 6 Coleman's Appeal, 62 Pa. 262; 14 M. M. R. 221. Coleman v. Coleman, supra. CHAPTER XII. ACCOUNTING. SECTION 603. Will lie against co-owners. 604. Between partners. 605. Against trustee. 606. Between lessor and lessee. 607. Against assignee of lessee. 608. Licensor against licensee. 609. Incident to injunction and partition. 611. Restricted to period of limitation. § 603. Will lie against co-owner. Since no co-owner of a mine or quarry is entitled to take more than his share of the mineral produced from the common property, an action for an account can be maintained against him for any appropriation in excess of his individual interest, by his co-owner.1 Where the working is entered into as a joint undertaking of the co-owners, a failure to account would render the wrong-doer liable to his cotenants for their share of the profits in the working; but if a co-owner 1 Job v. Patton, 20 Eq. 84; Jacobs v. Seward, L. R. 5 H. L. 464-478; Denys v. Shuckburgh, 4 Y. & C. Eq. Ex. 42; Re Smith, 10 Ch. 85; MacSwinney Mines, etc., p. 111.. 2 Scott v. Nesbitt, 14 Ves. 445; Sayers v. Whitfield, 1 Knapp P. C. 149; Job v. Patton, supra. "For case where conversion of ore by one of several tenants in common of a mine is apparently treated as a tort, and as such not subject to consideration in a bill praying for a general accounting." Hall v. Fisher, 20 Barb. 442; s. c. 9 Id. 148; 1 Barb. Ch. 53; 3 Id. 639; M. M. D. 4. "In an action by a tenant in common of mining lands for an account of the rents and profits received by his cotenant, testimony as to the advantages which would result from mining and draining the land by machinery is not within the issues." Gregg v. Mining Co. (K. C. Ct. App., Dec. 1902), 70 S. W. Rep. 920. himself take all the risks of the hazardous undertaking of developing a mine or quarry on the common property, since he could not, in such case, call upon his cotenants for any part of the losses or expenses,1 they would not, ordinarily, be entitled to any part of the profits realized, but he would only be liable for such rental or royalty as a stranger would be chargeable with under the circumstances.3 § 604. Between partners. Every partner is entitled to an account, in case of an appropriation, by any member of the firm, of more than his individual share of the firm property, produce or profits. And in a mining partnership, unless a commercial partnership, an accounting may be had, without a dissolution.5 The partnership relation 1 Kay v. Johnston, 21 Beav. 536; Fereday v. Wightwick, 1 R. & N. Y. 45-50. 2 Henderson v. Eason, 17 Q. B. 701, 721. But see Goller v. Felt, 30 Cal. 481, where plaintiff was held entitled to his share, less expenses of removal only. › MacSwinney, p. 112, 84, 97; McCord v. Mining Co., 64 Cal. 134. "Where the common property (salt works) is rented out by one tenant in common, he is accountable to his cotenants for their share of the rents he has received. And where he occupies and uses the whole property himself, he is liable to his cotenants for a reasonable rent for it in the condition it was in when he took possession." Early v. Friend, 16 Gratt. (Va.) 21. "When a question of title is necessarily involved upon a bill for an accounting between tenants in common, it is competent for the court to decide it." Wilhelm's Appeal, 79 Pa. St. 141; Grubb's Appeal, 79 Pa. St. 141; M. M. D. 4. The general grounds of equity's jurisdiction in an accounting are, the necessity for a discovery; the complicated character of the accounts, or the existence of a fiduciary relation. 1 Enc. Pl. & Pr. 93. A cotenant cannot avoid an accounting on the theory that the portion of the land that furnished the mineral taken was no more than his just share. Cecil v. Clark (W. Va. 1900), 38 S. E. Rep. 11. 4 MacSwinney on Mines, p. 113; Bentley v. Bates, 4 Y. & C. Eq Ex. 182; Roberts v. Eberhardt, Kay, 148; Clegg v. Clegg, 3 Giff. 322. Bentley v. Bates, supra. But see, Nisbet v. Nash, 11 M. M. R. 531. |