tities; three fifths of said balance of water, after flowing through three of said openings, falls into a ditch of the defendants, and flows off to them, it being optional with them to keep it separated into three parts or to mingle with it. The other two fifths of said balance of water flows through two of said apertures and falls into a ditch of the plaintiff, and thus flows to him."

The other commissioner dissented, and made a counter report, in which he maintains that the water is not properly divided; that the defendants do not get their full amount of the first flow by the division made; that it is impracticable to make a just and permanent partition of the waters; and that any such attempted division would prove greatly njurious to the interests of the parties. The court adopted and confirmed the majority report, and made a final decree in accordance therewith, in which it was "ordered and adjudged that said report stand, and the same is the judgment of the court in partition to be of perpetual effect between the plaintiff and said defendants," etc.; to all of which proceedings defendants objected and excepted, and they now appeal from the judg

ment.

Appellants allege that the court erred in assuming to make a partition of the water in the mode provided by the judg ment. It would, to our minds, be utterly impracticable for the court to make a mechanical division of the water running in a ditch owned by tenants in common, and used for mining purposes, in such a manner as to permanently do justice between the parties. The object of a partition of the property itself is to enable each party to obtain the title to, and the use for all future time in severalty, of some definite portion of the property owned in common, and thereby permanently end all disputes and remove all obstructions to its free enjoyment. In the case of two mills upon a stream comparatively constant in its flow, which are permanently located at a permanent dam upon its banks, and to which a right to the use of the water of the stream for propelling them is appurtenant, and where permanent gates and gauges may be fixed, it is possible, perhaps, to arrange a division of the water in such a manner as to approximately do justice between the parties. The chancellor so thought in Smith v. Smith,

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10 Paige, 470. But in the case of water conducted in ditches for mining purposes, the circumstances are entirely different. The use of the water is rarely had for any considerable length of time at the same point. When the claim of a miner is worked out he must remove to another. There is occasion continually to change the point at which he uses the water and at which he takes it from his ditch. Besides, when a given quantity is to be taken out of the first flow of the stream, without pressure, where the amount of water in the ditch is subject to great fluctuation, gates must be arranged so as to increase or diminish the aperture through which the water is discharged, according as the amount of water increases or diminishes, as was actually done in this instance. But the court can not say at what point the gate shall stand to-morrow, or next day, or the next-nor can it take upon itself the appointment of an officer to stand at the gate and gauge it in accordance with the ever-changing current of the stream. An adjustment of the "apparatus which would make a perfectly fair division to-day, might produce an entirely different result to-morrow. This partition is to be "of perpetual effect," and to be "of perpetual effect" it would be necessary to take the water out at that particular point, through the box placed there by order of the court, by means of which the partition is made, whether the parties can any longer make it available for their mining purposes at that point or not. It is manifest that partitions, made upon this theory, can not, ordinarily at least, be permanent without working great injury to the parties. In the language of appellants' counsel, "The water to be valuable must follow the mines, and be used at those points where the mining claims are situated, which involves the necessity of shifting the ditch line from place to place, and the construction of extensions and lateral ditches, as new occasions require." The ditch and the right to take the water from the creek above in this case, are still held in common, and the expenses of keeping the ditch in repair must still be a common charge. There is no partition, except of the water. It is manifest that the court has assumed a duty that is utterly impracticable for it to perform. The court may determine the rights of the parties, and ascertain and adjudge the amount of interest which each

party holds; but it can not assume to make a mechanical division of a material which, from its nature and the nature of the uses to which it is applied, is incapable of any permanent division that shall do justice between the parties. The only partition that the court can make, which will definitely and permanently end the dispute of the parties and do justice between them, is to order a sale and distribute the proceeds.

In this case the court did not attempt to make a complete partition. It only divided the water between the plaintiff, on one side, and the three defendants, as one party, on the other. The record shows that the three defendants owned the twenty inches jointly, and two of them three fifths of the remainder. The defendants demanded that the twenty inches should also be partitioned among them; but it was not done, and it is obvious that it would be utterly impracticable for the court to adjust such complicated interest by a single mechanical division by means of boxes, gates and gauges, to perma nently remain. An attempt to do it would be, not to end, but to encourage and multiply litigation to an unlimited extent.

The necessary facts to enable the court to make a proper distribution of the proceeds, on a sale, do not appear in the findings, and a new trial will be necessary.

Judgment reversed, and a new trial ordered in pursuance of the principles indicated in this opinion.

By the Court, SAWYER, J., on petition for rehearing.

The correctness of our decision is not questioned in the petition for rehearing. A rehearing seems to have been asked on the supposition that the district court was directed to enter a judgment ordering a sale of the property and division of the proceeds. But such is not the order. The order is: "Judgment reversed, and a new trial ordered in pursuance of the rinciples indicated in this opinion." When the case goes back a new trial will be had. The plaintiff prays for a partition. If a partition is to be had, it can only be made by a sale and a division of the proceeds. Plaintiff now urges that upon the pleadings a partition would not necessarily follow; that other relief may be had which will accomplish the object of the parties. These questions do not arise upon this appeal. Upon a new trial the court will

doubtless afford such relief as it judges the parties may be entitled to upon the pleadings and facts established on the trial. The defendants do not appear to demand affirmative relief; they simply submit to a partition, but insist that they are entitled to a larger share than is accorded to them in the complaint, and that, if a partition is decreed, it should be made according to the interests as claimed in the answer. If the pleadings do not present the questions which the parties desire to litigate and have determined, in view of the fact that a mechanical division of the water can not be had, perhaps the suit might be dismissed, and another commenced upon another theory, or parties might arrange to amend. At all events, when the cause goes back for a new trial, the parties can pursue such course as they may deem their interests to require. We do not see that a different judgment could be entered upon this record.

A rehearing is denied; but to guard against misapprehension, the order for judgment is modified so as to read: Judgment reversed and new trial ordered.

DALL, Respondent, v. THE CONFIDENCE SILVER MINING Co., Appellant.

(3 Nevada, 531. Supreme Court, 1867.)

Accounting, as an incident. When a proceeding for partition of realty is had in a court of equity, the court will not only proceed to divide the land but will, in a proper case, direct an accounting, and do equity in the case by making parties account for rents, etc.

2 Partition a matter of right. As the law deems it against good morals to compel joint owners to hold a thing in common, a decree of partition may always be insisted on as an absolute right. It is not necessarily founded upon any misconduct of the co-tenants or part owners, but is in obedience to the call of the parties who have a right to the partition. Partition first-Sale as an alternative. In a suit for partition a sale of the property should never be decreed except when a partition would result in great prejudice to the respective owners, and under the Nevada statutes if any one of the tenants in common files an affidavit that a sale for cash would be injurious to him, it is the duty of the court to appoint a commissioner to divide the property, and it is error to decree a sale.

1 Bradley v. Harkness, 11 M. R. ; Hoffman v. Ross, 25 Mich. 175; Packard v. King, 3 Colo. 211.

Morrill v. Morrill, 5 N. H. 136.

Practics. A sworn answer setting up the same matter as required by statute in the affidavit, is equivalent to it.

No compensation for incidentally enhancing value. The defendant in a suit between tenants in common for the partition of twenty-five feet of a mining claim, will not be allowed compensation for developments done upon an adjoining claim which have incidentally enhanced the value of the premises of which partition is sought.

Appeal from the District Court of the First Judicial District, Storey County, Hon. RICHARD RISING presiding.

HILLYER & WHITMAN, for appellant.

WOOD & HILLYER, for respondent.

By the Court, LEWIS, J.

This is a proceeding under the statute concerning the partition of real property, the plaintiff seeking by his bill a sale of a mining claim, consisting of twenty-five feet of ground in Gold Hill, owned by himself and the defendant as tenants in common. After the usual allegations in this character of proceeding the bill concludes as follows: "And plaintiff further avers that he is desirous that a partition of said premises should be had, and the interest held by plaintiff and defendant be divided between them according to their respective rights; but plaintiff avers that said premises are so situated that a partition thereof can not be made without great prejudice to the owners, to wit, to plaintiff and defendant, and that for the protection of the rights of the plaintiff and defendant it will be necessary that said premises be sold." The defendant, in its answer, meets this allegation of the complaint in the following manner: "No comes the defendant and answering unto plaintiff's complaint denies that the premises described in said complaint are so situated that a partition thereof can not be made without great prejudice to the plaintiff and defendant, as by the plaintiff alleged. It further denies that for the protection of their interests it will be necessary that the said premises be sold, but avers that for all purposes of mining with convenience, twelve and one half feet of ground can be worked with as much facility as twenty-five feet; that the de