standing easement which was not subject to partition. What could be done in such circumstances except that which was done-make the hills an appurtenant of each several property, and secure to each tenant participation in the products, in the manner their convenience and experience had suggested. Partition thus made of the usufruct is not without analogies and direct authority in law. We have said that partition at common law was confined to coparceners, but inasmuch as the statute of 31 Henry VIII gave partition to tenants in common in "like manner and form as coparceners by the common law of this realm have been and are compelled to do," principles drawn from the law of partition among parceners are applicable to partition among tenants in common. Especially is this the case in Pennsylvania, where our statutes of inheritance and distribution have substituted tenancy in common for the English coparcenary. What, then, was the "manner and form" in which parceners had partition of the profits of impartible estates?

In speaking of indivisible inheritances, Lord Coke asks, what shall become of them? He first answers that the eldest shall have them, and others shall have an allowance in value. in some other of the inheritance.

But what if the common ancestor left no other inheritance to give anything in allowance? It is answered that one coparcener shall have the inheritance for a time and the other for a like time. Or, in case of a piscary, one may have one fish and the other the second one, or the one may have the first draught and the second the second draught. If it be a park, one may have the first beast, and the second the second. If a mill, one to have it for a time, and the other for a like time, or the one, one toll-dish, and the other the second. And this, he adds, appears to be the ancient law: Thomas' Coke Litt. Vol. 1, p. 537. And says Littleton: It is to be understood that partition may be made in divers manners. Modus et conventio vincunt legem. Pacto aliquid licitum est, quod sine pacto non admittur.

In Allnatt on Partition, 3-5 Law Library, it is laid down that there may be partition in effect, and so as to give to each parcener a species of enjoyment in severalty without any

division of the land.

In Salisbury v. Phillips, 1 Salkeld, 43, Lord Holt said: When the thing and its profits are the same, partition of the profits is partition of the thing. See also Warner v. Baynes, Ambler 589; 6 Monroe, 179.

In the case of Conant v. Smith, 1 Aiken, 67, in which an ore bed similar to this was attempted to be brought into partition, the Supreme Court of Vermont denied both partition and a sale on the ground that neither could be had without injustice to the parties, and suggested that a court of equity had the power to regulate the enjoyment of the property. between the owners, by restricting them to the proportion. of their respective interests, by compelling accounts between them, and by appointing a common receiver for all parties.

That our courts possess the equity powers here referred to can not be doubted, since the act of assembly of 25th April, 1850, Purdon, the 24th and 25th sections of which confer upon the courts of common pleas equity jurisdiction to compel accounts between tenants in common of "coal or iron ore mines, or minerals."

The partition thus made in 1787, by the agreement of the parties in interest, with the sanction of the court having jurisdiction, and in accordance with law, is binding on the successors in the title, not only because of the judgment of a court in partition, under which they claim, but because the covenants of 1787 were real, and ran with the land, though the words "heirs and assigns were not used. See Packenham's Case, cited in Spencer's Case, 3 Coke, 16, and Mr. Hare's note in 1 Smith's Leading Cases, p. 108; Thomas' Coke Litt. Vol. 2, p. 247-49. Even if the covenant did not so run with the land as to give a right of action to an heir or alience, it would serve to rebut this action, for the law is, in regard to the implied warranty which annexes itself to exchange and partition, that though it does not extend to assignees, yet the assignee shall rebut. See Note to Coke Litt. p. 249. Much more may an express covenant be set up by a privy in estate against the very action which it was the object of the covenant to exclude, though no words of perpetuity were used.

We have thus demonstrated satisfactorily, at least to our own minds, that the agreement of 30th August, 1787, and the

judicial proceedings had pursuant to it, constitute an insuperable bar to this action. It follows that the court below were in error in rendering judgment for the plaintiffs.

Against these conclusions it is urged that the partition of 1787 left the mine hills a tenancy in common, and that partition is an inseparable incident of the estate of tenants in common, and therefore these plaintiffs should not be estopped.

But it must be apparent that this action is nothing more than an attempt to have a second partition of that which has already been the subject of partition.

A large estate held in common, and involving various and complicated interests, was brought into severalty by reason of the exemption of the hills from the ordinary course of partition. Partition indeed was virtually made of them, and yet the plaintiffs, not proposing to re-divide the whole estate, would destroy the foundation on which the former partition rests, by subjecting the mine hills to an actual division or sale. This can not be permitted. Estates in common are undoubtedly meliorated by partition into severalty, and the interests of society require the statutes of partition to be liberally construed.

We have no doubt that any mineral lands held in common, whatever the peculiarities of their structure, are subject to partition under our acts of assembly; for, if upon inquest it is found they can not be divided without prejudice to or spoiling the whole, they may be ordered to one or more of the tenants at a valuation, or be sold and the price divided. But neither the letter nor the policy of our statutes demand partition of an estate in circumstances such as attend these hills of ore. The incidental right, which the plaintiffs claim is gone, was surrendered by those under whom they claim, and they are enjoying, in the severalty of their estates, the consideration of that surrender."

There are many other matters suggested in the able and elaborate argument of this cause which we do not take space to discuss. Nor do we notice in detail the errors assigned to the opinion of the court below, because the capital error into which the court fell was in sustaining the plaintiffs' action.

We put our judgment on the covenant of the persons under

whom the parties litigant hold, and the judicial proceedings. had thereon, and we refuse any further partition of these mine hills, because as yet that covenant is operative and the hills must "remain together and undivided as a tenancy in

common."

Judgment reversed.

CONANT ET AL. V. SMITH ET AL.

(1 Aiken, 67. Supreme Court of Vermont, 1826.)

'Partition of ore bed refused. The court will not order partition of real estate held in common, where the value of the several parts can not be ascertained, as in the case of an ore bed.

Sale, when not decreed. Nor will they in such case order a sale thereof or an assignment to one of the parties, though authorized by the statute, if equal or better justice can be obtained in another way; the proper remedy of the party aggrieved is by application to the court of chancery.

Costs in partition under the statute can not be recovered where there is no question as to the title of the respective parties.

This was a case for partition, brought under the act entitled "An act for the partition of real estate, in certain cases."

The petitioners set forth in their petition, that they were the owners, in fee simple, of fifteenth sixteenths, and the petitionees of one sixteenth, of a certain tract of land in Brandon containing an ore bed, as tenants in common, and that they were desirous of holding and enjoying their portion in severalty.

They further represented that the said tract could not be divided without great inconvenience to the parties interested, (the chief value thereof consisting in the ore therein,) and therefore prayed the court to order partition of said tract; or, that the whole of said tract might be assigned to them, they paying such sum or sums of money, at such time or times and in such manner, to the petitionees, as the commissioners to

'Lenfers v. Henke, 5 M. R. 68.

be appointed by the court should judge just and reasonable, agreeably to the statute in such case made and provided.

From the evidence it appeared that the tract in question contained about thirty-six acres; that the ore, so far as discovered, was confined to about two acres, and the residue of the land worth but little; that the ore is of the description called bog-ore, and grows again after being dug out; and that the bed has been discovered fifteen or sixteen years, and wrought, in places, from two to fifty or sixty feet deep. That the etitionces' furnace is much nearer to the ore bed than the petitioner's furnace; that for some time past the petitionees had dug much more ore than the petitioners, in proportion to their respective shares, and that considerable difficulty had occurred between the parties in consequence of their respective diggings. The title of the parties was admitted to be as set forth in the petition.

CHAS. K. WILLIAMS, for the petitioners.

ROBERT B. BATES, for the petitionees.

The opinion of the court was delivered by ROYCE, J.

This is a petition for partition of a small piece of land, the value of which consists chiefly in an ore bed, which for several years has been known to exist in a part of the tract.

A suggestion is made that it may be difficult to divide the bed to advantage; and the scope and design of the petition seems rather to obtain an assignment of the defendants' share, than an actual division of the estate. The situation and quality of this property is such as to justify the court in declining to order a partition or sale. The exact extent of the ore bed is probably not yet known; and much less is the comparative depth and richness of its several parts. It would therefore be very hazardous to attempt a final division of the land itself; and to order a division in point of time, by directing the parties to improve the whole in succession, according to their interests, would operate to destroy all benefit to the owners of a small share. And then, to direct a sale of the defendants' share without their consent, though authorized by the statute,