Reas v. Clemence

SHAW, J.

This is an appeal from an

ex parte

order appointing a receiver upon the application of the plaintiff, and based solely upon the allegations of the complaint. The appellants claim that the facts stated do not justify the appointment of a receiver.

The complaint stated a cause of action for partition of a tract of land. It is alleged that the plaintiff and defendants own, as tenants in common, the land, together with the well, pumping plant, and pipe-line used in connection therewith, situated upon the premises, and that they are now in possession thereof. The order appointing the receiver authorized him to take possession of the premises, operate the pumping plant, distribute the water obtained therefrom, and incur such indebtedness as should be necessary for said purposes. According to the allegations of the complaint there are 168 persons interested as tenants in common in the land, each owning a small interest therein. The area of the land is not stated. The facts upon which the order appointing the receiver is based are that the plaintiff and many of the defendants are dependent upon the water from the aforesaid pumping plant for irrigation and domestic use, that the plaintiff has ten acres in vegetables and fruit which must be irrigated to keep them alive, and that his only source of water is from said well and pumping plant, that the owners of the tract cannot agree among themselves for the management and operation of the pumping plant, that it had not been operated during the ten days preceding the filing of the complaint, during which time the plaintiff and many other parties had been wholly deprived of the water for domestic use and irrigation, whereby their crops have been in

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jured, and that they will continue to be injured and, unless water is supplied soon, will be wholly lost.

We do not think the facts stated justify the extraordinary remedy of the appointment of a receiver. It appears that the parties are in possession of the property, including the pumping plant, and it does not appear that any one of the tenants in common is in exclusive possession of the pumping plant, or is hindering or preventing any other, tenant in common from operating the same. There is nothing to indicate that the plaintiff is not abundantly able to operate the pumping plant for his own use, or that it is so situated that he cannot do so and thereby obtain whatever water he desires. It is true that a receiver may be appointed in a partition suit whenever facts appear which justify such appointment.