East Shore Co. v. Richmond Belt Railway

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 176 The action was for partition of lands. The Richmond Belt Railway had obtained from the East Shore Company, before the action was begun, a deed purporting to convey to it, in severalty and entirety, certain strips or parcels of the common land. The deed stated that the strips were conveyed "as and for a right of way" for a railroad "to have and to hold all and singular the said premises, right and privilege unto" the said grantee "so long as the same shall be used for railroad or terminal purposes." During the progress of the suit, and before the decision in the court below, some of the common owners made deeds purporting to convey to third persons, in severalty, the whole title to other specific parcels of the common land. After the evidence was closed and the cause was submitted the court, on motion of plaintiff, opened the case and allowed proof to be made of these conveyances. This was done over the objection of the appellant.

The court found as a fact that the land was susceptible of division between the common owners without material injury to their interests. Thereupon it made an interlocutory judgment of partition, declaring the interests of the respective *Page 177 tenants in common, setting forth, also, the said several conveyances of entire parcels thereof to third persons and describing said parcels, and appointing three persons as referees to make the partition. With respect to the specific parcels conveyed in whole title, the judgment directed that each such parcel be charged against and deducted from the share of the common owner who made the conveyance, that such common owner should be allotted only the interest remaining in him after such deduction, and that each person so receiving a conveyance of a parcel in whole title should have such parcel set apart to him, provided the same could be done without material injury to the rights and interests of other tenants in common who did not join in such conveyance. From this interlocutory judgment the defendant, J. Goodwin Thompson, appeals.

Certain principles have been established in this state concerning the rights of the parties where one tenant in common has conveyed, in whole title, a part of the common land, which principles control the decision in this case. They are well stated in the following extracts from our decisions: "A suit in partition under our code is, in its nature and essence, equitable, and the court, in its decree, proceeding to do what is 'equitable, just, and proper,' will not only allot to a cotenant that part of the common land upon which he has valuable improvements, but will also set apart a specific tract to the share of a cotenant who has undertaken to convey the title in fee to such tract in severalty, so that the grantee may have that which is justly his, when such disposition of the land can be made 'without material injury to the rights and interests of the other cotenants!' " (Emeric v. Alvarado,90 Cal. 444, 457, [27 P. 356].) Substantially the same doctrine is stated in each of the two decisions in Gates v. Salmon, the first reported in 35 Cal. 576, [95 Am. Dec. 139], and the other in 46 Cal. 361, and in section 764 of the Code of Civil Procedure. Another rule is stated in the first case, at page 588, where the court says, with respect to a conveyance of such special tract: "The grantor, before his conveyance of the special tract, held his undivided interest therein subject to the contingency of the loss of it, if on the partition of the general tract the special tract should be allotted to one of his cotenants. The grantee, then, acquires all the interest of his grantor in the special tract, and that interest is a tenancy in *Page 178 the special tract in common with the cotenants of his grantor, but his conveyance did not sever the special tract from the general tract, so far as the cotenants are concerned, and the general tract is, therefore, liable to a partition so far as the cotenants of the grantor are concerned, as it would be had the conveyance of the special tract not been made." In pursuance of this doctrine it was held in Pfeiffer v. Regentsof University, 74 Cal. 156, [15 P. 622], that one tenant in common could not by his conveyance create an easement in the common land which would be good against any of the tenants other than himself.