Bradley v. Harkness

By the Court, Sanderson, C. J. The demurrer to the complaint ought to have been sustained. It proceeds upon two legal theories which are wholly inconsistent. It first alleges a copartnership in general terms in the ditch, which is followed by allegations respecting the management thereof and its rents and profits. It then drops the copartnership theory and adopts that of a tenancy in common in real estate, and avers that the ditch cannot be divided or partitioned without serious injury, and asks that an account of the rents and profits may be taken and the ditch sold, etc. The pleader seems to have been unable to determine which was the true theory, and in his doubt and uncertainty, concluded to partially incorporate both in his complaint, being satisfied that one or the other must suit the facts to be developed by. the evidence. In addition, and apparently for the purpose of completing his salmagundi, the pleader throws in a note and mortgage of the defendant upon his interest in the ditch, and asks that it may be foreclosed and defendant’s equity of redemption cut off by an absolute sale, as in partition, of the ditch. This style of pleading, if allowed, would lead to most pernicious results. All- correspondence between matters of allegation and matters of proof would be dispensed with and the judgment .or decree allowed to proceed upon a theory of its own and not secundum allegata, but regardless of the pleadings.

We cannot, if so disposed, discard any part of the complaint as surplusage, for the complaint does not state facts sufficient to constitute a cause of action under either theory. In the absence of any special facts constituting them something else, the proprietors of ditches in the mining districts are tenants in common of real estate, and their rights in the ditch and in the [77]profits arising from the sales of water, although in the latter respect analagous to those of copartners, are governed by the law of tenancy in common. The ditch is real estate, and each proprietor buys in, or sells out, or incumbers his interest at pleasure, regardless of the knowledge, or consent, or Wishes of his coproprietors, and without affecting the legal relation existing between them beyond the going out of one and the coming in of another. This cannot be done where a copartnership exists. One cannot buy in or sell out of a partnership at pleasure. Such an act would of itself work a dissolution of the partnership and necessitate its final settlement and closing out. A tenancy in common results from a rule of law by which it is also controlled and governed. A partnership, on the contrary, is the result of agreement between parties, which also supplies the rules for its government. The former relation is undisturbed by a change of tenants, but the latter admits of no change as to its members; and where a change takes place by the consent and agreement of all the parties concerned, the old firm is thereby dissolved and a new one created. . Thus the incidents annexed to each have a different origin and are diverse. Also, the proceedings for a dissolution of these relations are different and are grounded upon entirely different facts. As to the first, the mere desire of one of the tenants is sufficient to set the Courts in motion ; but as to the latter, cause must be shown.