Lorenz v. Jacobs

Sharpstein, J.: This is an action for partition of a water ditch, known as the Conner ditch, and the water rights appurtenant thereto.

It is averred in the complaint that a partition can not be had of the water running in the ditch of which the parties are alleged to be tenants in common, and the plaintiffs prayed a sale and partition of the proceeds thereof. The Court, in an interloeutary decree, from which this appeal is taken, ordered a sale of the property as prayed. The complaint was demurred to by the defendants on the ground that it “does not state facts sufficient to constitute a cause of action,” because “said action appears upon the face of the complaint to be for the sale of the property, and not for its partition.” In this “statement of the esse” the counsel for appellants remind us that tins case is now for the third time on appeal to this Court. 1. In 1863, McGillivray v. Evans et al., reported in 27 Cal. 92, et seq. 2. Lorenz et al., Grantees of McGillivray, v. Jacobs et al. (being the same defendants), reported in 53 id. 24. Upon the first appeal it was distinctly held by this Court that the property of which the parties were tenants in common, viz., the water flowing in a ditch, was not susceptible of division, and that the only partition that the Court could make which would definitely and permanently end the dispute of the parties, and do justice between them, was to order a sale and distribute the proceeds. (McGillivray v. Evans, supra.) The judgment which ordered a partition of the water in that case was reversed, and the cause remanded for a new trial, with a suggestion of the Court that if the pleadings did not present the questions which the parties desired to litigate and have determined, “in view of the fact that a mechanical division of the water cannot be had” * $ * “the suit might be dismissed, and another commenced upon another theory.” That suggestion appears to [264]have heen followed. That action was dismissed, and this was commenced upon the theory that the relief to which the plaintiffs were entitled was to have the property sold and the proceeds of the sale partitioned between the tenants in common. But the counsel for appellants insist that the complaint does not allege any facts and circumstances “tending to establish the impossibility to divide the whole or some portion of the property without prejudice,” and that the omission so to do is a fatal one.

There is an allegation, “ that the plaintiffs and defendants are co-tenants, and own, hold, and are in possession, as tenants in common, of the following described real property, situated in the County of Trinity and State of California, viz.: A certain water ditch,'running from and taking water from Conner Creek, at a point on said creek about forty yards below the site of Bartlett and Evans’ sawmill, and running to and conducting the water of said creek to Bed Hill, in said county, for mining and other useful purposes, which said ditch was formerly known as the Conner ditch.”