#### Reynolds, Appellant, vs. Nielson, Respondent.

*January 13*

February *3, 1903.*

*Shipping: Vessels: Partition: Federal courts: Jurisdiction: Admiralty: Equity.*

*1.*Sec. 563, R. S. of XI. S., provides that the federal district courts shall have exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction “saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.” *Held,*that the jurisdiction of federal courts *484over the rights of part owners in vessels on the great latees is not exclusive, and that a suit to partition such a vessel between tenants in common is maintainable in the courts of Wisconsin.

2. The fact that the admiralty courts have no admiralty or maritime jurisdiction to compel partition of a vessel, where there is a majority owner, does not affect the jurisdiction of state courts to afford such relief.

Appeal from a judgment of tbe circuit court for Manito-woc county: Michael KiewaN, Circuit Judge.

*Reversed.*

Action for partition of a vessel licensed and registered under tbe navigation laws of tbe United States, and used upon tbe waters of Labe Michigan. Plaintiff and defendant owned the vessel in unequal shares, tbe former being tbe owner of one-third and tbe latter of two-thirds. Defendant pleaded, among other things, want of jurisdiction of tbe subject of tbe action in that tbe rights of tbe parties were cognizable only in tbe federal court under its admiralty and maritime jurisdiction. Tbe findings of fact were to tbe effect that tbe vessel was owned as and was of tbe character claimed in tbe pleading; that it was at Manitowoc, Wisconsin, at tbe time of tbe commencement of tbe action; that defendant, as majority owner, insisted upon controlling it without consulting plaintiff ; that be bad refused to unite with plaintiff in terminating tbe common ownership by a purchase or sale; that be bad never denied to plaintiff an inspection of tbe accounts showing tbe income and expenses of operating tbe vessel or neglected to pay him bis proper share of tbe net earnings; that tbe property at tbe time of tbe commencement of tbe action was free from all liens, and that, so far as this case is governed by secs. 2327a, 2327c, and 4257, Stats. 1898, plaintiff complied therewith before it was commenced.

On such findings tbe court decided as matter of law that it was without jurisdiction because tbe rights of tbe parties-were governed by tbe maritime laws of tbe United" States. Judgment was rendered accordingly.

*485The cause was submitted for the appellant on the brief of *J. B. Wildish,*and for the respondent on that of *M. 0. Krause.*

Majíshall, J.

The judgment is wrong and must be reversed. A vessel is personal property and the rights of the owners therein are proper subjects for consideration in the state courts in cases where the jurisdiction of the federal court in the exercise of its admiralty and maritime powers is not exclusive. When a subject is within admiralty and maritime jurisdiction, such jurisdiction is not necessarily exclusive, as is plainly indicated by the federal law. Sec. 563, E. S. of U. S. It provides that district courts have exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction, *saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.*From that it will be seen that, to justify the decision here, the case must be a civil cause of admiralty and maritime jurisdiction, and it must be one for which there is no remedy in the state courts. The fact is that it is neither. This court has several times held that, in cases within maritime and admiralty jurisdiction, the state court has jurisdiction concurrent with that of the federal courts in administering the remedies afforded by its laws. *Horn v. Schooner Trial,*22 Wis. 529; *Thorsen v. Schooner J. B. Martin,*26 Wis. 488; *Warehouse & Builders’ Supply Co. v. Galvin,*96 Wis. 523, 71 N. W. 804.

There is no need here to define the precise limits of the term “civil causes of admiralty and maritime jurisdiction.” Suffice it to say that it does not include any where the primary object in view is to obtain a partition of vessel property, nor any where partition between common owners of a vessel can be enforced, there being a majority ownership as in this case. As regards mere control of a vessel by maritime law, the majority interest is supreme, subject to such restraints by the *486federal court as may be necessary to protect tbe minority owner in bis rights to bave tbe vessel employed reasonably, to bave it preserved, and to enjoy bis share of tbe net earnings. Story, Partn. §§ 437 — 439; *The Seneca,*18 Am. Jur. 486, Fed. Cas. No. 12,670; *The Orleans v. Phoebus,*11 Pet. 183; *Andrews v. Betts,*8 Hun, 322.

Counsel for respondent seem to suppose, and we apprehend tbe trial court was guided by tbe same idea, that since tbe federal court, in tbe exercise of admiralty and maritime jurisdiction, cannot under any circumstances properly compel tbe sale of a vessel and a division of tbe proceeds where there is a majority owner, tbe state court cannot, overlooking, it seems, that such circumstance suggests jurisdiction in such cases by tbe state court instead of want of jurisdiction. If tbe federal court has jurisdiction of a matter pertaining to a vessel, subject to tbe navigation laws of tbe United States, because tbe same is within tbe scope of its admiralty and maritime powers, inquiry must be made as to whether such jurisdiction is exclusive before tbe matter is deemed to be outside tbe jurisdiction of tbe state court. If there is no federal jurisdiction, obviously, that fact alone does not militate against there being state jurisdiction. A vessel is personal property. A judicial sale thereof and division of its equivalent in money, where partition cannot otherwise be bad, and there is good ground in equity for one of two or more common owners to seek such relief, is a proper subject for tbe exercise of equity jurisdiction by tbe rules of tbe common law. In fact, only a court of equity, by tbe common law, can deal with such matters. Its jurisdiction in that regard is very ancient and is founded solely on want of any remedy at law. Knapp, Partn. 492; Freeman, Co-Ten. & Partn. § 426; *Conover v. Earl,*26 Iowa, 167; *Fobes v. Shattuck,*22 Barb. 568; *Swain v. Knapp,*32 Minn. 431, 21 N. W. 414. Under tbe chancery rule mere desire of a part owner of personal property to terminate tbe common ownership is not sufficient to put judicial machinery *487in motion. That has been changed here by statute. Secs. 2327a, 23276, 2327c, Stats. 1898. Now any person owning personal property in common with another or others may at his election have a partition thereof in specie where that can reasonably be effected, or in the equivalent in the form of money wdiere that is necessary because division in no other way can be accomplished at all or without injury to the interests of the parties. All of the provisions of law relating to complaints in actions for the partition' of real estate, so far as applicable, are made to include partition of personal property. Sec. 2327a, Id.

It would seem from what has been said that on principle the circuit court had jurisdiction of the subject of this action. But few similar cases are reported in the books. That may be because seldom has the power of the state court in such matters been questioned. *Andrews v.*Betts, 8 Hun, 322, is directly in point. It was there held that proceedings for the partition of personal property can be had in equity and nowhere else, and that vessels are no exception to that rule. That case is recognized by text-writers as laying down the law correctly. Knapp, Partition, 491. The text there is as follows:

> “The court of equity has jurisdiction over an action, brought to secure a partition of personal property between tenants in common thereof. It matters not whether such property is a vessel to be used upon the high sea, or other personal property, so long as there is a co-tenancy and a failure to agree upon the part of the co-tenants, a court of equity has jurisdiction over the partition of the property, or a sale thereof and a division of the proceeds. Such court is competent to give relief in such cases by making the decree in partition, as the circumstances of the case or facts may warrant, or decree a sale, where the partition of such property cannot be had.”

We indorse that. It is a mere statement of the common law. It is re-enforced by our statutes above cited. The circuit court, on the facts of this case, should have granted the *488prayer of tie complaint that the property be sold and the proceeds divided according to the interests of the parties, and should have, by the decree, directed some appropriate method of making such granted relief effective.

*By the Gourt.*— The judgment of the circuit court is reversed and the cause remanded for judgment in accordance with this opinion.