#### Jackson, *ex dem.*Wynkoop, *against*Myers.

NEW-YORK,

October, 1817.

In a partition under the act, Sess 8. ch- 39, s. 15. (1 Laws *N.*T. 170. *Greenl.*ed.) all the par-tie- must be tenants in common of all : \ land intended to be divided í and if some of the par ties had an interest in same part~ofthe land. But not in another part, the partition is void. '

THIS was an action of ejectment, brought to recover part of' a lot, of thirty-three acres, situate in the town of *Catskill,*in the county of *Greene.*The cause xvas tried before Mr. J. *Van Mess,*at the *Greene*circuit, in *August,*1816.

The plaintiff made title to the premises in question, by giving in evidence a deed of partition between *Johannes*and *Christian Myers,*of the one part, and *Peter*and *Tobias Wynkoop,*and ' *Hezekiah Wynkoop,*the lessor of the plaintiff; of the other part, bearing date-the 20th of April, 1796, by xvhich the parties of the first part, released to the parties of the second part, the lot of thirty-three acres, in severalty: and also a deed of partition between Hezekiah, *Tobias,*and *Peter Wynkoop,*by xvhich the lot is released, in severalty, to the lessor of the plaintiff. The defendant was in possession of the premises in question under his father, *Johannes Myers,*one of the parties to the first mentioned deed, who claimed to be the owner. *Johannes Myers,*in 1808, erected a saw mill on part of the premises ; and, in 1813, having built a grist-mill on land belonging to him, he erected a raceway from the saw mill to the grist-mill, passing over the whole of the premises in question. It appeared that there had been formerly a saw mill on the same site as the present mill.

The defendant gave in evidence an agreement between *Robert Van Rensselaer*and others, of the first part, and *Christian My*ers, and Hezekiah, *Tobias,*and *Peter Wynkoop,*of the second part, dated the 21st *April,*1789. It recited, that whereas disputes had arisen relative to the boundary line of the two patents, under which the parties respectively claimed, where it intersected a fall xvhereon a saw mill stood, in order to prevent future disputes and animosities, it was agreed, that the whole of the fall of water, at the said saw-mill, together with the mill, mill-dam, gangways and roads to and from the water, fail, should belong as well to the parties of the first part and their assigns, as to the parties of the second part, and to their associates, and to their assigns, to have and to hold the same, as tenants, in common. The defendant also gave in evidence the *357petition, in partition, of *Johannes*Myers, to the court of common pleas of the county of Green, and the proceedings thereon. Thepelition stated, that the petitioner, and Hezekiah, *Tobias,*and *Peter Wynkoop, Sophia*Folkenburgh, and *Jacob Becker,*were owners and proprietors of a certain undivided messuage or lot of ground, and mill-dam, situate in the town of *Catskill,*in manner following: “ The petitioner, of one equal undivided fourth part thereof, and the said *Hezekiah Wynkoop, Tobias Wynkoop, Peter Wynkoop,*each, of about one undivided eighth part of the mill-dam, &c. and the said *Sophia Folkenburgh,*and *Jacob Btcker,*of an equal undivided three eighth parts of the mill-dam, &c.; and three fourths of the remainder between them.” In *May*term, 1801, the court of common pleas appointed commissioners to make partition, by a rule reciting, that the petition of *Johannes Myers*was read, setting forth that the petitioner, and others, were owners or proprietors of a certain undivided messuage, or lot of land, and mill-dam, containing about ten acres, situate in the town of Catskill, &c. The commissioners, on the fourth of *May,*1802, reported that they had “ made partition of a part o the premises among the said *Johannes Myers,*and *Sophia Folkenburgh,*and *Jacob Becker,*and on such partition allotted to them, respectivly, the following lot, piece or parcel of land, to wit, to the said *Johannes Myers,*lot number two, as laid down in the map hereunto annexed, and to the said *Sophia Folkenburgh,*and *Jacob Becker,*lots number *one,*three and four, as laid down also on the map ; and as to the remainder part *of*the premises, included in lot number five on the map, together with all the rights'and privileges "belonging to the mill-dam, &c. on the east side of the *Catskill,*or creek, or the line of the messuage, or the lot of ground aforesaid, they, the commissioners, report to the said court, that a division thereof cannot be made without great prejudice to the owners or proprietors of the same.” An order having been made for the sale of the premises, they were sold and conveyed to one *Dedericlc,*who, by deed of the 19 th of *March,*1803, released the same to *Johanpes Myers.*y-

A verdict was taken for the plaintiff subject to the opinion of the court.

*J. V. D. Scott,*for the plaintiff, contended,

1. That the partition was not valid, as it did not appear that the notice *358required by the act to be given to the owner of the intended application, had been given; *{Act. Sess.*8. ch. 165. s. 15. passed 16th *March,,*1785.*) nor did it appear that the commissioners appointed by the court were sworn, according to the direction 01 the act

2. That if the partition was valid, in these respects, still it did not embrace the premises in question. At least, part of the premises in question were not embraced in the agreement of 1789, and could not, therefore, be affected by the partition in 1802.

3. At most, the only right the defendant had, was to use the, land appurtenant to the saw-mill; he had no right to the raceway *for the*grist-mill, or to use it for any other purpose, † A grant of a right of way gives only the usufruct of the land. The fee or right of soil remains in the original owner.‡

*E. Williams,*contra,

insisted, that the judgment 'in partition was conclusive, and bound all the parties to the petitionǁ; and that the return of the commissioners, stating that they had been - duly sworn, was sufficient, and the fact need not b$ proved by other evidence.§

*Van Buren,*(Attorney-General,)

in reply, said, that this not being a proceeding according to the course of the common law, the judgment was not conclusive. No writ of error lies where the proceeding is not in the course of the common law; though, perhaps, it might be brought up by certiorari.**

*

¿59*.*

†

 ioo4.63;r«i2joíí

‡

*3*Johns Rep. 357.

ǁ

*cook v.*Allen, *2 Mass. Rep. 462.*

§

*Symons*v Kimball, 3 *Mass. Rep.*299.

**

**Salk. 263. 3 *Mass. Rep.*315.

Spencer, J.

delivered the opinion of the court. Several objection^ were made, on the argument, to the partition, which took place in the common pleas of *Greene county ■ the*right of the plaintiff to a portion of the premises, about three eighth parts, being conceded, unless it was.devested by the partition.

Without going into a consideration of all the objéctions to the validity of that partition, we are of opinion, that it is invalid and null, in one respect. It appears, as well from the petition of *Johannes Myers,*on whose application the partition was made, as by the report of the commissioners, that the lessor of the plaintiff had no interest whatever in the ten acre lot, which was to be divided, and actually was divided. He ivas a tenant in common in the mill-dam tract, but not in the ten acre *359tract. Thus a partition was attempted to be effected, of a tract of which none of the Wqnkoops were owners, together with a tract in which they had a tenancy in common, by blending two dis~inct rights. -

This is contrary to the letter and spirit of the act. authority given by the statute must be, at least, substantially, pursued, and the 15th sect. (1 *Greenl. ed.*Laws, *17 0.*a partition in those c5ses only where the land intended to be divided is owned in common; and partition must be made between all the tenants in common. The parties before the court must be tenants in common of all the land to be divided, and here, confessedly, they were not.

Judgment for the plaintiff.