Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-05-04

eral propositions and 1t was excepted TO
as a whole or in gross. We thinK the
rule is well established that in such case
if any portion excepted to is sound, the
exception cannot be sustained.
morrill, VS.. Palmer, 80 L. r. A. All,
and cases citedl
exceptions should be specific and
should be directed, not to the charge as
whole, but to the portion or portions
thereof which are considered objection
able 1t is only where the charge is err
ronsous in its whole scope and meaning
or where the charge in effect asserts but
a single proposition that q general excep
ton will be available"
e Ency. Pl. and Pr, 257. See citations
given Of many cases in twenty-five
State Courts, and numerous cases in the
Federal courts.)
IF an exception is taken to an entire
charge containing several distinct and
separate propositions, or in gross to
series Of instructions, the exception will
be unavailable if any one of the PROPOSE
tons ia the charge or any of the instruc-
| tons is correct.''
! I'D. 259 and cases ci6ed from twenty
courts.)
The charge in ques ii on contained these
propositions among others: "Co-owners
Of mining claims each Lave the right to
work the mine, one is not liable for the
expenses of the others work. If either
extracts valuable ore he is liable to share
the profits with the other. He is entitled
to retain his costs and expenses out, but
tho profit after that must be divided with
his co-ewner in proportion to the interest
of each"
We thought and still think the above
propositions are correct. Counsel in their
brief pointed out some other propositions
embraced in said charge and contend. d
that they were erroneous. Whether they
were erroneous or not we did not con-
slider material. If error was committed
in giving them, the exception being
taken to the whole charge, or in gross, it
> could not be sustained.
.. Fourth Ground. Petitioner says: "In
our original brief we tried to make it
clear to the court that PauPs so called
. lease was void because it would preju-
dice the rights of the ce-tenant Cragnaz
to partition, that a careful perusal OF
the majority opinion fails to show us
wherein the court has taken notice o.
this view of the case, and hence we as
sumo that it may have been overlook ed
Z The court did not consider Paul's right:
to partition, but does not seem to hav,
T. looked at the possible rights that Crag
naz might have had.'
> What we said about partitions was i,
: reply to the defendants contention tina
II Pauls only remedy was an action 70
partition or for an accounting of rent
: and profits. We did net notice the con
9 tentien, N our former opinion, that tn
plaintiffs lease was void because
u would prejudice the rights of the ce-ten
ant, CragnaZ, to partition, because hi
right in that respect was not involved il
ii the case. The defendant did not seek
IS partition of the mine and when be doe
e so in a proper action and his right there
to is properly brought before the eour
y for adjudication it will be time to pas
e upon that question. His possible" RICH
} was not in issue.
"a In the case of the Boston Franklinit
'e Company VS.. C0ndt and Torrey, 10 \. J
"a Eq. 1914, on which petitioner seems t
ir rely, we find nothing to support said cor
L. tention. Iu that case it was held that
~ tenant in common could not, as agains
~ his cO-tenant, convey his right to an
specific portion of the common propert
l. to the prejudice of his co-tenant. Th
court said: 1.-THE reason is, that it woul
oi prejudice the right of the co-tenant to
es partition. Each tenant in common of a
ivi1 oI iot hoe rich :,
"a by having one-half Of the whole prem
Ill., ises set off to him; he must not be con
PEELED to partition one part with one c.
" tenant and another with another co-te
ne ant as he would if such conveyance we
TO- good.'' That was suit in equity fc
IL partition. The complainant claimed t
M tie to lone equal moiety, or one-half pa
It's of tie iron, zinc and other ores in a trac
)s- of land in Sussex County" He elaine
err no title to any other part of said ira,
ay His right to said ores was based Oh Il
a following chain of title. E. and F. beil
ing the owner OF said tract of land
ar- tenants in common, f. by deed convey,
on to w. and A.. in terms, "all the iron. ri
ng. ana other eres on or within any lands
of F. in the county Of Sussex" This tit
as Of w. and A. by several mesne conve
he ancss was vested in the complaint, al
of, subsequently F. conveyed to his son t
in undivided half of this tract, the son CO
IN veyed this undivided half to E. T
mt title of E. in the tract was by sever
or mesne conveyances vested in the defen
as ants. The court held, that the cemplai
1914 ant was not entitled to partition
he against the defendants or to any relief
ed against them. And why? l. Becau
It's the title to said tract having becon
oh vested in E. the other co-tenant, in Sc
to crafty and through him in the defendar
ue, there could be no partition. 2. Becau
he the said conveyance of said ores by
TO- was conveyance of specific part
m. said tract of land, held by L. and f.
tho common and was void as to f, and |