R. S. 103, § 72. Money awarded partition estab lished. commenced in either of the courts mentioned in this chapter, that court shall retain jurisdiction of the case, saving the right of appeal in all cases where an appeal is allowed by law. SECT. 71. Where sums of money are awarded by the commissioners to be paid before to make the partition just and equal, the partition shall not be established by the court until all such sums are paid to the parties entitled thereto, or secured to their satisfaction, or that of the court before which the matter is pending. 1850, 239. 7 Pick. 208. 3 Gray, 536. Compensation for improvements after partition; 70. SECT. 72. If after a first partition under this chapter any improvements have been made on any part of the premises which by the new R. S. 103, $$ 37, partition is taken from the share of the party who made the improvements, he shall be entitled to compensation therefor, to be estimated and awarded by the commissioners, and paid by the party to whom such part of the premises is assigned on the new partition, and the court may issue an execution therefor in the common form. party holding under partition entitled to. SECT. 73. Every person holding lands under a partition made under this chapter, shall in case of an eviction be entitled to compensation for R. S. 103, § 71. improvements made thereon, in the manner prescribed in chapter one hundred and thirty-four. Return may be set aside. SECT. 74. In all cases of partition the court may for any sufficient R. S. 103, §§ 30, reason set aside the return and commit the case anew to the same or to other commissioners, whereupon the same proceedings shall be had as are before directed. 59. 5 N. H. R. 329. 11 Allen, 187. Returns of parti- Registries here tofore made to SECT. 75. The return of the commissioners, when accepted, shall remain in the office of the clerk of the courts, or in the registry of probate, as the case may be; and a copy thereof, certified by the clerk, or register, shall be recorded in the registry of deeds for the county or district where the land lies. SECT. 76. All records in the registry of deeds of partitions hereto fore made, if no other objection exists thereto, shall be deemed valid and sufficient whether recorded from the original return or from a copy thereof certified by the clerk or register of the court in which the partition was made. Division of water 4 Gray, 486. of water of natural stream. 1859, 128. DIVISION OF WATER RIGHTS. SECT. 77. All persons who are interested as joint tenants, tenants in common, or otherwise, in any mill privilege, water right, or other incorporeal hereditament, may be compelled to divide the same, either by suit in equity, in the supreme judicial court, or in the manner herein before provided for the division of land. In the latter case, the commissioners appointed to make partition shall set forth in their return the best method of setting off to the several parties their respective shares or interests, and thereupon the court may require the parties interested to perform such acts as justice and equity may require, and may make all such orders and decrees in the premises, according to the course of proceedings in equity, as may be necessary to do justice between the parties. SECT. 78. Under the provisions of the preceding section, partition may be made of the water of a natural stream not navigable, the banks of which are owned by different riparian proprietors. [DIVISION OF FLATS.] forbidden. .. 104, § 1. 7 Met. 151. how restored. SECTION 1. No person shall make an entry into lands or tenements, Forcible entry except in cases where his entry is allowed by law; and in such cases he shall not enter with force, but in a peaceable manner. 5 Cush. 214. 8 Cush. 32. SECT. 2. When a forcible entry is made, or when a peaceable entry Person ousted, is made and the possession unlawfully held by force, or when the lessee R. S. 104, § 2. of land or tenements, or a person holding under such lessee, holds pos- 10 Mass, 10 session without right after the determination of the lease by its own 2 Met. 29. limitation, or by notice to quit or otherwise, the person entitled to the 3 Met. 350. premises may be restored to the possession in the manner hereinafter 10 Met. 230, 298provided. 13 Met. 273. 5 Cush. 563. 11 Cush. 227. 1 Gray, 571. 4 Gray, 432. See Ch. 87, § 8. 12 Cush 174, 323. 11 Gray, 181, 480. 97 Mass. 206. 101 Mass. 63, 66. 104 Mass. 595. 403. 5 Met. 343. 11 Met. 99. 117m.153, of lease by rea- to,&c. re stored, SECT. 3. When a lease in writing is determined in the manner pro- On termination vided in section thirty of chapter ninety, the lessor and his assigns may be restored to the possession of the premises in like manner: provided, that when a suit is brought under this chapter to recover the possession by reason of such termination, if the tenant four days at least before the Proviso. return day of the writ pays or tenders to the landlord or his attorney 15 the rent due, with interest thereon and all costs of suit, the lease shall 6 Gray, 227. be in force. Nothing contained in this section or said section [thirty] [twenty-eight] shall affect any other rights or remedies on the part of the lessor provided in the lease. 1847, 267, § 2. 13 Allen, 70. 1104.440 menced within SECT. 4. No restitution shall be made under the provisions of this Suit to be com chapter of any lands or tenements of which the defendant, or his ances- three years. tors, or those under whom he holds the premises, have been in the quiet R. S. 104, § 3. possession for three years next before the commencement of the suit, unless his estate therein is ended. R. S. Act of amend. § 14. 12 Gray, 206. Form of writ. 2 1841, 55, § 2 3 Met. 350, 548. 10 Met. 223, 230, 13 Met. 186. Cush. 487. 5 Cush. 563. SECT. 5. The person entitled to the possession of the premises may take from a justice of the peace, or police court, a writ in the form used for an original summons in common civil actions before such justices or courts, in which the defendant shall be summoned to answer to the complaint of the plaintiff, for that the defendant is in possession of the lands or tenements in question, describing them, which he holds unlaw- 1 fully and against the right of the plaintiff, as it is said; and no other declaration shall be required. SECT. 6. The writ shall be served seven days at least before the return day, and the suit shall be conducted like other civil actions before such justices or courts. See Ch. 18, § 61 12 Gray, 206. SECT. 7. If it appears by default or on trial that the plaintiff is entitled to the possession of the premises, he shall have judgment and R. S. 104, § 6. execution for the possession and for his costs. SECT. 8. If the plaintiff becomes nonsuit, or fails to prove his right when for deto the possession, the defendant shall have judgment and execution for R s. 104, § 7. his costs. fendant. 10 Met. 291. 170 Upon appeal or fendant to rec- Zance. R. S. 104, § 10. SECT. 9. When judgment is rendered for the plaintiff for restitution, and the defendant appeals therefrom, or when the defendant removes the case as provided in section thirteen of chapter one hundred and twenty, he shall, before such appeal or removal is allowed, recognize to the plaintiff, with sufficient surety or sureties, to enter the action, to pay all rent then due, all intervening rent, and all damages and loss which the plaintiff may sustain by reason of the withholding of the possession 2 Gray, 311, 314. of the demanded premises, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is made is affirmed. Upon final judgment for the plaintiff, all sums of money then due to him may be recovered by writ of scire facias or action of contract upon the recognizance. 10 Met. 2. 423. 102 Mass. 514. SECT. 10. If the case is transferred at the request of the defendant upon any plea or suggestion by him that brings in question the title to the freehold, and if it appears to the court in which the action is determined, that the defendant originally entered on the premises under a lease from the plaintiff, or from any person under whom the plaintiff claims, or that he held them under any such lease, and that his said plea or suggestion was frivolous and intended for delay, the court shall cause a certificate thereof to be entered on the record, and the defendant shall thereupon be liable to pay double the yearly value of the demised premises from the time of the notice to quit the same, which may be recovered by writ of scire facias or action of contract on the recognizance. SECT. 11. The judgment in such action shall not be a bar to any action thereafter to be brought by either party to recover the premises in question, or damages for any trespass thereon; but the sum recovered for rent according to the provisions of the two preceding sections shail be allowed and deducted in any assessment of damages in such subse quent action by the original plaintiff. Action of waste by reversioner; SECTION 1. If a tenant in dower, by the curtesy, or for life or years, may be brought commits or suffers waste on the premises, the person having the next immediate estate of inheritance may have an action of waste against such tenant, wherein he shall recover the place wasted and the amount of the damage. R. S. 105, § 1. 5 Pick. 192, 7 Pick. 152. 8 Pick. 309. 7 Allen, 146. by an heir. R. S. 105, § 2. SECT. 2. An heir may bring an action for waste done in the time of his ancestor. SECT. 3. If an issue of fact is joined in the cause, it shall be tried by a jury in the usual manner, either with or without a view of the premises, as the court shall order; and the jury that inquire of the waste shall assess the damages. for waste; 1852, 312. by whom SECT. 4. A person entitled to such action of waste may instead Action of tort thereof bring an action of tort in the nature of waste, in which he shall R. S. 105, § 4. recover such damages as he has suffered by reason of the waste. SECT. 5. Such action of tort may be maintained by one who has the remainder or reversion in fee simple or fee tail, after an intervening brought estate for life, and also by one who has a remainder or reversion for life 1852, 312 or years only, and each shall recover such damages as he has suffered 3 Pick. 203. by the waste. R. S. 105, § 5. may be prosecuted or SECT. 6. An action of tort for waste, if commenced in the lifetime of the tenant, may be prosecuted against his executors or administra- brought against tors; and such action may be originally brought against the executors executors, de. R. S. 105, § 6. or administrators of the tenant, for waste committed or suffered in his 1852, 312. lifetime. SECT. 7. If a joint tenant, coparcener, or tenant in common, of undivided lands, cuts down, destroys, or carries away, any trees, timber, wood, or underwood, standing or lying on such lands, or digs up or carries away any stone, ore, or other valuable thing, found there, or commits any other strip or waste, without first giving thirty days' notice in writing under his hand to all the other persons interested therein, or to their respective agents or attorneys, of his intention to enter upon and improve the land; or if he does any of said acts during the pendency of a petition or other suit for the partition of the premises; he shall forfeit three times the amount of the damages that shall be assessed therefor, to be recovered and appropriated as provided in the following section. 1 Penalty for held in joint waste on lands tenancy, &c. R. S. 105, § 7. 22 Pick. 490. Met. 266. recovered and RS. 105, § 8. 22 Pick 499. 1852, 312. SECT. 8. Such damages may be recovered in an action of tort by any Damages, how one or more of the other co-tenants, without naming any one except the appropriated plaintiff, and the damages shall be appropriated, one-half to the persons who shall sue, and the other half to the same persons with all the other co-tenants except the defendant, to be divided among them in proportion to their respective interests in the land. 6 Gray, 389. waste after ac sion. SECT. 9. If, during the pendency of an action for the recovery of Penalty for lands, the tenant or person in possession, with knowledge of such pen- tion for possesdency, commits strip or waste, the demandant, if he recovers judgment, R. 105, § 9. may afterwards recover, in an action of tort, three times the amount of 1852, 312 the damages that shall be assessed therefor. 8 Pick 514. 2 Cush. 401 11. SECT. 10. If any person without license wilfully cuts down, carries Penalty for wilaway, girdles, or otherwise destroys, any trees, timber, wood, or under-ful trespass on wood, on the land of another, the owner may recover, in an action of tort, RS. 105, §§ 10, three times the amount of the damages that shall be assessed therefor, 1852, 312. unless it appears that the defendant had good reason to believe that 110 M. 280 the land on which the trespass was committed was his own, or that he was otherwise lawfully authorized to do the acts complained of, in which case he shall be liable only for single damages. in case of invol 1852, 312. SECT. 11. When a trespass on lands has been casual and involuntary, Tender allowed the trespasser may tender sufficient amends before an action is brought; untary trespass. and if afterwards sued, he may in his answer disclaim all title to the RS 105, 12. land, allege that the trespass was casual and involuntary, and set forth the tender, bringing the money into court. If upon the trial the allegations appear to be true, and the damages assessed do not exceed the amount so tendered, the defendant shall recover his costs. court. SECT. 12. If a tender was not made before the commencement of the or money may action, the defendant may disclaim title, allege that the trespass was be brought into casual and involuntary, and bring into court suflicient amends, with the RS 105, § 13. costs of suit up to that time. If the plaintiff does not accept the same in satisfaction, and if upon trial the allegations appear to be true, and 1852, 312. Injunction to stay waste; R. S. 105, § 15. how dissolved. R. S. 105, § 16. Injunction for waste in case of land attached, or action for possession, &c. the damages assessed do not exceed the amount so brought into court, the defendant shall recover his costs. SECT. 13. The supreme judicial court, or one of the justices thereof, may either in term time or vacation, after the filing of the bill or other commencement of a suit concerning waste, issue a writ of injunction to stay waste, and issue such other writs and processes, and make such orders and decrees, according to the course of proceedings in equity, as justice and equity may require. SECT. 14. Every such injunction to stay waste may be dissolved, either in term time or vacation, by the supreme judicial court, or any one of the justices thereof. SECT. 15. When a person whose real estate is attached commits waste thereon, or threatens or makes preparations so to do, or when a real action is brought to foreclose a mortgage, or for possession under the same, or for the recovery of land, and any waste on the land has been 1852, 312, § 54. committed or threatened by the defendant, or any one claiming under him or acting by his permission, the court in which the suit is pending or any one of the justices may on the application of the plaintiff, either in term time or vacation, issue a writ of injunction to stay such waste. R. S. 105, § 17. 1856, 278. Applicant to give boud. 1856, 278. Further proceedings in such case. R. S. 105, § 18. SECT. 16. In any case under the preceding section, the court or justice may require that the applicant shall before the issuing of the writ give bond with sufficient sureties to the adverse party, conditioned that the applicant shall pay all damages which may arise from the issuing of the injunction if it is dissolved. SECT. 17. The court may arrest and commit the defendant for a violation of such injunction, and issue such other process as may be necessary or proper to enforce obedience thereto, in like manner as the supreme judicial court may do upon a suit in equity pending before them; and the injunction may be dissolved, either in term time or vacation, by the court in which the suit is pending, or by any one of the justices. Judgment for abatement of SECTION 1. When the plaintiff prevails in an action of tort for a nuisance, the court may, in addition to the usual judgment for damages and costs, enter judgment that the nuisance be abated and removed, and R. S. 106, §§ 1,2. may award an execution in common form for the damages and costs nuisance. Warrant therefor: 1852, 312. 11 Pick 452. 7 Allen, 433. may be postponed: R. S. 106, § 3. when demandable of night. RS. 106, § 4. 12 Cush. 128. and a separate warrant to the proper officer, requiring him to abate and remove the nuisance at the expense of the defendant, in like manner as public and common nuisances are abated and removed. SECT. 2. The court may on motion of the defendant order a stay of such warrant for a time not exceeding six months, to give him opport nity to remove the nuisance, upon his undertaking to do so within tie time ordered. SECT. 3. If the plaintiff recovers judgment in a second suit for the continuance or repetition of the same nuisance, whether there was in the first suit a judgment for abatement and removal or not, he shall be |