them from those claims have been mixed with other ores until after an account of the amount and assay value thereof had been taken, and that an account of the amount and assay value of all ores which have been extracted from either of the claims in question has been kept, and that the complainant has been informed thereof; denies that the complainant has no way of ascertaining in what parts of the Snohomish and Tramway claims he and Arthur P. Heinze are carrying on their mining operations, but, on the contrary, avers that it has full opportunity to obtain the information, and has had full knowledge thereof; that, upon its coming to the knowledge of the respondent F. Augustus Heinze that a demand had been made upon the foreman of the Rarus mine for the admission of the representative of the complainant into the underground workings of the Snohomish and Tramway claims, respondent gave orders to said foreman to admit such representative, and so notified the complainant; denies that he and Arthur P. Heinze are converting to their own use, or have so converted, all of the ores extracted from the mining claims in question, but, on the contrary, alleges that on or about June 27, 1899, the respondent F. Augustus Heinze notified the complainant that the portion of ore claimed by it would be stored until the actual cost of mining the ore from the Snohomish and Tramway claims had been ascertained; that such portion of the ore has been stored, and that on the 8th day of July, 1899, he mailed to the complainant a statement of the cost of mining the ore, and requested payment of the amount due for mining the portion which it claims, and offered, upon the payment of said amount, and the payment by the complainant of the actual cost of mining the ore stored, and the actual cost of mining the ore in the future, to deliver the portions claimed by the complainant, on the dump.

On the 27th of July, 1899, the court below entered an order appointing John S. Harris receiver of the interest in the Snohomish and Tramway claims, "which is claimed by the complainants herein, and which is also claimed by the cross-complainants, F. Augustus Heinze, as administrator of the estate of James Larkin, deceased, and Clara A. Larkin, in their cross-complaint filed in this action"; describing an undivided one-half of the Snohomish claim, and an undivided twothirds of the Tramway claim, and authorizing and directing the receiver to "enter into the possession of said lode claims, and all veins belonging thereto, together with all underground workings thereon, and of the property above described of the other tenants in common, F. Augustus Heinze, and persons claiming under him since commencement of this action"; and further authorizing the receiver "to operate and mine any portion of the said lode claims, or either of them, not now being mined or worked of the said co-tenants, F. Augustus Heinze, and all parties claiming under him since the commencement of this action, or either of them, or their agents, representatives, or lessees, and to take charge of all ores which may be extracted by him from said mines, and to have the same reduced or smelted, subject to the right of the said co-tenants to receive their proportionate share of all ores upon the dumps upon the payment of the actual reasonable cost of mining and hoisting the same, or

subject to an accounting to nonjoining co-tenants for their proportionate shares of the net profits of said mining operations"; and declaring that "the said receiver shall sell, dispose of, or have reduced or smelted, the said ore or ores extracted from said claims, or either of them, so as to realize the most money therefrom, and, after paying expenses incidental to the conduct of such mining business, to hold the proceeds arising therefrom pending the determination of the issues of this action"; and further authorizing and directing the receiver "to receive and demand of said co-tenants, F. Augustus Heinze, and all parties claiming under him since the commencement of this action, or either of them, or their agents or lessees, his proportionate share, to wit, two-thirds of the Tramway lode claim, and onehalf of the Snohomish lode claim, on the dump, of all ore or ores which may be extracted from said premises, or from any veins claimed to belong thereto, by the said co-tenants, or either of them, or their agents or lessees"; and authorizing and directing the receiver "to, as soon as possible after his appointment and qualification, take and receive said ores as the same shall be mined from said premises, and to sell, reduce, or otherwise convert into money, as the said receiver shall deem best, and so as to realize the most from said ores so received, and shall on the 21st day of each month, beginning on the 21st day of August, 1899, pay to said F. Augustus Heinze, and those claiming under him, or their agents duly authorized, his proportionate share of the actual and reasonable cost of mining and hoisting the said ores so delivered during the month previous thereto." The order appointing the receiver further directed:

"That the said F. Augustus Heinze, and all parties claiming under him since the commencement of this action, or either of them, or their agents, or any person or persons claiming under them, or either of them, shall deliver to said receiver, his agent, representatives, or lessees, two-thirds of the ore extracted from the Tramway lode claim, or from any veins belonging thereto, or having their tops or apices within the said Tramway claim, and one-half of all ore extracted from the Snohomish lode claim, or any veins belonging thereto, or having their tops or apices within said Snohomish lode claim, upon the dump, upon same being hoisted or otherwise removed from said premises."

The order further directed that F. Augustus Heinze, and all persons claiming under him, shall at all times afford the receiver, his agents or representatives, free access to the premises, and to all underground workings therein, and all workings or veins belonging thereto, in the actual control or possession of the said co-tenants, their representatives, or persons claiming under them, for the purpose of inspecting the operations therein conducted, and of obtaining any information in connection with said operations and the costs thereof which the receiver may deem necessary; and all parties to the suit, their agents and representatives, were enjoined from interfering with the receiver in the performance of any of his duties.

The receiver did not engage in mining the claims in question under this order, but demanded and received from F. Augustus Heinze the proportion of the ores from each of the claims required to be delivered by the order, and filed his first account on the 21st of August, 1899; his second, September 21, 1899; his third, October 26,

1899; his fourth, November 28, 1899; his fifth, December 30, 1899and asked for their settlement and allowance. The cross-complainants, F. Augustus Heinze and Clara A. Larkin, filed exceptions thereto, which, after hearing, were settled by an order entered February 1, 1900, in which the receiver was directed to pay to F. Augustus Heinze an additional amount in the sum of $3,040.39. The receiver filed his sixth account January 29, 1900; his seventh account, February 28, 1900; his eighth account, March 27, 1900, and his ninth account, April 26, 1900.

The sixth, seventh, and eigth accounts were objected to by F. Augustus Heinze, and upon their settlement the receiver was ordered to pay to Heinze further sums of money. The receiver rendered his tenth account, entitled "Final Report of First Receivership," June 4, 1900. In this the receiver accounted for the ores received and expenses incurred up to March 17, 1900. Shortly prior to this, to wit, February 26, 1900, an application was made to the court below for an extension of the receivership

"Over the whole of said Snohomish and Tramway lode claims, and to direct and empower said receiver to take and assume possession and control of the whole of said Snohomish and Tramway lode claims, and to operate the said Snohomish and Tramway claims, and to take charge of all ores extracted from said claims, and from any veins belonging thereto, or having their tops or apexes therein, and generally to have the supervision and control of said lode claims, and the proceeds thereof, pending the determination of the several issues in this action; to pay all expenses incident to the mining of said properties, and to hold the proceeds arising therefrom for the respective parties thereto, in accordance with the several interests in said claims, and with full power and authority to hold, control, and operate said several properties, and to hold and retain the proceeds arising therefrom, for the benefit of the several parties to this litigation, until it shall be finally determined who is entitled thereto, and for such other power and authority as to the court may seem proper with which to invest the said receiver."

This application was based upon another affidavit of Batterman, the grounds of which are, in substance, that the Heinzes surreptitiously extracted ore from the claims in question, without delivering to the receiver his proper portion, and removed large quantities of ore from the claims without the knowledge of the receiver, by covering the cars with waste, and that the receiver was obliged to employ a large number of inspectors to look after the mining operations, at a cost of about $2,000 a month; that the Heinzes had made excessive, fictitious, and fraudulent charges for the mining of the ore, which had resulted in the court being obliged to hear contests on the settlement of the receiver's accounts with reference thereto; that the ores were being hoisted through the Montana Ore Purchasing Company's works, and that the same could be mined successfully and economically by means of shafts owned and controlled by the complainant. Corroborative affidavits were filed by the complainant in support of that of Batterman, which was based upon his information and belief in so far as the fraudulent acts of the Heinzes were concerned; and the cross-complainants filed various affidavits in contradiction of the matters set up in the affidavits presented on the part of the complainant, after hearing and considering which, the court below made an order extending the receivership to the whole

of the mining claims in question, and to all veins belonging thereto, together with all underground workings therein, and authorizing and empowering the receiver

"To operate and mine any and all portions of said lode claims, or either of them, and to take charge of all ores which may be extracted by him from said mines, and to have the same reduced and smelted, and to sell and dispose of the profits of said mines so as to realize the most money therefrom, and after paying all the expenses incident to the conduct of said mining operations, and the smelting and reducing of the said ores, and the expenses of this receivership, to pay to said F. Aug. Heinze and Arthur P. Heinze, or either of them, or their duly authorized agents, one-third (%) of the net proceeds of all ores extracted by the said receiver from the said Tramway lode claim, and one-half (1⁄2) of the net proceeds of all ores extracted by said receiver from the said Snohomish lode claim; or the said receiver may, and he is hereby authorized and empowered, if he shall deem it to the best interest and advantage of all persons interested in said Snohomish and Tramway lode claims, and practicable so to do, deliver to the said F. Aug. Heinze and Arthur P. Heinze one-half (1⁄2) of all ores extracted by him from the said Snohomish lode claim, and one-third of all ores extracted by him from the said Tramway lode claim, upon the dumps of the respective lode claims, or at any other such place or places within said lode claims or adjacent thereto, as shall be by the said receiver deemed practicable, and as shall be agreed upon by and between the said receiver and the said F. Aug. Heinze and Arthur P. Heinze, upon being paid by the said F. Aug. Heinze and Arthur P. Heinze one-third (%) of the actual, reasonable cost of mining, tramming, and hoisting the ore extracted by said receiver from the said Tramway lode claim, and one-half of the actual, reasonable cost of mining, tramming, and hoisting all ores extracted by said receiver from said Snohomish lode claim, together with the proportionate share of the cost of this receivership chargeable to said F. Aug. Heinze and Arthur P. Heinze. And if said receiver shall determine to deliver to said F. Aug. Heinze and Arthur P. Heinze one-third (%) of all of the ores extracted from said Tramway lode claim, and one-half (1⁄2) of all of the ores extracted by him from said Snohomish Lode Claim, upon the dumps of the said respective lode claims, or at such other place or places as shall be agreed upon by and between the said receiver and the said F. Aug. Heinze and Arthur P. Heinze, upon payment by the said F. Aug. Heinze and Arthur P. Heinze of one-third (%) of the actual, reasonable cost of mining, tramming, and hoisting all ores extracted by said receiver from said Tramway lode claim, and one-half (2) of the actual, reasonable cost of mining, tramming, and hoisting all ores extracted by him from the said Snohomish lode claim, together with a proportionate share of the cost of this receivership chargeable to the said F. Aug. Heinze and Arthur P. Heinze." This order of extension further directed that:

"The said F. Aug. Heinze and Arthur P. Heinze shall upon the 21st of each and every month hereafter, commencing with the 21st day of March, 1900, pay to said receiver their proportionate share of the actual reasonable cost of mining, tramming, and hoisting said ores so delivered during the month previous thereto, together with their just proportion of said receivership chargeable to said F. Aug. Heinze and Arthur P. Heinze."

It further directed the Heinzes to deliver to the receiver full possession and control of the whole of the mining claims in question, and of all underground workings therein, and of all ore bodies therein or appurtenant thereto, and enjoined them and all persons claiming under them from interfering with the receiver's possession of the property.

Voluminous evidence on behalf of the respective parties having been given, the same was by the court referred to a special master, with instructions to make and report findings of fact and conclusions

of law. Upon the coming in of the findings, they were approved by the court (the findings being to the effect that James Larkin, at the time of executing his deed to the Butte & Boston Mining Company for his undivided one-half of the Snohomish and his undivided twothirds of the Tramway claims, had sufficient mental capacity to understand the nature and consequences of the transactions, and that the consideration received by him therefor from that company, to wit, $25,850, was adequate), and the cross-bills of Larkin and the representatives of his estate were dismissed, at their cost. And the findings further showing that the complainant thereafter acquired, and at the time of the commencement of the suit held, the undivided interests thus conveyed to the Butte & Boston Mining Company, and that the defendant F. Augustus Heinze is the owner of the other undivided interests in the claims, and that the property is of such a nature that it cannot be fairly divided between the said tenants in common, the court decreed a sale of the premises, and, after providing for the protection of the rights of other defendants to the suit, and for the payment of the costs of the proceedings, directed the payment of the proceeds to the complainant and the defendant F. Augustus Heinze in accordance with their respective interests, as stated in the findings and established by the decree. From that decree the appeal is brought.

On appellants' behalf it is urged, first, that the court below had no jurisdiction of the suit, for the reason, as contended, that it is not alleged in the bill that the complainant was in possession of the property sought to be partitioned at the time of the commencement of the suit; second, that the court below was without jurisdiction, because of a denial of the complainant's alleged title; third, that the decree appealed from is erroneous, in that it is against the evidence. and the rights of the appellants; fourth, that the order appointing the receiver was erroneous, and beyond the power of the court to make; fifth, that the orders extending the powers of the receiver over the whole of the claims in question were likewise erroneous, and beyond the jurisdiction of the court; sixth, that the order allowing the receiver to enter into the contract with the Boston & Montana Mining Company for the reduction of ores mined by the receiver was beyond the power of the court to make; and, seventh, that the orders of the court below settling the receiver's accounts are erroneous and in excess of its jurisdiction. All these orders, it is contended on behalf of the appellants, may and only can be reviewed on their appeal from the final decree; there being at the time of the making of them no direct appeal therefrom allowed by statute.

The right to a partition of real estate presupposes a common interest in the parties between whom it is sought to have a division made. And to the assertion of such a right in a court of equity it has always been essential for the bill to show a present right of possession in the complainant, as well as title. Adams v. Iron Co., 24 Conn. 230; Florence v. Hopkins, 46 N. Y. 182; Clapp v. Bromagham, 9 Cow. 530; Woodworth v. Campbell, 5 Paige, 518; Freeman on Co-Tenancy & Partition, §§ 446, 447; note to case of Nichols v. Nichols, 67 Am. Dec. 703, and the numerous cases there cited. In