Snyder v. Murdock et al. the same in the same manner as they otherwise would have been to such heirs, legatees or devisees.' The provisions of this section extend to the distribution as well as to the partition which is provided in that chapter, and render the decree as conclusive upon those to whom the heirs have conveyed the estate as it 'otherwise would have been upon such heirs, legatees or devisees;' and the decree is equally conclusive whether the estate is distributed to the persons in segregated parts or in undivided proportions." It should be noted that section 1678, Code Civ. Proc. Cal., is the same as section 3961, Rev. Stat. 1898 Utah. It was decided in Chever v. Ching Hong Poy (Cal.), 22 Pac. 1081, where the estate was distributed to the heir, and he had previously conveyed, that he was estopped by reason of his deed of conveyance from disputing the title of his grantee. In the case at bar the question does not arise between grantor and grantee, but between alleged grantees of the same grantors. In re Vaughn's Estate (Cal.), 28 Pac. 221, it was held that the grantee of the heirs was entitled, under section 1678, to have the estate distributed to him. If it be the duty of the court to distribute to the grantee of an heir, legatee, or devisee the share in the estate held by him by assignment, such decree should be given some effect against not only the heir, legatee, and devisee, but also as against their grantees. Such grantees are al! before the court upon constructive notice, in the same manner as heirs, creditors, and other persons interested in the estate. The distinction should also be noted between an adjudication of claims among heirs and their grantees, and claims which dispute the title of the estate itself. Of the latter are such cases as In re Singleton's Estate (Nev. 1901), 64 Pac. 513, and the authorities there cited, in which the court of probate is denied "jurisdiction to adjudicate disputed rights against the estate." At an early day in California, the Supreme Court of that State, in passing upon section 264 of the probate Snyder v. Murdock et al. act, which was substantially the same as our section 3961, except that the word "shall" was used where our statute uses the word "must," said: "It was evidently the design of this section to place the alienee of the interest upon the same footing as the original heir or devisee; and we can see no reason for confining the power to the first alienee, nor to an alienee, receiving a conveyance immediately from the heir or devisee. The statute should receive a liberal construction in favor of the remedy and to carry out the clear policy of the act; and, if we were to give it the restricted meaning insisted on, great practical inconvenience would result. Parties holding by descent, judicial sales, or devise would be excluded, and also those claiming through sales by vendees of the heir. The expenses would be greatly increased without corresponding benefit, and the distribution of estates be greatly retarded and embarrassed. We see no evils likely to result from giving the statute the broader construction, which places the real owner of the real estate in the situation of the heir or devisee, for the purpose of the partition of the property." Estate of De Castro v. Barry, 18 Cal. 97. While the case of Freeman v. Rahm, 58 Cal. 111, supporting the same doctrine, seems to be criticised in Chever v. Ching Hong Poy, supra, it is approved in the later case of Crew v. Pratt, 119 Cal. 149, 51 Pac. 42. It is not necessary to consider the other questions discussed by counsel. The judgment of the lower court is affirmed, with costs. BASKIN, C. J., and BARTCH, J., concur. Ryan et al. v. Egan et al. PATRICK RYAN, ELIZABETH RYAN and WILLIAM J. FRIDAY, Respondents, v. TIMOTHY EGAN and JANE DOE EGAN, His Wife, Appellants. No. 1439. (72 Pac. 933.) Mines and Mining: Partition: Mining Claims: Metes and Bounds. Revised Statutes, section 3522, provides for the partition of real property, and for a sale "of such property or part thereof if it appears that a partition can not be made without great prejudice to the co-owners." Section 3533 provides: "If it is alleged in the complaint and established by evidence to the satisfaction of the court that the property or any part thereof is so situated that the partition can not be made without great prejudice to the owners, the court may order a sale thereof; otherwise on the requisite proofs being made, it must order a partition according to the respective rights of the parties. . . ." It appeared that a mining claim contained no known veins or bodies of ore, had no fixed or market value, and that the only thing giving it value was its locality and close proximity to other mines. The evidence did not show but that the ground within the boundaries of the claim was all of equal value, or that a partition by metes and bounds would result in great prejudice to any of the co-owners. Held, susceptible of partition by metes and bounds. (Decided July 1, 1903.) Appeal from the Third District Court, Summit County. -Hon. C. W. Morse, Judge. Action for the partition of an undeveloped mining claim. From a judgment in favor of the plaintiffs, the defendants appealed. REVERSED. 26 Utah 16 Ryan et al. v. Egan et al. Charles Baldwin, Esq., and J. E. Frick, Esq., for appellants. Frederick T. McGurrin, Esq., and Messrs. Brown & Henderson for respondents. STATEMENT OF FACTS. This is an action for the partition of an undeveloped mining claim, of which the plaintiffs jointly owned fivesevenths and the defendants two-sevenths. The plaintiffs in their complaint in substance allege that they and the defendants are unable to agree among themselves as to the working and developing of the claim and are unable to agree upon a partition thereof, that the mining claim is so situated that an actual partition could not be had without great loss and prejudice to the co-owners, and for the protection of their rights it is necessary that a sale be had of the property. The answer of defendants is a general denial of the material allegations of the complaint. The record shows that the mining claim in question is 1,500 feet in length by 600 feet in width. No ore has been taken from the mine, and, if there is any existing in it, its whereabouts or locality is unknown. Mr. Ryan, one of the plaintiffs, testified in substance that he does not think it possible for the mining claim to be equitably divided, so as to set off twosevenths to defendant Egan and five-sevenths to the plaintiffs, for the reason that there is no vein showing mineral visible on the surface, and none known to exist anywhere within the boundaries of the claim; that "it is a common thing for miners to sell so many feet;" that he himself has sold a portion of a mining claim by metes and bounds, but has never known an undeveloped claim, where the vein was not exposed, to be divided in that way; that it is a hard matter to set a price on the property; that what gives it value is its Ryan et al. v. Egan et al. close proximity to other property. Mr. Egan, the defendant, testified that his business is mining, and that he has been so engaged for about twelve years; that he is reasonably familiar with mines and mining claims; that it is quite usual for miners to sell fractional parts of claims by metes and bounds; and that he does not know why this claim could not be partitioned and divided. The foregoing is in substance the evidence adduced on the main issue in the case. The court made its findings, which, so far as material here, are as follows: (1) That said premises described in the complaint cannot be divided by metes and bounds; (2) that the parties are unable to agree upon any division; (3) that the only equitable division that can be made of the said premises is to order a sale of the whole thereof. A decree was entered, in accordance with the findings, directing that the property be sold, from which decree the defendants appeal. MCCARTY, J., after stating the facts, delivered the opinion of the court. There is only one question raised on this appeal, and that is whether, under the showing made in the trial court, a partition of the mining claim in question should be made by dividing it among the co-owners, or whether it should be sold and the proceeds divided. It is a wellsettled rule of law that any person who, jointly with others, owns a piece of real property, has an inherent right to have the property partitioned and his interest set apart to him, so that he may become the sole owner of a separate, distinct, and segregated parcel of such property. Freeman, Co-Tenancy and Par., 433. This right is based upon fundamental principles, and cannot be denied, except in cases where the property, from its very nature or condition, is not susceptible of partition by metes and bounds without resulting in great prejudice to one or more of the co-owners, in which event a partition will be denied, and a sale of the property |