I have searched in vain for an authority to sanction a partition in a case of this kind. • «Nevertheless, from a reference to the Bevised Statutes, (2 R. S. 576, § 1,) and from the necessity of the case, I think the plaintiffs are entitled to partition or a sale, under the subsequent sections. The plaintiffs have a certain right in the land on which the ores or minerals are. They have a right of ingress and egress to and from the premises; they have the right to erect buildings and machinery necessary for the raising, working and carrying off the ore, to certain parts of whichgthey are entitled.
The defendant owns the fee of the land it is true, but plaintiffs necessarily-have a certain interest, such as may be necessary for the working and disposition of the ore, in common with the defendant; and I do not well see how they can have any other remedy to enforce their rights or avail themselves of them, if defendant should claim the entire and exclusive possession of the ore bed. Perhaps they might have relief, in equity, or it may be the defendant would be accountable to the plaintiffs for all the ore he raised and worked. But suppose he chose to not work it at all, how are plaintiffs to work it if he claims entire possession ? Or suppose he conveys away the land, and becomes insolvent and unable to account, where is plaintiffs’ security ? I think that partition may be made, or .at all events a sale be effected, and that commissioners must be appointed.
Order accordingly.