By the Court, Potter, J.
The only real question to be decided in this case is, whether the parties to this action have such an estate or interest in the lands in question, as is susceptible of partition by action ?
It is conceded that Jonathan Fuller was the original source of'title, and that he owned the entire estate in fee simple, in quantity and quality, and that the conveyance from him to the defendant, and from the defendant Ford to Canfield, and from Canfield to Chapman, in form and covenants, are alike. It is therefore sufficient to set forth one of these conveyances. On the 6th ¡November, 1847, Fuller and his wife conveyed by ' deed to Chillion Ford the defendant “ and to his heirs and assigns forever, all the mines, ores, minerals and metals, lying or being in, or upon the lands of the parties of the first part, situate, lying and being in the town of Depeyster, in the county of St. Lawrence, [describing three parcels of land,] together with the right to raise, work, and carry away said mines, ores, minerals and metals. And the right to put up all buildings, and to use all lands that may be necessary for the purposes aforesaid. And the right of ingress and egress thereto, and therefrom, for the purpose of raising, digging and working and carrying away said mines, ores, minerals and metals as aforesaid. And all the estate, right, title, interest, claim and demand whatsoever of the parties of the first part of, in and to the above granted mines, ores, minerals and metals. To have and to hold the above mentioned and described mines, ores, minerals and metals, to the said party of the second part, his heirs and assigns foreverwith a covenant [338]*338to warrant and defend the same, in the usual form of a deed of warranty.
The revised statutes provide, that when several persons shall hold and he in possession of any lands, tenements or hereditaments, as joint tenants, or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of such persons being of full age, may apply to the court for a division or partition of such premises, according to the rights of the respective parties interested therein, and for sale of such premises, if it shall appear that a partition cannot be made without great prejudice to the owners. Is the interest in question such an interest as comes within the meaning and intent of this statute ? Either of the terms employed in this statute would seem to include the estate of the parties in this action. “ Land,” in its most general sense, comprehends any ground, soil or earth, whatsoever, as meadow, pastures, woods, moors, waters, marshes, furzes and heaths. (Co. Litt. 4 a.) It includes all things of a permanent and substantial nature; not only the face of the earth, but every thing under it or over it. (2 Bl. Com. 18.) “ Cujus est solum ejus est usque ad ccelum, et ad inferos.” Tenements is a word of greater meaning and extent, sometimes, than land, and includes not only land, but rents, commons, and several other rights and interests issuing out of or concerning land. (1 Steph. Com. 158, 9.) “ Hereditaments” is a still more comprehensive term in law, and includes whatever may be inherited, corporeal or incorporeal. (2 Bl. Com. 17.) These terms, therefore, seem to be compre- / hensive enough to include the estate in question. I think there can be no doubt that the estate in question is an estate of inheritance. It is so by the veiy terms and forms of the grant. The difficulty suggested upon the argument was, how to describe this estate, so carved out of the whole fee. If it is an estate that can be partitioned, the precise description is not very material, nor is the question as to what would be the rights of the parties after partition, at all neces[339]*339sary to be discussed here. The latter question does not arise in this review. The counsel for the defendant has argued, with great force, that the right or interest which was conveyed as above stated is not a fee simple. In this, I think, he is mistaken upon authority. (2 R. S. 722, § 2.) It is not, however, necessary that it should be a fee simple, to entitle to partition. Whatever estate it may be, the owner has such an interest in it that he can maintain trespass quare clausum fregit for any wrong done to it. (Worcester v. Green, 2 Pick. 429.) True, Lord Coke says, “an inheritance in fee simple expresses the largest estate that a man can have in land.” But Littleton says, “ This doth extend as well to all fee simples conditional and qualified, as to fee simples pure and absolute, for our author speaketh here of the ampleness and greatness of the estate, and not of the perdurableness of the same, and he that hath a fee simple qualified hath as ample and great an estate, as he that hath a fee simple absolute. So as the diversity appeáreth between the quantity and the quality of the estate.” (Littleton, 18 a.) And so also Plowden says, “ that two fees simple absolute, cannot be at the same time of one and the self same land." (Plowd. 349.) That is, the mines, ores and minerals being land, a man may have a fee simple in them as well as he who holds the soil that remains unconveyed may have a fee simple, for they are not the self same land. A man may have a fee simple not only in lands, but also in advowsons, common, estovers, and other incorporeal hereditaments. So if a man grants to another all woods, underwoods, timber trees, or others, saving the soil, the grantee has a fee to take in “ alieno solo.” (Crabbe on Real Property, § 964.) The estate so partitioned, therefore, is an estate of inheritance, a fee simple. It is limited in" quantity, not in quality. It is carved out of a fee simple absolute, and the latter having lost this quantity of estate, is itself qualified to that extent, without losing its quality of a fee simple. The estate in controversy, I think, may also be classified among estates, as a “ corporeal hereditament;” and [340]*340comes within the definition of that estate, to wit, “ Such hereditaments as are of a material and tangible nature, such as may be perceived by the senses, consisting wholly of substantial and permanent objects, and may be comprehended under the general denomination of lands only.” (Steph. Com. 159. Bouv. Dict. 288.)
The class of cases referred to by the learned counsel for the defendant, which may not be partitioned, are cases of mere license, or authority to enter upon another’s land, and to do a particular act, or series of acts, without possessing any estate in the land. Such interests, it is true, cannot be partitioned. ' This class of cases is nearly allied to, and very often confounded with, a still superior interest in real property, called an easement, which is described as “ a liberty, privilege or advantage in land, existing distinct from an ownership in the soil, and is founded on a grant by deed, or writing, or upon prescription, which supposes one, being a permanent interest in another’s land, without profit, with a right at all times to enter and enjoy it.” (3 Kent’s Com. 452.) Such an interest, possibly, may not be partitioned. The distinction between the two classes of cases last above mentioned, and that of a permanent grant
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By the Court, Potter, J.
The only real question to be decided in this case is, whether the parties to this action have such an estate or interest in the lands in question, as is susceptible of partition by action ?
It is conceded that Jonathan Fuller was the original source of'title, and that he owned the entire estate in fee simple, in quantity and quality, and that the conveyance from him to the defendant, and from the defendant Ford to Canfield, and from Canfield to Chapman, in form and covenants, are alike. It is therefore sufficient to set forth one of these conveyances. On the 6th ¡November, 1847, Fuller and his wife conveyed by ' deed to Chillion Ford the defendant “ and to his heirs and assigns forever, all the mines, ores, minerals and metals, lying or being in, or upon the lands of the parties of the first part, situate, lying and being in the town of Depeyster, in the county of St. Lawrence, [describing three parcels of land,] together with the right to raise, work, and carry away said mines, ores, minerals and metals. And the right to put up all buildings, and to use all lands that may be necessary for the purposes aforesaid. And the right of ingress and egress thereto, and therefrom, for the purpose of raising, digging and working and carrying away said mines, ores, minerals and metals as aforesaid. And all the estate, right, title, interest, claim and demand whatsoever of the parties of the first part of, in and to the above granted mines, ores, minerals and metals. To have and to hold the above mentioned and described mines, ores, minerals and metals, to the said party of the second part, his heirs and assigns foreverwith a covenant [338]*338to warrant and defend the same, in the usual form of a deed of warranty.
The revised statutes provide, that when several persons shall hold and he in possession of any lands, tenements or hereditaments, as joint tenants, or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of such persons being of full age, may apply to the court for a division or partition of such premises, according to the rights of the respective parties interested therein, and for sale of such premises, if it shall appear that a partition cannot be made without great prejudice to the owners. Is the interest in question such an interest as comes within the meaning and intent of this statute ? Either of the terms employed in this statute would seem to include the estate of the parties in this action. “ Land,” in its most general sense, comprehends any ground, soil or earth, whatsoever, as meadow, pastures, woods, moors, waters, marshes, furzes and heaths. (Co. Litt. 4 a.) It includes all things of a permanent and substantial nature; not only the face of the earth, but every thing under it or over it. (2 Bl. Com. 18.) “ Cujus est solum ejus est usque ad ccelum, et ad inferos.” Tenements is a word of greater meaning and extent, sometimes, than land, and includes not only land, but rents, commons, and several other rights and interests issuing out of or concerning land. (1 Steph. Com. 158, 9.) “ Hereditaments” is a still more comprehensive term in law, and includes whatever may be inherited, corporeal or incorporeal. (2 Bl. Com. 17.) These terms, therefore, seem to be compre- / hensive enough to include the estate in question. I think there can be no doubt that the estate in question is an estate of inheritance. It is so by the veiy terms and forms of the grant. The difficulty suggested upon the argument was, how to describe this estate, so carved out of the whole fee. If it is an estate that can be partitioned, the precise description is not very material, nor is the question as to what would be the rights of the parties after partition, at all neces[339]*339sary to be discussed here. The latter question does not arise in this review. The counsel for the defendant has argued, with great force, that the right or interest which was conveyed as above stated is not a fee simple. In this, I think, he is mistaken upon authority. (2 R. S. 722, § 2.) It is not, however, necessary that it should be a fee simple, to entitle to partition. Whatever estate it may be, the owner has such an interest in it that he can maintain trespass quare clausum fregit for any wrong done to it. (Worcester v. Green, 2 Pick. 429.) True, Lord Coke says, “an inheritance in fee simple expresses the largest estate that a man can have in land.” But Littleton says, “ This doth extend as well to all fee simples conditional and qualified, as to fee simples pure and absolute, for our author speaketh here of the ampleness and greatness of the estate, and not of the perdurableness of the same, and he that hath a fee simple qualified hath as ample and great an estate, as he that hath a fee simple absolute. So as the diversity appeáreth between the quantity and the quality of the estate.” (Littleton, 18 a.) And so also Plowden says, “ that two fees simple absolute, cannot be at the same time of one and the self same land." (Plowd. 349.) That is, the mines, ores and minerals being land, a man may have a fee simple in them as well as he who holds the soil that remains unconveyed may have a fee simple, for they are not the self same land. A man may have a fee simple not only in lands, but also in advowsons, common, estovers, and other incorporeal hereditaments. So if a man grants to another all woods, underwoods, timber trees, or others, saving the soil, the grantee has a fee to take in “ alieno solo.” (Crabbe on Real Property, § 964.) The estate so partitioned, therefore, is an estate of inheritance, a fee simple. It is limited in" quantity, not in quality. It is carved out of a fee simple absolute, and the latter having lost this quantity of estate, is itself qualified to that extent, without losing its quality of a fee simple. The estate in controversy, I think, may also be classified among estates, as a “ corporeal hereditament;” and [340]*340comes within the definition of that estate, to wit, “ Such hereditaments as are of a material and tangible nature, such as may be perceived by the senses, consisting wholly of substantial and permanent objects, and may be comprehended under the general denomination of lands only.” (Steph. Com. 159. Bouv. Dict. 288.)
The class of cases referred to by the learned counsel for the defendant, which may not be partitioned, are cases of mere license, or authority to enter upon another’s land, and to do a particular act, or series of acts, without possessing any estate in the land. Such interests, it is true, cannot be partitioned. ' This class of cases is nearly allied to, and very often confounded with, a still superior interest in real property, called an easement, which is described as “ a liberty, privilege or advantage in land, existing distinct from an ownership in the soil, and is founded on a grant by deed, or writing, or upon prescription, which supposes one, being a permanent interest in another’s land, without profit, with a right at all times to enter and enjoy it.” (3 Kent’s Com. 452.) Such an interest, possibly, may not be partitioned. The distinction between the two classes of cases last above mentioned, and that of a permanent grant for a good consideration, of an interest in lands to be used for profit, to a man,' and to his heirs and assigns forever, is palpable. There is still another distinction found in the old law books,-existing in regard to estates of inheritance. Entire estates of inheritance not divisible, and estates that are divisible, and yet shall not be parted or divided between coparceners. Among the examples given of them, is found the following. If a man have reasonable estovers, as housebote,' haybote, &c. appendant to his freehold, they are so entire, as they shall not be divided between coparceners.” (Co. 164 b.) “ So too of a pischarie incertaine, or a commons sauns nombre, or of a corody incertaine.” (Id.) Another instance cited by Littleton, of estates that shall not be partitioned, is this: Lord Mountjoy, being seised of the manor of C. did by deed indented and enrolled, bargain and [341]*341sell the same to one Browne in fee, in which indenture was contained a clause on the part of Browne, amounting to a grant by him of an interest and inheritance to Lord Mountjoy, his heirs and assigns, to dig for ore in the lands, (which were a great waste,) parcel of the said manor, and to dig for turf, also for the making of alum. In this case three points were resolved upon by all the judges, viz: First. That this conveyance did amount to a grant of an interest and inheritance to Lord Mountjoy, to dig, &c. Second. That notwithstanding this grant, Browne and his heirs and assigns might dig also, and like to a case of common “ sauns nombre.” Thirdly. That the Lord Mountjoy might assign his whole interest to one, two or more, but then if there be two or more, they could make no division of it, but work together with one stock. (Co. Lit. 164 b.)
It will be seen that the reason given by the judges, why partition could not be made in the case above cited, does not at all apply to the case in question. First, the exclusive right or all the right to mines, ores, &c. was not granted in that case, but a mere right or permission to dig &c., the grantor and his assigns might also dig; and second, the extent of the grant being uncertain, the grantee might surcharge, to the injury of the tenant of the land. Interests uncertain in their extent, could never be partitioned. In the case now in question, the tenant would be bound to take the estate, subject to the terms of the conveyance, granting the exclusive right to all the mines &c., and of the right to put up all buildings, and use all lands that may be necessary for the purposes expressed, and the right of ingress and egress thereto and therefrom. The terms of the grant, by construction, being taken most strongly against, the grantor, and the whole interest in the mines &c. being conveyed, it is immaterial to the grantor whether one person with fifty or more laborers, or fifty or more persons singly, should dig thereon, provided they use no more of the land than is necessary for the pur[342]*342pose of digging &c. all the mines, ores, &c. This is a certain grant, and no difficulty occurs in making equality of division.
[Franklin General Term,
September 14, 1858.
C. L. Allen, James, Rosekrams and Patter, Justices.]
But if the provisions of our revised statutes are not broad enough to include the power to partition, it has been settled that this court, as now constituted, has common law jurisdiction to partition real estate; (Story’s Eq. Jur. §§ 646, 658. Smith v. Smith, 10 Paige, 470;) limited however to the power to divide estates certain. It is only necessary in a court of equity, to entitle to partition, so far as this point is in question, to show that equality can be obtained, in value, of lands; especially in advantages and profits redounding from each share to the several owners. (Allnat on Part. 10.) Whatever is capable of being divided may be the subject of partition in equity. (Id. 84.) The only remaining question raised in the case is, whether the owner of the fee qualified in quantity, out of which the estate in question was carved, ought not to be made a party to the action. The statute (2 R. S. 318, § 5,) requires that the petition (complaint) shall set forth the rights and titles of all persons interested therein, &c. What interest can Fuller, the grantor of this estate, have in the estate, which by deed he has conveyed away ? In the estate sought to be partitioned he has no interest whatever. The partition in no respect affects the title of Fuller. He is not a tenant in common with the parties to the suit. They own separate portions of the estate, in severalty.
I think the judgment must be affirmed.
Judgment affirmed.