Miller v. Miller

30 Mass. 237

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1832
• Status: Published

Opinion

Per Curiam.

We do not deem it necessary to go into a consideration of the broad question raised in the argument, whether the property described in the petition is of such a nature as to be incapable of being divided by metes and bounds. A grant of the mill is as much a grant of the soil under the mill, as a grant of the dam is a grant of the soil under the dam; and we decide the case on the ground, that the mill, dam, log-ways, water privilege, and appurtenances, constitute one entire tenement or holding of a freehold estate, and therefore the petition, being for partition of the dam and water alone, cannot be sustained. It is a well-settled rule of law, that a tenant in common cannot enforce partition of a part of the common tenement by metes and bounds. If one of the tenants in common could have partition of the dam alone, it would put the mill in the power of one, and would tend to the destruction of the estate.

Petition dismissed.