sance, does not authorize it to declare an existing thing to be a nuisance, which is in fact not a nuisance. City of Evansville v. Miller, 146 Ind. 613 (45 N. E. Rep. 1054; 38 L. R. A. 161). Smoke is not a nuisance, per se, and a municipal ordinance declaring "the emission into the open air of dense black or thick gray smoke, within the corporate limits of the city," to be a nuisance, exceeds the statutory authority of such city, "to declare, prevent, and abate nuisances on public or private property and the causes thereof." City of St. Louis v. Heitzeberg Pack. & Prov. Co., 141 Mo. 375 (42 S. W. Rep. 954; 64 Am. St. Rep. 516; 39 L. R. A. 551). See opinion for review of authorities on this subject. An ordinance which prohibits as a nuisance, the erection or use of "any awning, except the same be upon a suitable frame, and attached entirely to the building, which awning shall not, when extended, be less than six feet from the sidewalk," is void for uncertainty where it contains no provision for determining what would be a suitable" frame. State v. Clarke, 69 Conn. 371 (37 Atl. Rep. 975; 61 Am. St. Rep. 45; 39 L. R. A. 670). A city is not liable for injuries to private persons resulting from a failure to enforce its police regulations which provide for the prevention and abatement of nuisances. Butz v. Cavanaugh, 137 Mo. 503 (38 S. W. Rep. 1104; 59 Am. St. Rep. 504). Mass. Stat. 1890, ch. 59, construed and applied-filling of low land by a city to abate a nuisance-assessment of expense to landownernotice. City of Lawrence v. Webster, 167 Mass. 513 (46 N. E. Rep. 123).

66

Sec. 665. Acquiring right to maintain public nuisance by prescription. The right to maintain a public nuisance cannot be acquired by prescription. Nolan v. City of New Britain, 69 Conn. 668 (38 Atl. Rep. 703). The court say: "No length of time can legitimate or enable a party to prescribe for a public nuisance, People v. Cunningham, 1 Denio, 524 (43 Am. Dec. 709); Mills v. Hall, 9 Wend. 315; Veazie v. Dwinel, 50 Me. 479, 490; Com. v. Upton, 6 Gray 476; Wood, Nuis. 722; 19 Am. & En. Enc. Law, 30. When an action is brought by a party who has suffered a special injury in consequence of a public nuisance, a prescriptive right to do

the acts complained of cannot be maintained against him. Bowen v. Wendt, 103 Cal. 236 (37 Pac. Rep. 149); People v. Gold Run Ditch & Min. Co., 66 Cal. 138 (4 Pac. Rep. 1152; 56 Am. Rep. 80); Boston Rolling Mills v. City of Cambridge, 117 Mass. 396; O'Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163); Cooley, Torts 614."

PARTITION.

EPITOME OF CASES.

Sec. 666. Agreements in respect to partition. The absolute right to have partition may be waived by agreement. Martin v. Martin, 170 Ill. 639 (48 N. E. Rep. 924; 62 Am. St. Rep. 411). Prior to Va. Code 1887, § 2413, partition of land could be made by parol as well as by deed, as at common law; and in making such partition if one or more of the parceners were females, and married, their husbands could make partition between them, which would be binding during the lives of their husbands and afterwards, unless after the death of the husband the wife or her heir could show that the part received by her husband in the partition was less in value than the part received by the other parcener. Brooks v. Hubble, Va. (27 S. E. Rep. 585). In West Virginia it is held that where a wife acquires by inheritance an interest in land as a tenant in common with others, in which her husband is entitled to curtesy by reason of issue of the marriage, he can make a valid partition of the land with the other cotenants either by parol or written agreement; but a deed executed by him and his wife in pursuance of such partition, which on account of a defective acknowledgment is void as to the wife, conveys only the life estate of the husband. Arnold v. Bunnell, 42 W. Va. 473 (26 S. E. Rep. 359). Tenants in common may make a parol partition of the surface of the land, leaving the minerals beneath in common; but an agreement of partition will be presumed to include both the surface and minerals, and one who asserts the contrary has the burden of proof. Byers v. Byers, 183 Pa. St. 509 (38 Atl. Rep. 1027;

63 Am. St. Rep. 765; 39 L. R. A. 537). As to separating surface and mineral ownership by partition, see Ballards' Law Real Prop., Vol. V, § 621.

Sec. 667. Who may have partition. In Missouri it is held that one claiming as a cotenant with parties who have ousted him and hold adversely at the time he brings his action for partition, cannot maintain the action, but he must resort to an action of ejectment in order to settle the question of title. Hutson v. Hutson, 139 Mo. 229 (40 S. W. Rep. 886). But after having established his title in an action of ejectment, he may maintain an action for partition against the person or persons in possession. Estes v. Nell, 140 Mo. 639 (41 S. W. Rep. 940). It is held by a divided court that partition of land will not be delayed until the establishment, on an accounting in a pending suit in equity, of the amount of a possible lien in favor of one of the co-owners upon the shares of the others. Such lien will attach to the divided shares, and rights acquired pendente lite will be subject thereto. Pomeroy v. Pomeroy, 55 N. J. Eq. 568 (37 Atl. Rep. 754). Where lands have been purchased by a partnership for development and sale, one of the partners cannot interfere with the venture by enforcing partition before the scheme of the partnership is carried out or shown to be impracticable. Craighead v. Pike, N. J. Eq. (38 Atl. Rep. 296). Under Mo. Rev. Stat. 1889, § 7143, land descending to heirs may be partitioned before final settlement of the estate to whose demands the land may then be subject. Chrisman v. Divinia, 141 Mo. 122 (41 S. W. Rep. 920). Applying Mill. & V. Tenn. Code, § 4003, 4022, it is held that defeasible estates, contingent remainders, or mere expectancies under an executory devise, cannot be partitioned. Muldoom v. Trewhitt, Tenn.

(38 S. W. Rep. 109). The fact that lands are subject to an easement in favor of a third person, is no bar to an action to partition them. Crocker v. Cotting, 170 Mass. 68 (48 N. E. Rep. 1023; 64 Am. St. Rep. 278; 39 L. R. A. 215). Where the right of a plaintiff in partition to have half of the estate set off to him in severalty is undisputed, he is entitled to a decree although there may be a dispute among the

defendants as to the title to the other half. Egner v. Meis., N. J. Eq. (36 Atl. Rep. 943).

Sec. 668. Nature of right to partition-Partition of leased premises. Where a case is fairly within the law authorizing a partition, the right to partition is imperative,. and absolutely binding upon courts of equity. In such a case the right of partition is a matter of right, and not of mere grace. The mere fact that inconvenience or difficulty of making distribution, or even probable loss, is involved in making partition, in no wise affects the absolute right to have partition. Where real property leased for a term of years is owned by several persons as tenants in common, both of the rents and the reversion, partition upon the petition of one of the tenants in common may be had, and, in case of a sale being thereby rendered necessary, the lessee will become a tenant of the purchaser of the rents and reversion. Oliver v. Lansing, 50 Neb. 828 (70 N. W. Rep. 369).

*

Sec. 669. Partition of buildings standing on land owned in severalty. Construing Ill. Rev. Stat., ch. 106, § 1, which provides " that when land, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, * any one or more of the persons interested therein may compel a partition thereof by bill in chancery," it is held that partition cannot be had of a building standing upon two adjoining pieces of land,each of which are owned in severalty by different persons, since each owner is regarded as the owner in severalty of that part of the building which stands on his land. Stevenson v. Bachrach, 170 Ill. 253 (48 N. E. Rep. 327). The court say: "In Mc Connel v. Kibbe, 43 Ill. 12, we held that an estate must be held jointly,in common,or in coparcenary,in order to be the subject of partition under our statute, and that premises belonging in severalty to two, and no portion thereof belonging jointly to both, are not subject to partition under our statute, or under any proceeding known in courts of equity."

Sec. 670. Sufficiency of complaint or petitionProof required of plaintiff. A complaint which alleges that

the plaintiff and the defendants are the only children and heirs at law of one who died intestate seised and possessed of the real estate in question, sufficiently shows the rights of the parties to the land. Martin v. Martin, 95 Va. 26 (27 S. E. Rep. 810). Under Ala. Code 1886, § 3239, a bill for partition is insufficient where it does not set forth " a full and accurate description of the property sought to be divided or partitioned." Stein v. McGrath, 116 Ala. 593 (22 So. Rep. 861). Applying Md. Code, Art. 16, § 116, authorizing a partition by sale, where it appears that the division cannot be made "without a loss or injury" a complaint alleging that a "partition or division of the property cannot be made without a sale, owing to the nature of the property and the number of the tenants in common," is sufficient to give the court jurisdiction to order a sale, as against infant cotenants. Ballantyne v. Rusk, 84 Md. 649 (36 Atl. Rep. 361). Where a defendant's only adverse claim is for improvements put upon the land and the plaintiff has a complete record title, he will not be required to establish his title at law before asking for partition, and where such a plaintiff shows that he acquired his title by purchase and payment therefor, the burden is upon the defendant to show some notice of his equitable rights prior to the purchase. Hooper v. De Vries, 115 Mich. 231 (73 N. W. Rep. 132). The plaintiff's proof of title is insufficient where his chain of title shows a conveyance from the widow of one former grantee and from the heirs of another former grantee, there being no evidence to show their authority for making such conveyance; and proof of such authority is not dispensed with by the defendant's admission that the plaintiff is seised of the interest, if any, owned by the grantee whose heirs pretend to convey, where the fact of such grantee having any interest is in issue. Wood v. Brown, 104 Ia. 124 (73 N. W. Rep. 608). Particular complaint held sufficient. Sullivan v. Lumsden, 118 Cal. 664 (50 Pac. Rep. 777). Particular supplemental petition in an action for partition, held not to set up a new cause of action. Leach v. Germania Bldg. Ass'n, 102 Ia. 125 (70 N. W. Rep. 1090). Ia. Code, §§ 3278, 3279, construed and applied-sufficiency of petition-amendment. Darr v. Darr, 102 Ia. 453 (71 N. W. Rep. 419).