Present: All the Justices 

CLAUDIA P. DALY 

v. Record No. 061559 OPINION BY JUSTICE DONALD W. LEMONS 

 June 8, 2007 

CECILLIA M. SHEPHERD 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

LeRoy F. Millette, Jr., Judge 

 In this appeal, we consider whether in the absence of 

exclusion or ouster by an occupying co-tenant of residential 

property, the non-occupying co-tenant is entitled to a ratable 

share of fair rental value in an action for partition. 

I. Facts and Proceedings Below 

 Claudia P. Daly ("Daly") and Cecillia M. Shepherd*

("Shepherd") each owned an undivided one-half interest in a 

townhouse in Prince William County (the "property") as tenants 

in common. From the time of purchase, the property was 

occupied by Shepherd and her son. At the time the property 

was purchased, Daly "talked about moving in." Shepherd 

testified that she bought furniture and "fixed up a bedroom" 

for Daly. According to Shepherd, Daly changed her mind and 

decided not to move into the property. 

 Without notifying Shepherd, Daly moved to another state. 

Shepherd and her son continued to occupy the property. 

 *

 While previously styled Daly v. Sheppard before this 

Court, the correct spelling of the appellee's name is 

Shepherd. 
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Desiring to own the property in its entirety, Shepherd filed a 

partition suit. Shortly after the suit was filed, Daly wrote 

to Shepherd stating that she planned to move into the 

property. Shepherd's counsel then wrote to Daly stating that 

the property was subject to a partition suit. The letter to 

Daly further stated: "[I]f you wish to move into the 

premises, you will need to call my office[] immediately as the 

sale of the . . . property may happen soon." 

 Daly did not move into the property, and the partition 

suit continued. Daly contended in her pleadings that based on 

Shepherd's "sole and exclusive use of the property since the 

parties acquired it," she was entitled to "one-half (1/2) of 

the fair market rental value of the property." Upon referral 

from the circuit court, a commissioner in chancery heard 

evidence in the case. In his report, the commissioner found 

that Shepherd should "not be charged against her interest a 

ratable share of fair rental value of the property due to the 

fact that [Daly], based upon evidence presented, was never 

excluded from co-possession of the property." Both Shepherd 

and Daly filed exceptions to the commissioner's report. The 

trial court overruled Daly's exceptions, confirming the 

commissioner's finding that Daly was not entitled to "any sum 

for the rental value for the tenancy" of Shepherd. However, 

the trial court did confirm the commissioner's finding that 
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Daly was entitled to one-half of the rental payments made by 

Shepherd's son. 

 Daly now appeals to this Court upon one assignment of 

error: "The trial court erred in overruling Daly's exceptions 

to the Commissioner's Report and in entering a final decree 

which did not include an amount in favor of Daly representing 

one-half of the fair rental value of the property as 

compensation for the exclusive tenancy of the co-owner, 

Sheppard [sic]." 

II. Analysis 

The standards of review when a trial court considers 

a report of a commissioner in chancery and when this 

Court reviews the matter on appeal are well-established: 

While the report of a commissioner in chancery 

does not carry the weight of a jury's verdict, 

Code § 8.01-610, it should be sustained unless 

the trial court concludes that the 

commissioner's findings are not supported by 

the evidence. This rule applies with particular 

force to a commissioner's findings of fact 

based upon evidence taken in his presence, but 

is not applicable to pure conclusions of law 

contained in the report. On appeal, a decree 

which approves a commissioner's report will be 

affirmed unless plainly wrong. 

Roberts v. Roberts, 260 Va. 660, 667, 536 S.E.2d 714, 718 

(2000) (quoting Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d 

292, 296-97 (1984) (citations omitted)). 

 Virginia Code § 8.01-31 provides: 
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An accounting in equity may be had against any 

fiduciary or by one joint tenant, tenant in 

common, or coparcener for receiving more than 

comes to his just share or proportion, or 

against the personal representative of any such 

party. 

In Early v. Friend, 57 Va. (16 Gratt.) 21, 49 (1860), we 

interpreted the predecessor statute to Code § 8.01-31 to 

provide that 

whenever the nature of the property is such as 

not to admit of its use and occupation by 

several, and it is used and occupied by one 

only of the tenants in common, or wherever the 

property, though capable of use and occupation 

by several, is yet so used and occupied by one 

as in effect to exclude the others, he receives 

more than comes to his just share or 

proportion, in the meaning of the statute, and 

is accountable to the others. 

Therefore, in deciding whether a co-tenant in a partition suit 

is entitled to a ratable share of the fair rental value of the 

property when one tenant has maintained exclusive occupancy, 

two questions must be answered. First, is the property 

amenable to co-occupation? Here, the answer is "yes." Both 

parties acknowledge that this residential property with 

multiple bedrooms was intended by them to be co-occupied. 

Having established that the property is amenable to cooccupation, the next question is: was there an exclusion or 

ouster of the non-occupying co-tenant? The answer in this 

case is "no." 
5

 Daly relies upon the case of Adkins v. Adkins, 117 Va. 

445, 85 S.E. 490 (1915), in support of her claim for a ratable 

share of fair rental value of the property. In Adkins, the 

co-tenant occupied a farm to the exclusion of other cotenants. He occupied the house as a residence and operated 

the farm on a commercial basis including the harvesting of 

timber and the leasing of a portion of the property. On the 

unique facts of the case, we observed that an understanding 

had been reached by the co-tenants, even if the understanding 

had not been a "formal contract." 

[H]e occupied the place for a considerable period 

as his home, keeping thereon a large amount of 

live stock, raising crops, etc., and throughout 

the remainder of his control had the property in 

the hands of tenants, either for a share of the 

crops or for a money rent, and at no time during 

all the years of his use and control of the 

property did his cotenants ever share with him in 

the crops or other proceeds of the farm. While 

there was no formal contract of renting, the use 

and control of the place by Thomas Adkins seems 

to have been acquiesced in by his brother and 

sisters upon the idea that the place had to be 

managed and that they could safely trust its 

management to him. While there never was any 

ouster of his cotenants, the use and enjoyment by 

the complainant was exclusive in the sense that 

it was never interfered with by his brother or 

sisters during the period of his control. The 

facts and circumstances of the case present a 

situation where the tenant in common occupying 

the premises to the exclusion of his cotenants is 

accountable for receiving more than his just 

share or proportion. 

Id. at 447-48, 85 S.E. at 491. 
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In this case, the evidence shows that Daly was able to 

move into the property, had planned to move in, and then chose 

not to do so. The commissioner was correct in finding that 

the property was capable of co-occupation, and because Daly 

was never excluded or ousted from co-occupation of the 

property, she was not entitled to a ratable share of the fair 

rental value from Shepherd. However, as in Adkins, Shepherd 

did receive more than her "just share or proportion" of rental 

payments made by a non-owner occupant, namely Shepherd's son. 

The commissioner was correct in finding that one-half of the 

rental payments were properly credited to Daly. The trial 

court did not err in confirming the commissioner's report. 

III. Conclusion 

 For the reasons stated, the judgment of the trial court 

will be affirmed. 

Affirmed.