No. 80-294 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

PATRICIA A. FRY, 

Plaintiff and Appellant, 

ALFRED E. HEBLE, CAROL J. HEBLE, 

FEDERAL LAND BANK OF SPOKANE, 

Defendants and Respondents. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the County of Fergus, The Honorable 

M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

D. Frank Kawe, Red Lodge, Montana 

For Respondent: 

Moulton, Bellingham, Longo & Mather, Billings, 

Montana 

Charles F. Marris, Roundup, Montana 

Submitted on Briefs: January 14, 1981 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiff Patricia Fry appeals from a judgment of the 

Tenth Judicial District Court, Fergus County. Following a 

nonjury trial, the District Court made findings of fact and 

concluded that defendants Alfred and Carol Heble had not 

wrongfully held over on property once owned by plaintiff. 

The court further held that defendants owed plaintiff $1,840 

equal to the agricultural rents and profits earned from the 

property offset by land improvements paid by defendants. 

The sole issue presented by this appeal is whether the 

District Court erred by refusing to allow plaintiff to plead 

and prove an unlawful detainer action against defendants. 

We find no error in the District Court proceedings and affirm 

the judgment of the court. 

In 1967, plaintiff and her sister leased farmland they 

owned as tenants-in-common to defendants for a six-year 

period. In 1973, shortly before expiration of this lease, 

the sister conveyed her interest in the farmland to defendants. 

Under this conveyance, plaintiff and defendants became 

owners of the farm property as tenants-in-common, each 

vested with an undivided one-half interest in the property 

at the time the lease expired. 

After the lease expired, defendants continued to farm 

the property although plaintiff did not renew the lease of 

her interest in the property. Plaintiff brought this action 

in 1974, asking the District Court to partition the property 

and order the defendants to make an accounting of rents and 

profits earned from the use of the property. 

The trial of this action was delayed until 1980 and by 

the time of trial, only the accounting issue remained before 

the District Court. In 1977, the defendants purchased 
plaintiff's interest in a bank foreclosure sale and became 

sole owners of the farm property. The plaintiff, however, 

attempted to amend her complaint and add an additional issue 

of unlawful detainer to her accounting claim. Plaintiff 

believed that the use of the property by defendants following 

the expiration of the six-year lease constituted an unlawful 

infringement of her former interest in the property. The 

court denied plaintiff's motion to add this claim by amending her complaint, concluding that the claim was inapplicable 

to the case in this appeal. Plaintiff contends the court 

erred by refusing the amendment, thereby limiting the trial 

to the amount of rents and profits defendants owed plaintiff 

for the period the property was owned by both parties as 

tenants-in-common. 

Rule 15(a), M.R.Civ.P., provides that a party may amend 

his complaint three years after the filing of the original 

complaint ". . . only by leave of court or by written consent 

of the adverse party; and leave shall be freely given when 

justice so requires. . ." This rule allows for liberal 

amendment of pleadings, but does not mean that amendments 

should be allowed in all instances. See, 6 Wright and 

Miller, - Federal Practice and Procedure § 1487, at 427. Amendments to pleadings requiring leave of court shall be disallowed 

where the theory presented by the amendment is totally 

inapplicable to the case. McGuire v. Nelson (1973), 162 

Mont. 37, 508 P.2d 558. 

In the instant case, a claim of unlawful detainer by 

one cotenant against another cotenant cannot be maintained, 

and an amendment to include such a claim in a complaint is 

properly denied by the court. A tenant-in-common is an 
owner of an undivided interest in property. Section 70-1- 

306, MCA. A claim of unlawful detainer may only be asserted 

against a tenant for a term less than life. Section 70-27- 

108, MCA. 

A tenant-in-common may bring a damage action against a 

cotenant-in-common for waste, but not for unpermitted use of 

the property. Section 70-16-106, MCA. By positive statutory authority, a cotenant-in-common is allowed to possess 

and use the entire commonly-held property. Section 70-1- 

311 (also codified as section 70-19-202, MCA.) 

The District Court correctly denied the unlawful 

detainer pleading amendment and properly restricted the 

issues for trial to an action for an accounting. 

Affirmed. 

We Concur: 

ghief Justice 

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V 

Justices 

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This cause was submitted prior to January 7, 1981.