No. 80-294 INTHE 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: DistrictCourt 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 judgmentof the Tenth Judicial District Court, Fergus County. Following a nonjury trial, the District Courtmade findings of fact and concluded that defendantsAlfred and Carol Heble had not wrongfully held over onproperty once owned by plaintiff. The court furtherheld 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 DistrictCourt erred by refusing to allowplaintiff to plead and prove an unlawful detainer action againstdefendants. We find no error in the District Court proceedings and affirm the judgmentof 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 expirationof 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 theproperty althoughplaintiff did not renew the lease of her interest in theproperty. Plaintiffbrought 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 actionwas delayed until 1980 and by the time of trial, only the accounting issue remained before the DistrictCourt. In 1977, the defendantspurchasedplaintiff's interest in a bank foreclosure sale and became sole owners of the farmproperty. 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 courtdenied plaintiff's motion to add this claimby 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 theproperty 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

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# ..only by leave of court or by written consent of the adverse party; and leave shallbe freely givenwhen justice so requires. 

# .." This rule allows for liberal amendment of pleadings, but does notmean that amendments should be allowed in all instances. See, 6Wright 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 detainerby 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 anowner of an undivided interest inproperty. Section 70-1- 306,MCA. A claimof unlawful detainermay only be asserted against a tenant for a term less than life. Section 70-27- 108,MCA. A tenant-in-commonmay bring a damage action against a cotenant-in-common forwaste, 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-heldproperty. Section 70-1- 311 (alsocodified 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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Justices 

## w This causewas submittedprior to January 7, 1981.