Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-08-10
SUPREME COURT.
FULL TEXT OF DECISION FILED.

William Keese, senr., a. administrator Of the
estate Of Samuel Connolly, deceased, respond
e''t, as. Nichaez Connolly, appellant.
OPINION.
Defendant and the plaintiffs intestate were
tenants in common of certain parcels of land,
the former owning an undivided two-thirds,
the latter the remainder. Defendant cut grass
growing upon the land. This action is brought
to recover one-third of the value of the same
''as rents and profits" of the common property
received by defendant. 1t is not alledged or
shown that defendant sold any of the grass.
But the complaint alleges that the grass was
cut, and taken by him, and that she converted
it to his own use. As these allegations are not
controverted it may be assumed that the de-
endant in some way appro priated the grass to
his own use, and thus had the benefit of it
though it cannot be assumed that he sold it. or
that he received value for it in money or other
wise. The answer denies that the value of the
rents and profits was as large as alleged in the
complaint, and attempts to get up counter
claim arising out of the payment by defendant
OF all the taxes charged upon the whole of the
common land. No facts are averred showing
that any accounting is necessary in order to de-
termlne what share of the rents and profits re-
ceived by defendant the plaintiff is entitled to
recover. But upon the issues as found if he
is entitled to recover share of such rents and
profits proportiorate to his share in the lands
to-wit: One-third less the deduction (if any,
to which the defendant may be entitled on ac-
count of the payment of taxes. In other words
it is upon the issues to be assumed that the de-
PENDANT is not entitled to have the plaintiff s
one-third of the rents and profits received
by defendant abated Or reduced on any other
hat e .,l, SF %oxxz
Under his state of facts there is reason why,
if the plaintiff is entitled to recover at all he
should not do SO in this action which may prop
erly be regarded aa in the nature of as
sumpsit.
Freeman on Co.tenancy. sec. 2S0-2S4. The
main question of the case is whether one tenant
in common can recover anything of his CO.
tenant for taking and converting to his own
use the products of the common land. The
question has of course no reference to case of
waste or the receipt of rents or profits from
third person.
Our statute enacts that lone joint tenant
or tenant in common and his executors or adj
ministrators may maintain action against
his co-tenant for receiving more than
his just proportion of the rents and profits of
the estate owned by them as joint tenants or
tenants In common Gen. Stat, Oh. rs, sec. "a.
As respects the ground of the liability
of one tenant in conmon to his co-tenant,
this statute is analogous to 4 and 5.
Anne. Oh. 16. which gives an
action of account by tenant in common against
another as his bailiff, ''for receiving more than
comes to his just share or proportion" Also
to the statute of New York, which gives like
action against tenant s'for receiving more
than his full proportion l R. S. 75O, sec 9.
Also to the statute of Indiana which gives a
tenant in common an action against his CO.
tenant. for receiving more than his just pro-
nOrtiOn ~ The ats 70 nf Mis-. eli ilor
to the New York statute.
In Henderson VS.. Eason, IL Ad., and Ell. N. s..
FOL, an appeal from the Court of Queen S
Bench to the Exchequer Chamber, the passage
above quoted from the statute of and Anne,
was fully considered, and was held ito apply
only to the cases where the tenant in common
receives money or something else, where an
other person gives or pays it, which the CO.
tenants are entitled to simply by their being
tenants in common on and in proportion to their
interests such, and of which one receives
and keeps more than his just share
according to that proportion" Mcmahon VS..
Burchell, % Eng. Cby. 1876, is to the same
effect. In Woolever VS.. Knapp, 10 Barbour 265,
the statute of New York came under consider
alton. 1t was held to be substantially the
same the statute of Anne, and the court fol
lowed Henderson vs.. Eason Supra, holding that
one OF several tenants in common who pos
sesses the entire premises without any agree
ment with the others as to his possession, or
any demand on their party to be allowed to
enjoy the premises with him is not liable to
account to his co-tenants for the use and oc-
cupation of the premises. This. case is ap-
proved and followed in Dresser VS.. Dresser, 40
Barbour 300; in Elwell VS.. Burn side. a. Bar
bonr AT; in Wilcox VS.. Wilcox, % Barbour
327; in Scott vs.. Galversey. 60 Barbour 1863,
and has not SO tar we hare discovered, been
criticised or disapproved in any of the courts
of New York. In Crane VS.. Waggoner 81 Ind
So, the statute of Indiana above referred to was
considered, and citing and following Henderson
VS.. Euson and Woolver We Knapp, the court
held that the statute applied only to cases
where rent and payment Ill money or in kind
due in respect of the premises is received from
a third party by one co-tenant, who re aims for
his own use the whole or mere than his proper
tionate share, 2 and that one tenant in common
unless he has been excluded from possession by
his co-tenant, cannot maintain an action
against the latter for use and occupation.
Ryan VS.. Mccoy. % Mo-, $50, is to the same
effect. See also Israel VS.. Israel. 80 Mo-, 100.
lizard VS.. Bodine, 8 Stockton, 403. Davidson
VS.. Thompson, % N. j. Eq., SO. Pico VS.. Col
nmbet, 4l4. Peck VS.. Carpenter, Gray, 2s3
Freeman on Co-tcnantry and Partition sections
258, go, 275, ZIG. A different view of the
liability of tenant in common is taken in
Thompson vs. Bostwick, HcMillan's Eq. $50.
Corr Is; in Early VS.. Friend, Is Grattan. At;
a.
Merrill, "A Vt, sAs. But we think
that Mr.. freeman is warranted
in asserting that ''the decided preponderance
of the authorities both in England and Amer
lea affirms the right Of each co-tenant to enter
upon and hold exclusive possession of the
common property and to make such profit as
he can by proper cultivation other usual
means OF acquiring benefit therefrom and to
retain the whole of such benefits, provided
that IN having such possession and in making
such profits he has not been guilty of any
custer of his co tenant nor hindered the latt i
from entering upon the premises and enjoying
them as he had right to do. The reasoning
upon which these decisions constituting the
great bulk of the authorities on this subject
rests is, That as each co-tenant has at all times
the right to enter upon and enjoy every part
of the common estate this right cannot be i'm
paired by the fact that another of the Gotten
ants absents himself or does not choose to
claim his right to an equal and common enjoy
ment that it would be ineouita-
BILE to compela co-tenant in possession to ac-
count for the profits, realized out
of his labor, skill and business enterprise when
he has no right to call upon his co-tenant tc
contribute anything towards the production OF
these profits, nor to bear his proportion when
through bad years, failure of crops, or other
unavoidable misfortunes the use made of the
estate resulted in {. loss instead of profit to
the one in possession" Freeman on Gotten,
ancy; s. 25S.
It is not alleged in the complaint in this
action that the defendant has been guilty OF
any custer of the plaintiff or his intestate mol
that he has in any way hindered them from en-
terlng upon the common premises and ENJOYING
the same. Neither does the case disclose any
evidence to that effect. Ii it did the evidence
would be irrelevant for lack of proper allega-
lions in the complaint. The case is simply one
which the defendant has appropriated directly
to his own use products of the common prop
of his co-tenant from the enjoyment thereof
In such state of facts the plaintiff cannot
recover. It is proper to add that upon the
evidence in the case it does not appear that the
defendant has appropriated any more than two
thirds of the grass growing upon the com mon
land. This would be no more than the lust
proportion" which the statute under which This