FIFTH DEPARTMENT, DECEMBER TERM, 1887.

(Bird v. Bird, 15 Fla., 524; S. C., 21 Am. R., 296.) The reason of this rule is founded upon the salutary principle that a tenant in common who, although permitted, is not disposed to occupy or cultivate the lands, cannot take or appropriate any share in the productions of his co-tenant or charge the latter for their use by him as otherwise they may have lain waste or unproductive, and is within the doctrine of adjudications in this State, although none have come to our observation determining directly the precise question presented here. (Dresser v. Dresser, 40 Barb., 300; Wilcox v. Wilcox, 48 id., 327.) The statute provides for remedy of a tenant in common by way of an action against his co tenant to require the latter to account for the amount received more than his just proportion. (1 R. S., 750, § 9.) This does not include the value of the use or of the products devoted to his own use. (Joslyn v. Joslyn, 9 Hun, 388; Pico v. Columbet, 12 Cal., 414; 73 Am. Dec., 550; Everts v. Beach, 31 Mich., 136; 18 Am. R., 169; Kean v. Connelly, 25 Minn., 222; 33 Am. R., 458; Roseboom v. Roseboom, 15 Hun, 309; Izard v. Bodine, 3 Stock. Ch., 403; 69 Am. Dec., 595.)

The possession of one tenant in common is not presumed to be in hostility to that of his co-tenants, but unless it appears to be exclusive or adverse is deemed the possession of all of them, (4 Kent Com., 370.) And they may jointly occupy every portion of the lands so held in common and neither can rightfully sever or occupy in severalty the premises without the consent express or implied of the others.

The question relating to the grass cut by the plaintiff presents an inquiry somewhat different from that relating to the oats. The trial court held and charged the jury to the effect that when the plaintiff entered upon the portion of the meadow on which he cut the grass he took possession of that part of the premises, and by force of it acquired the title to the grass which he cut; that he had the right to protect such possession and the title thus derived to the grass mowed there by him. This proposition is a legal assumption that this was an ouster of the co-tenants from that portion of the farm and that the possession of the plaintiff became adverse to them. If that position is supported it may be the defendant could not as against the plaintiff effectually assert any claim to the hay in question, because he must establish his right by ejectment

FIFTH DEPARTMENT, DECEMBER TERM, 1887.

before any interest resting in possession could be maintained. (Stockwell v. Phelps, 34 N. Y., 363; Wait v. Richardson, 33 Vt., 190; 78 Am. Dec., 622.) The plaintiff, as tenant in common at least, was rightfully in possession, and the defendant House had no right to put him out. But that situation, in view of the fact that the possession of one tenant in common is presumptively the possession of the others, also did not deny to his co-tenant the right to go into the possession as such of this part of the land. The grass growing in the meadow was the property of all the co-tenants, and they had, so far as appears, the possessory right jointly to go upon the premises, cut and take it away. The plaintiff was not a trespasser in proceeding as he did to mow and gather the hay, nor was the defendant House in going upon the land. It is not apparent how the plaintiff, by going upon this portion of the premises and cutting the grass, and in proceeding to gather it, acquired the exclusive possession in hostility to the other tenants so as to produce their disseisin. That act clearly did not have such effect. (Culver v. Rhodes, 87 N. Y., 348.)

The case, as presented by the record, does not, therefore, require the consideration of any question relating to the effect of ouster by a co-tenant upon the rights of property of the other tenants in common, and the remedies incident to that situation, nor do we intend to indicate any views upon that subject. If the plaintiff had been permitted to cut and appropriate all the grass in the meadow to his own use the other tenants in common would have been without remedy against him within the rule before stated. (Badger v. Holmes, 6 Gray, 118.) And if the mowing and proceeding by one tenant in common to gather the hay vests in him as against his co-tenants the exclusive title to it, then it would follow that precedence by one in the work of severing it from the land might have the effect to give him as against them the right to assert title to the whole as soon as it was so severed by the act of mowing. And thus summarily he could divest them of all right to any portion of the grass suitable for hay in the meadow of the common premises and leave them remediless. Growing grass, like trees, is part of the reality until severed, and unlike other farm crops is in some sense a self supporting production. The hay in question was, therefore, not the product of the labor of the plaintiff, and he acquired HUN VOL. XLVI 76

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no additional right of property by the mere act of severing it from the land. It may be that when property owned in common is in all respects equal in character, quality and value it may be severed by one tenant in common and his share taken by him, and that rule may be applicable to standing grass. (Tripp v. Riley, 15 Barb., 334; Fobes v. Shattuck, 22 id., 568; Dear v. Reed, 37 Hun, 594.) But that is not the question presented by the exceptions, and it is not here for consideration. Nor does the cited case of Newcomb v. Ramer (2 Johns., 421, note) support the plaintiff's contention. There the relation of tenancy in common did not exist in respect to the property in controversy. If these views are correct the defendant House, for the purpose of this review, must be treated as a tenant in common of the grass or hay in question. And the trial court was in error in holding that the plaintiff, by means of taking possession of the ground upon which it stood, and severing it from the land, acquired a title in exclusion of such defendant. There is no exception presenting any other question requiring consideration.

The judgment and order should be reversed, and a new trial granted, costs to abide the event.

BARKER, J., concurred; SMITH, P. J., not voting.

Judgment and order reversed, and new trial granted, costs to abide event.

FIFTH DEPARTMENT, DECEMBER TERM, 1887.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JASPER STOCKWELL, COMMISSIONER OF HIGHWAYS OF THE TOWN OF IRA, IN THE COUNTY OF CAYUGA, APPELLANTS, v. JOHN TALMAGE AND OTHERS, REFEREES, RESPONDENTS.

Certiorari to review proceedings of referees on an appeal from an order of a commissioner of highways – none of the proceedings, on the application to the commissioner, are brought before the court - the review is to be had on the return alone-objections not based upon facts appearing in the record cannot be considered.

By the return to a writ of certiorari, issued to review the proceedings of referees had on an appeal from an order of a commissioner of highways refusing to alter a highway, it appeared that the referees met at a time and place appointed, and after hearing the parties and deliberating together two of them united in a decision reversing the order of the commissioner, in which the other referee did not join. The relator sought to raise questions going to the jurisdiction and regularity of the proceedings taken upon the application to the commissioner, and anterior to his denial of the application.

Held, that none of the proceedings taken upon the application to the commissioner and preceding the appeal were brought before the court by the writ. The relator claimed that, because it did not appear by the return that any notice of the hearing before the referees was given to the occupants or owners of the land through which the proposed altered line of the highway was located, the determination must be deemed to have been made without jurisdiction. None of the evidence taken before the referees was contained in the record before the court, except that the return stated some facts represented by it, and it appeared that the evidence was "expunged from the return" by stipulation.

Held, that, as the review was had solely on the return to the writ, the objection was not available to the relator upon the record.

Although it is a general rule that when inferior magistrates are required by certiorari to return their proceedings, they must, in support of their determination, make their jurisdiction affirmatively appear, that rule does not necessarily apply to a return which has been rendered imperfect or incomplete as this one had been. The order appointing the referees recited that the three referees therein named were disinterested freeholders. The relator raised an objection to the eligibility of one of the referees, who certified for himself, in the return, that he was not a freeholder.

Held, that, as the only evidence upon the subject properly in the record was the recital of the order of the county judge making the appointment, the question was not legitimately within the record brought before the court and could not be considered.

CERTIORARI to review proceedings of referees on an appeal from an order of the commissioner of highways refusing to alter a highway

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in the town of Ira, county of Cayuga. The defendants, who were by the county judge of that county appointed as referees to hear and determine such appeal, reversed by the decision of a majority of them the order of the commissioner. The writ was directed to the referees only; and the case is heard upon their return.

A. P. Rich, for the relator.

Woodin & Warren, for the respondents.

BRADLEY, J.:

It appears by the return to the writ that the referees met at a time and place appointed; that the appellant and the commissioner appeared and gave proofs, and after they were closed and the matter submitted, all the referees deliberated together and two of them united in a decision reversing the order of the commissioner, in which the other referee did not join. The testimony of witnesses taken on the hearing is not set out in the return. The relator seeks to raise questions going to the jurisdiction and regularity of the proceedings taken upon the application to the commissioner, and anterior to his denial of the application to alter the highway. And with that view asserts that no notice was given by the applicant to the owners or occupants of some of the improved lands to be affected by the proposed alteration; that no consent in writing appears to have been given by them and that no jury was drawn or summoned to certify the necessity of such alteration. The application to the commissioner was put in evidence and is set forth in the return, and it contains the statement that the owners of the lands "have given their consent to the proposed change." But these questions do not arise upon this review. None of the proceedings taken upon the application to the commissioner and preceding the appeal are brought here by the writ. The powers and duties which were formerly devolved upon three judges of the Common Pleas on such appeals (1 R. S., 518, § 84) are vested in referees. (Laws 1847, chap. 455,

8.) And the proceeding is in some sense and in practical effect a new one instituted by the appeal to lay out or alter a highway, and dependent upon the facts as they exist at the time of the hearing. (People v. Goodwin, 5 N. Y., 568; Rector v. Clark, 78 id., 21.) The parties to it are the appellant and the commissioner from whose