cotenants, was thus clearly and forcibly stated by Judge Scott, in the Supreme Court of Missouri: "The law of ouster in an action of ejectment between cotenants, wherein the one denies that the other ever had any title to the disputed premises, must be the same as in an action between those who are connected by no such relation. If the defendant wanted the benefit of the facts assumed in her instruction, why in her answer did she not disclaim to hold adversely to the plaintiffs? She would in one breath deny that the plaintiffs are her cotenants, and in the other claim the benefit of the relation. Where one cotenant seeks to bar another on the ground of adverse possession, the law requires proof of unequivocal facts showing an actual ouster. So, where the title of plaintiff is not disputed by the defendant, and the case turns on the fact whether there has been a disseizin of one cotenant by another, the plaintiff must show an actual ouster, or that some act was done by the defendant amounting to a total denial of the right of the plaintiff as a cotenant. action where the cotenancy is denied ever to have existed, there is no reason why stronger evidence of an ouster should be required of one claiming as cotenant than any other party. By filing such an answer as was put in in this case, an act was done which showed that the defendant made a total denial of the right of the plaintiffs as cotenants." ? 293. What Judgment Plaintiff may have.-The recovery of the plaintiff must be consistent with the title upon which it is based. If he has an undivided interest, his recovery against another person having a like interest must not be for the possession of the lands in entirety, but that he be let into possession with the defendant. He is equally entitled to such joint possession, and equally denied the right to exclusive possession, whether his moiety is so large as to almost include the whole, or so small as to grow infinitesimal when compared with the entire tract. Therefore, so far as the judgment to be entered in an action of ejectment is concerned, the relative interests of the plaintiff and defendant are perfectly immaterial; but as this judgment may, and in 1 Peterson v. Laik, 24 Mo. 543. 2 Ewald v. Corbett, 32 Cal. 499; Tevis v. Hicks, 38 Cal. 234. all probability will, be succeeded by an action for mesne profits, it is proper for the Court before which the ejectment suit is tried to ascertain and settle the respective interests.of the parties.1 294. Where Interest of Plaintiff is less than that sued for. The plaintiff may recover, though the interest which he establishes at the trial is different in quantity from that which he claimed in the declaration. If he declares for a specified, undivided interest, he may recover though his evidence is for a much smaller interest.2 The same rule probably prevails where plaintiff declares for the whole; in which case, he may recover either the whole or any undivided moiety thereof, as he shall show himself entitled. From this last proposition the Courts of Maryland, as well as some of the early decisions in New York, dissent. They hold that plaintiff "cannot recover an undivided part when he claims an entirety, nor an entirety when he demands an undivided portion."4 295. Forcible Entry and Unlawful Detainer.—It is said that a cotenant is liable in England to a criminal prosecution for forcibly ejecting or forcibly holding his companion out of possession. The Supreme Court of Illinois, at an early day, maintained that the object of the Forcible Entry and Detainer Act of that State was to create a civil remedy in all cases which, in England, would have sustained a criminal prosecution; and, therefore, that redress might be had in Illinois, under the act of that State, by one tenant in common, or joint-tenant, against his cotenant, where the latter forcibly ousted the former." A like conclusion had been reached a few years previously in the Court of Appeals of the State of Ken Mahoney v. Middleton, 41 Cal. 54. "Davis v. Whiteside, 1 Bibb, 510; Burges v. Purvis, 1 Burr, 326; Ablett v. Skinner, 1 Siderf. 229. 3 Lewis v. McFarland, 9 Cranch, 151; Gist v. Robinet, 3 Bibb, 2; Gray v. Givens, 26 Mo. 303. 4 Carroll v. Norwood, 5 H. & J. 174; Benson v. Musseter, 7 H. & J. 212. See also, to the same effect, Holmes v. Seely, 17 Wend. 75; Gillett v. Stanley, 1 Hill, 129. But these New York cases are denied in Vrooman v. Weed, 2 Barb. 330; Van Rensselaer v. Jones, 2 Barb. 643; Neilson v. Neilson, 5 Barb. 573. 5 Mason v. Finch, 1 Scam. 495. 3 tucky.' The judgment in such cases, like that in ejectment, "should be according to the right established for an undivided interest;" i. e., it should authorize the putting of plaintiff into possession, but not the putting of defendant out of possession.2 If a lessee is also a cotenant at the termination of his lease, and, on that account, is entitled to remain in possession, he cannot be proceeded against under the act in reference to unlawful detainers, and thereby compelled to surrender the entire possession. Acts giving double rent against a tenant holding over, after notice to quit, have been held to apply to a cotenant who, subsequent to the expiration of a lease from his companion, refused to let the latter into possession. But the cotenant continuing in sole possession after the termination of the lease from his companion, is not liable for rents, unless he does some act to prevent the latter from joining in the occupation. But where one obtains possession under a lease from the other, he must, at the termination of the lease, surrender the possession which he acquired by it. If an action for an unlawful detainer is brought against him, he cannot successfully resist it by showing that the title was at the leasing, and still is vested in himself and his lessor as tenants in common. 6 2296. Trespass to try titles, like an action of ejectment, cannot be sustained by one tenant in common, or other cotenant, against one of his fellow-tenants, in the absence of an actual ouster.7 FOR ACTS OF TRESPASS. 297. An action on the case has long been recognized as an available remedy for many of the wrongs suffered by one cotenant from the hands of another. Thus, Lord Coke states that, "if two several owners of houses have a river in 1 Eads v. Rucker, 2 Dana, 111. brey v. Presbrey, 13 Allen, 281. Cal. 495. The same rule prevails in Massachusetts. Pres- 2 Same as 1; and Jamison v. Graham, 57 Ill. 97. 3 Henderson v. Allen, 23 Cal. 519; Lick v. O'Donnell, 3 Cal. 59. + Cutting v. Derby, 2 H. Bla. 1075, 1077; Mumford v. Brown, 1 Wend. 52. 5 Mumford v. Brown, 1 Wend. 52. Hershey v. Clark, 27 Ark. 528. 7 Taylor v. Stockdale, 3 McCord, 302; Harvin v. Hodge, Dudley, 23. common between them, if one corrupt the river, the other shall have an action upon his case;" and Lord Kenyon declares that "if one tenant in common misuse that which he has in common with another, he is answerable to the other in an action for misfeasance."2 An action on the case is the proper means of redress for a tenant in common who has been injured by the "disturbance or deprivation of the enjoyment of an incorporeal hereditament." "It may be safely laid down, as a principle governing actions between tenants in common, that when there is a total destruction of the article held in common, an action of trover or trespass may be sustained; but where there has been simply an abuse of it, whereby its value is impaired, an action on the case may be brought." It is therefore maintainable for a disturbance of a common of pasture, or for the disturbance of a ferry by setting up another ferry near it. If two persons have the right to fish upon the lands of another, this is an incorporeal hereditament. If one of these persons keeps the other out of the enjoyment of this right he is liable, in an action on the case, for the damages occasioned to his cotenant by such deprivation. "In England, one commoner maintains an action on the case against another commoner for surcharging the common, whereby the plaintiff is unable to enjoy the common in so ample and beneficial a manner as he ought and otherwise would." "In cases where there has not been a total destruction of the subject-matter of the tenancy in common, but only a partial injury to it, waste, or an action on the case will lie by one tenant in common against another; as if one tenant in common of a wood or piscary does waste against the will of another, he shall have waste; or if one corrupts the water, the other shall have an action on the case."9 This action is 1 Co. Litt. 200 b. 2 Martyn v. Knowllys, 8 T. R. 146; Booth v. Sherwood, 12 Minn. 429. 3 Duncan v. Sylvester, 24 Me. 488; Stocks. v. Booth, 1 T. R. 428; Beach v. Child, 13 Wend. 343. + Bond v. Hilton, Busb. Law, 309. 5 Atkinson v. Teasdale, 3 Wils. 278. 6 Blissett v. Hart, Willes, 508. 7 Duncan v. Sylvester, 24 Me. 482. McLellan v. Jenness, 43 Vt. 190; Hobson v. Todd, 4 T. R. 73. 9 Littledale, J., in Cubitt v. Porter, 8 Barn. & C. 268. C. & P.-23 2 3 a proper remedy for an injury to the common property, as by tearing down a dam, taking wheels out of a mill, etc. An action on the case may be sustained by a cotenant against his fellow-tenant for diverting water from a mill which they owned in common, and also for erecting a dam across a stream, whereby the common property was overflown. The same action has been allowed for obstructing a cotenant from cleaning out a well, and also for a destruction by one part owner of the title deeds of the joint estate, and also for the negligence of a tenant in common, through which a mill belonging to the cotenants was destroyed by fire." In North Carolina, it has been held that "if a tenant in common receives more than his share of the profits, by an excessive use of the property, as by wearing out the land, or by an improper use of it, as by cutting down the timber and selling it, he cannot be treated as a tortfeasor, but the remedy of the cotenant is by an action of account, or a bill in equity for an account.7 8 298. Trespass.-There was never any doubt that if either cotenant destroyed the property of the cotenancy, the other might have an action of trespass, and this was supposed to be because, after such destruction, there was no cotenancy to be pleaded in bar. But in some of the authorities, no other exception seems to be recognized; and in a few, the unqualified statement is made that "trespass lies not by one tenant in common against another tenant in common. This statement, whenever and wherever made, must be understood as being applicable only to the particular facts before the Court; for it is not probable, nor even possible, that any Judge, whose official position was such as to make his opinions 1 Linton v. Wilson, 1 Kerr, (New Brunswick,) 231. 2 Blanchard v. Baker, 8 Greenl. 253; Pillsbury v. Moore, 44 Me. 154; McLellan v. Jenness, 43 Vt. 186; Runnels v. Bullen, 2 N. H. 536 Odiorne v. Lyford, 9 N. H. 502. 6 Daniels v. Daniels, 7 Mass. 135. 6 Chelsey v. Thompson, 3 N. H. 1. 7 Darden v. Cowper, 7 Jones Law, 210; Smith v. Sharp, Busb. Law, 91. Co. Litt. 200 b. "Matt v. Hawkins, 5 Taunt. 22; McPherson v. Seguine, S Dev. 154: Noye v. Reed, 1 Man. & Ry. 63. |