Law School Case Brief
Gillmor v. Gillmor - 694 P.2d 1037 (Utah Sup.Ct. 1984)
Mere exclusive use of commonly held properties by one co-tenant is not sufficient to establish an ouster. A tenant-in-common has the right to use and occupy the entire property held in co-tenancy without liability to other co-tenants. Each co-tenant has the right to free and unobstructed possession without liability for rents for the use and occupation thereof.
The parties were co-tenants of a property made up of several large parcels amounting to some 33,000 acres located in Summit, Tooele, and Salt Lake counties. Florence Gillmor brought an action against Edward Leslie Gillmor and his brother claiming that they had kept her from grazing her livestock on the land, which they owned as tenants-in-common. An earlier ruling was made in favor of Florence, and the land was partitioned. Florence then filed an action for an accounting and damages. The trial was divided into two phases covering different time periods. Eventually, Florence was awarded a $29,760 judgment award following a ruling that Edward had obstructed her from exercising her right to occupy land in which she owned an undivided interest. Edward appealed.
Did the trial court err in holding that Edward Gillmor obstructed Florence Gillmor from exercising her right to occupy the said property as a co-tenant?
The Supreme Court of Utah affirmed that part of the trial court's ruling that Edward had ousted Florence from the land they owned as co-tenants. The Court affirmed the damage award to the extent of the basis for calculation but reversed the award to the extent it did not consider the repairs made by Edward to the common property. The Court affirmed that Florence's clear demand that Edward share the land coupled with Edward's refusal to accommodate Florence established a claim for relief. Florence did not have to graze her livestock on the land, and thereby damage the land, to have established her right to a claim. The basis for damages in the second phase of the trial was appropriate because Edward had not challenged the underlying calculation or the trial court's failure to consider the value of Edward's services, as the trial court had done in the first phase. The Court did, however, reverse the award to the extent that the award did not account for repairs Edward made to the common property.
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