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.
Two brothers, the parties' fathers, Frank and Edward Lincoln Gillmor, had owned the land and used it for their ranching business. Upon the death of Frank Gillmor, his one-half interest in the property passed in equal shares to his sons, the defendant and C. Frank Gillmor. Edward Lincoln Gillmor continued the ranching business. For several years they grazed cattle and sheep on portions of the common properties. Upon the death of Edward Lincoln Gillmor, his one-half interest passed to his daughter, the plaintiff Florence Gillmor, and she, C. Frank, and the defendant became tenants in common. In May 1979, the plaintiff filed the instant suit for an accounting and damages for the defendant's exclusive use of the property since January 1, 1979. She also filed a separate suit for partition of the common properties. The trial was divided into two phases covering different time periods. Following the award to plaintiff, defendant appealed. The court affirmed ruling in part and reversed it in part, holding first that plaintiff's clear demand that defendant share the land coupled with defendant's refusal to accommodate plaintiff established a claim for relief.
Is it true that there was no evidence or finding on the issue of ouster? Even if there were an ouster, were the damages considered excessive?
The defendant contends that the trial court erred in finding that the defendant had exercised exclusive possession and use of the common properties in such a manner as to exclude the plaintiff from using the land. We disagree. The plaintiff sought to graze livestock on the land to the extent of her interest, but was effectively prevented from doing so. She sent defendant a letter expressing her intent to graze her livestock on the properties in proportion to her ownership and requested that the defendant accommodate her plans by altering his operations accordingly. The defendant refused to respond and continued to graze the lands to their maximum capacity. He even acknowledged that additional grazing would have damaged the range land. The defendant asserts that at various times he or his attorney invited the plaintiff onto the lands, but he never indicated any intention to alter his operations so as to accommodate the plaintiff's use of the land. Had the plaintiff grazed her livestock on the common properties while defendant's livestock was also there, the land would have been overgrazed. Indeed, the defendant admitted that if the plaintiff had attempted to put additional sheep on the land, he would have sought an injunction to prevent damage to the land.
A co-tenant may, however, be required to contribute his pro rata share of expenses if the co-tenant in possession acted in good faith, with the bona fide belief that he was the sole owner of the property, or when the repairs were essential to preserve or protect the common estate. Furthermore, where, as here, a co-tenant out of possession seeks an accounting or damages, the co-tenant in possession, who is held liable for the value of the use, occupancy, or rents collected, is entitled to recover reasonable expenditures made by him for necessary repairs and maintenance.
In the instant case, the evidence indicates that the repairs were a necessary cost of grazing the livestock and should have been deducted from the damages awarded. The case must therefore be remanded for a modification of the judgment.