Almy v. Daniels

• Court: Rhode Island Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Almy v. Daniels, 15 R.I. 312, 10 A. 654 (R.I. 1887)
• Decision Date: 30 July 1887
• Parties: ALMY and another, Ex'rs, v. DANIELS.

10 A. 654

15 R.I. 312

ALMY and another, Ex'rs,

v. DANIELS.

Supreme Court of Rhode Island.

July 30, 1887.

The former decision in this case will be found in Index Y, 15, 4 Atl. Rep. 753. After said decision, the matter was referred to an auditor to state an account; and while the matter was before the auditor plaintiff applied to the court to have the auditor instructed on certain questions of law raised before him.

Joseph C. Ely and Herbert Almy, for plaintiffs. Benjamin N. Lapham, for defendant.

PER CURIAM. When this case was before the court upon petition for new trial, the court held that the plaintiff's intestate had the right to use the entire strip in common with the defendant, and that the defendant's exclusive possession and ouster of his co-tenant of any portion was, ipso facto, a use of a greater portion than his interest therein, which entitled the plaintiff to an account. That decision did not depend upon the use which it was claimed had been made of the balance of the land in connection with the plaintiff's estate, because the defendant's occupancy of the half covered by his building was such an ouster of the plaintiff as to interfere with his rights as a tenant in common, and thus to entitle him to an account.

The question now comes upon the right to charge the plaintiff with the use which he had made of the other half of the land. The land in question is 40 feet on Custom-House street and 36 feet deep. A strip 20 feet wide on Custom-House street is covered by the defendant's building, and the remaining 20 feet is and has been used as a gangway. On the plaintiff's side is a sidewalk four feet wide, and on the defendant's side one which is two and a half feet wide. Each of these has been used from time to time by the tenants of the adjoining buildings for storing oil barrels. We are now asked to instruct the auditor whether he is to consider such use in making up the account. We think the following rules, derived from decided cases, will sufficiently answer the question:

1. When a tenant in common has the entire and exclusive occupation of the whole or any part of the common estate, he is liable to account therefor.

2. When he has the income or profit of more than his share, he is liable to account for the excess.

3. When he uses the estate only to an extent less than his share, and not to the extent of an ouster or denial of right of his co-tenant, he is not liable to account; and therefore such use cannot be offset against the excessive use by his co-tenant. A charge for such use would be a charge for the use of one's own property, and for the exercise of his legal right. See Almy v. Daniels, Index Y, 15, 4 Atl. Rep. 753; Knowles' Adm'r v. Harris, 5 R. I. 402; Hayden v. Merrill, 44 Vt. 336; Edsall v. Men-ill, 37 N. J. Eq. 114; Colburn v. Mason, 25 Me. 434. The question of exclusive occupation calls for a finding of fact, in regard to which it is not the province of the court to instruct the auditor.

As to the statute of limitations. The rule is that the statute begins to run from the time a tenant in common denies the right of his co-tenant. This denial of right may be shown by a refusal to pay or account, on demand, or by an ouster. Although a tenant in common is bailiff of his co-tenant, yet if he denies the right of the co-tenant, and holds adversely to him, the confidential relation ceases, and the statute begins to run from that time. Terrill v. Murry, 4 Yerg. 104; Northcott v. Casper, 6 Ired. Eq. 303; Jolly v. Bryan, 86 N. C. 457; Huff v. MeBonald, 22 Ga. 131. See, also, Crapo v. Cameron, 61 Iowa, 447, 16 N. W. Rep. 523; Tarleton v. Goldthwaite's Heirs, 23 Ala. 346; Wugstaff v. Smith, 2 Dev. Eq. 264. As the ouster in this case consisted in the exclusive appropriation of a portion of the land to the defendant's building, the statute began to run, as to that portion, when such appropriation took place, and not from the time of demand for an account, as claimed by the plaintiff.

But the plaintiff contends that the benefit of the statute is not now open to the defendant. The statute must be pleaded before the interlocutory judgment to account. Closson v. Means, 40 Me. 337; Black v. Nichols, 68 Me. 227. The defendant pleaded to the declaration, with the general issue and special pleas, that the cause of action did not accrue within six years. To this plea no replication was filed, but the...