Cosgriff v. Foss

• Decision Date: 02 March 1897
• Citation: 46 N.E. 307,152 N.Y. 104
• Parties: COSGRIFF et al. v. FOSS et al.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 104

46 N.E. 307

COSGRIFF et al.

v.FOSS et al.

Court of Appeals of New York.

March 2, 1897.

Appeal from supreme court, general term, Second department.

Action by Andrew Cosgriff and another against Wilson P. Foss and others for partition. From a judgment of the general term (19 N. Y. Supp. 941) modifying the judgment in so far as it allowed defendant William Dewey for improvements, he appeals. Affirmed.

This was an action of partition, and upon the trial thereof, without a jury, the court found that Andrew Cosgriff was entitled to eighteen undivided sixty-fourths of the premises in question; that Wilson P. Foss and Jacob E. Conklin were each entitled to nine undivided sixty-fourths; and that William Dewey was entitled to twenty-eight undivided sixty-fourths. The premises consist of 110 acres of land, lying along the Hudson river, in Rockland county, of a mountainous character, adapted to the quarrying of trap rock, and the crushing thereof, for supplying the markets of New York City, and they have substantially no value for any other purpose. At one end a quary has been operated for many years by various tenants of the owners of the property. On the 28th of March, 1889, Catharine Blauvelt, who was then the owner, executed a lease of nine undivided sixteenths of said premises to Mr. Dewey, ‘to be used only for the purpose of and for the business of a quarry, the excavation, preparation, and sale of stone or rock, either crushed or uncrushed,’ for the period of three years from March 1, 1889, at a rent reserved of $1,000 per year. The landlord reserved the right to sell the premises, but the tenant was given ‘the option of purchasing the same at the price agreed upon, in preference to any other person or persons'; and the right was expressly granted to him, ‘at any time during the continuance of said term, of removing any machinery or buildings which he may erect or place upon said premises.’ Mr. Dewey operated the quarry as tenant until August 31, 1889, when he became the owner of his said share by virtue of a conveyance that was subject to his lease. On August 2, 1890, Cosgriff, Foss, and Conklin acquired their interests, including the landlord's rights under said lease, by a deed of that date, which was also subject to the lease to Dewey. From August 31, 1889, when Mr. Dewey became part owner, until July, 1891, when a reference was had to ascertain the value of the improvements, he was in possession and occupation of the premises, and during that period improved the same for quarrying purposes by building foundations of stone masonry, erecting buildings for use in the business of quarrying and breaking stone, enlarging the working space of the quary, and making changes and additions which are substantial and useful, and increase the value of the premises. The cost of the improvements allowed by the special term was $9,672.40, of which $5,440.73 was directed by the final judgment to be deducted from the shares of the co-tenants, and paid to Mr. Dewey. The premises, which are worth from $20,000 to $40,000, and have a rental value of at least $2,000 per year, are incapable of actual partition; and a decree was made for the sale thereof, and the distribution of the proceeds among the owners, according to their respective shares. subject to the modification above named. The general term modified the judgment by striking out the allowance for improvements, but in all other respects affirmed the judgment rendered by the special term. The defendant Dewey appealed to this court.

Clarence Lexow and Arthur S. Tompkins, for appellant.

Irving Brown, for respondents.

VANN, J. (after stating the facts).

The question presented by this appeal is whether a tenant in common, who is also a lessee of his co-tenant, can be allowed in partition for improvements made upon the property in the course of his tenancy, which enhanced its value, and were made with the knowledge, but without the consent, of the co-tenant, when the effect of such improvements was not to protect or preserve the property, but to aid the tenant in carrying on a business then prosecuted by him upon the premises, the increased income from which was not shared with the co-tenant.

At common law, a tenant in common, who has made permanent improvements, as distinguished from ordinary repairs, upon the common property, cannot recover from his co-tenant any part of his expenditures for that purpose, unless they were made at the request or with the consent, express or implied, of the latter. Mumford v. Brown, 6 Cow. 475; Jackson v. Bradt, 2 Caines, 302; Taylor v. Baldwin, 10 Barb. 582, 590, 626;Putnam v. Ritchie, 6 Paige, 390, 405;Crest v. Jack, 3 Watts, 238;Gregg v. Patterson, 9 Watts & S. 197, 209; Story, Eq. Jur. § 1235; Knapp, Part'n, 10. In some states this is the rule, even when the expenditure was necessary to keep the property from going to ruin; while, in others, repairs essential to preseration may be made at the expense of the cotenants, in proportion to their respective shares, without their consent, especially if such consent is unreasonably withheld after due request. It is strictly limitedto repairs, however, and does not extend to improvements not essential to protect the property, but designed to enhance its value. Loring v. Bacon, 4 Mass. 575; Beaty v. Bordwell, 91 Pa. St. 438; Stackable v. Stackpole (Mich.) 32 N. W. 808;Wiggin v. Wiggin, 43 N. H. 561;Alexander v. Ellison, 79 Ky. 148;Hancock v. Day, 36 Am. Dec. 293. The rule of courts of equity upon the subject is more liberal, and extends to improvements in special cases; as, in an action of partition, for instance, the court acts upon the principle that the party who asks for equitable relief will be required to do what is equitable himself. The rule, however, is carefully limited to those cases where special circumstances give rise to strong equitable rights. Putnam v. Ritchie, 6 Paige, 390;Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283. Some authorities sanction repairs that are absolutely necessary to preserve houses and mills, already erected and in being, but refuse to extend the rule to other kinds of property. Dech's Appeal, 57 Pa. St. 467, 472; Anderson v. Greble, 1 Ashm. 136, 139. Chancellor Kent says: ‘One joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them, though the rule is limited to those parts of the common property, and does not apply to fences inclosing wood or arable land.’ 4 Kent Comm. 370. Other cases permit improvements to be set off against rents and profits, but not charged against the body of the estate, unless made with the knowledge and consent of the other owners. Pickering v. Pickering, 63 N. H. 468, 3 Atl. 744;Luck v. Luck, 113 Pa. St. 256, 6 Atl. 142;Jones v. Jones, 23 Ark. 211. Where one tenant in common, who was in possession, supposing himself to be the legal owner of the entire premises, erected valuable buildings thereon, he was held entitled to an equitable partition, so as to give him the benefit of his improvements. Town v. Needham, 3 Paige, 546. So, in an action for partition, where actual division is possible, the co-tenant who has made valuable improvements upon one parcel is usually allotted the part that he has enhanced in value, or so much thereof as represents his share in the whole tract. Freem. Co-ten. § 509; 17 Am. & Eng. Enc. Law, 758. But, when the property is so situated that actual partition is out of the question, even courts of equity, in this state, do not require contribution for improvements, as distinguished from repairs, except in the case of mills, houses, and the like, under circumstances of special necessity. The erection of a new and independent building, the improvement of farming lands by fencing or...