Utah Oil Refining Co. v. Leigh

• Decision Date: 16 December 1939
• Docket Number: 6131
• Citation: Utah Oil Refining Co. v. Leigh, 98 Utah 149, 96 P.2d 1100 (Utah 1939)
• Court: Utah Supreme Court
• Parties: UTAH OIL REFINING CO. v. LEIGH

96 P.2d 1100

98 Utah 149

UTAH OIL REFINING CO. v. LEIGH

No. 6131

Supreme Court of Utah

December 16, 1939

Rehearing denied, February 7, 1940.

Appeal from District Court, Fifth District, Iron County; LeRoy H Cox, Judge.

Proceeding to secure the partition of realty by Utah Oil Refining Company against Rufus W. Leigh. From a judgment, plaintiff appeals.

Remanded with directions.

Ball &amp Musser, of Salt Lake City, for appellant.

H. R. Waldo and Benjamin Spence, both of Salt Lake City, for respondents.

LARSON, Justice. MOFFAT, C. J., and McDONOUGH and PRATT, JJ., concur. WOLFE, J., being disqualified, did not participate.

OPINION

LARSON, Justice.

Appellant prosecutes this appeal from a judgment entered in the District Court of Iron County. The parties to the action were the owners as cotenants of a tract of land on the southeast corner of the intersection of Main Street and First North Street in Cedar City. The property had a west frontage on Main Street of 132 feet, and a north frontage of 198 feet on First North Street. Plaintiff at the time of this action was, and for some years had been, operating as a lessee a service station on the north 40 feet of the property. In May, 1936, plaintiff commenced this action for a partition of the property. It is alleged the parties were each the owners of an undivided one-half of the property as tenants in common; that the property was susceptible of equitable partition by awarding 66 feet frontage on Main Street to each party, and prayed that the north 66 feet be allotted to plaintiff and the south 66 feet to defendant. Defendant answered admitting the allegations of the complaint but prayed that the north 66 feet be allotted to defendant and the south 66 feet be allotted to plaintiff. Early in October some evidence was taken to determine who were the owners of the property and the extent of their interests and to show the property was susceptible of fair division without a sale. About one month later and before any determination was made by the court plaintiff cut away the curbing for a distance of 26 feet on Main Street extending south from the 40-foot front it held under lease for its service station, built concrete driveways into the property and gravelled part of this 26-foot strip adjoining the 40-foot leased portion, and displayed a sign thereon offering free parking space for cars. Plaintiff then wrote defendant a letter as follows:

"November 6, 1936

"Dr. R. W. Leigh,

"Fort Hancock, N. J.

"Dear Sir:

"Under a misapprehension of the fact we deposited to your account in the Walker Bank & Trust Company the sum of thirty-five ($ 35.00) dollars, as your proportion of the rental for the month of November, 1936. We intended to inform you that you were not entitled to any rent and that from now on you may not expect to receive any consideration for our occupancy of the north sixty-six feet of the so-called Leigh corner in Cedar City, Utah.

"Under the law, and record as made, we have a right to the use of the north sixty-six feet of the property without paying for it and you have the right to exclusive use of the south sixty-six feet of the said property.

"Yours very truly,"

It was stipulated that plaintiff did or said nothing except what is set forth above to interfere with defendant's possession of the 26-foot strip.

Nothing more was done about the matter until April, 1938, when defendant by new counsel filed an amended answer in which he now alleged that a partition giving half of the area to each person would not be equitable because of a greater value per front foot of the corner portion than of the property near the middle of the block. The court appointed referees in partition who partitioned the property, allotting the plaintiff the north 44 feet and the defendant, the south 88 feet as a division equal in value. The court confirmed this action of the referees, so partitioned the property and awarded defendant judgment against plaintiff for $ 1,316.66 as defendant's portion of the rent due under the lease of the north forty feet, no rent having been paid since November 1, 1936; for the further sum of $ 490, being the sum of $ 18.75 per month from November 1, 1936, for rent of the 26-foot strip lying immediately south of the 40-foot strip; and the sum of $ 75 to replace the curb plaintiff had cut away from the front of the 22 feet of the 26-foot strip. Plaintiff appeals and presents four questions for our determination: 1. How much land, measured from the northwest corner along Main Street should have been awarded to plaintiff? 2. Was defendant entitled to judgment for rental of the 40-foot strip covered by the service station lease? 3. Was the court in error in giving defendant judgment for the rental value of the 26-foot strip? A. Was defendant entitled to the $ 75 to replace the curbing on 22 feet of the 26-foot strip? We note them in order.

1. This action was brought by plaintiff pursuant to the provisions of the statute for partition of real property between tenants in common. R. S. U. 1933, Sec. 104-58-1. The court appointed referees in partition pursuant to the provisions of Sec. 104-58-13, R. S. U. 1933, who filed a full report of their study and determination of value of the property and a division awarding the plaintiff the north 44 feet and the defendant, the south 88 feet as equal in value. No useful purpose could be served by a discussion of the figures and equations argued and developed in the briefs. They are not in conformity with evidence upon which it is sought to predicate them. We have examined the record and we find no substantial error in the rulings of the court or the proceedings and determination of the referees in partition. The proceedings were conducted in strict accord with the statutes governing partition, and we shall not disturb the judgment as to the division of the land.

2. As to the rental of the 40-foot strip covered by the service station during the period from November, 1936, to the date of the judgment. Plaintiff entered into possession of this strip under a lease by it from the owners in 1932, before plaintiff acquired any ownership in the property. That lease was for one year but plaintiff admits that it held over under the lease as a tenant from year to year, paying the rents reserved thereby, one-half to each of the two co-owners, even after it acquired its half interest in October, 1935. As such lessee plaintiff was in absolute, unqualified, and sole possession of this property as a lessee thereof and liable for rents reserved, which it paid until November, 1936. In the stipulation of facts filed in the cause it is stipulated:

"3. That plaintiff, since November 1st, 1936, has continued to occupy and use said north 40 feet of said Lot 10 in the same manner and to the same extent that it had theretofore occupied and used the same and in the same manner and to the same extent that it and its predecessors in interest have occupied and used the same ever since their first entry thereon under the leases in evidence in this action."

It was thus admitted and stipulated that this 40-foot strip was held as a lessee in sole possession and to the dispossession of the defendant from the use, occupation, and enjoyment, except as a landlord entitled to rents. Furthermore the court found, and that finding of fact is not assailed or questioned, as follows:

"* * * that, at all times since said March 1, 1927, plaintiff and its predecessor in interest have had, and plaintiff now has, the exclusive possession of said north 40 feet of said Lot 10, and of the improvements thereon, and has continuously used the same for its sole benefit in the conduct of its business to the entire exclusion of defendant therefrom."

It follows therefore that plaintiff was liable for the rents adjudged against it as to the 40-foot strip of land. That such is the rule of law incontrovertibly appears from the authorities cited in the discussion of our next point.

3. This brings us to a consideration of the third question, as to the judgment for rental of the 26-foot strip. This land was not included with the lease. As cotenants, plaintiff and defendant each had the right to the free and unobstructed possession and enjoyment of this land without liability for rents for the use and occupation thereof. That one cotenant is not liable to his cotenant for rents for the occupancy of the common property is elemental. See note in 27 A.L.R. p. 184ff; 39 A.L.R. 408ff. And this is true even though he uses it and derives income therefrom, as where he occupies a house, Brown v. Thrustin, 83 Kan. 125, 109 P. 784, 29 L.R.A., N.S., 238; Kirchgassner v. Rodick, 170 Mass. 543, 49 N.E. 1015; or farms a piece of land and takes the crops Hause v. Hause, 29 Minn. 252, 13 N.W. 43; Kennon v. Wright, 70 Ala. 434; Le Baron v. Babcock, 122 N.Y. 153, 25 N.E. 253, 9 L.R.A. 625, 19 Am. St. Rep. 488; or uses it for storage purposes, Sargent v. Parsons, 12 Mass. 149; Lyon v. Bursey, 42 App. D.C. 519; Ragan v. McCoy, 29 Mo. 356, 365; as long as he does not interfere with the cotenant's right to likewise occupy, use and enjoy. There are, however, certain exceptions to this rule frequently recognized by the decisions; as where he puts the property in possession of a third person from whom he collects rents; Sailer v. Sailer, 41 N.J. Eq. 398, 5 A. 319; O'Bryan v. Brown, Tenn., Ch. App., 48 S.W. 315; Howard v. Throckmorton, 59 Cal. 79; Holmes v. Best, 58 Vt. 547, 5 A. 385; Brayton v. Jackson , 113 Neb. 40, 201 N.W. 653; or where he ousts his cotenant from possession, McGahan v. Nat. Bank, 156 U.S. 218, 15 S.Ct. 347, 39 L.Ed. 403; Carver v. Fennimore, 116 Ind. 236, 19 N.E. 103; Sons v. Sons, 151 Minn. 360, 186 N.W. 811; or where he so uses it as to necessarily exclude his...