Cosgriff v. . Foss

Vann, J. The question presented by this appeal is whether a tenant in common, who is also a lessee of his cotenant, 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 cotenant, 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 cotenant. 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 cotenant 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’s Eq. Jur. § 1235; Knapp on Partition, 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 preservation 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 limi *109 ted to 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, 32 N. W. Rep. 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.) 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 Ashmead, 136, 139.) Chancellor Keht 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, 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; Luck v. Luck, 113 Pa. St. 256; Jones v. Jones, 23 Ark. 212.) 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 cotenant who has made substantial improvements upon one parcel, is usually allotted the part that he has enhanced in value or so much thereof as represents his share *110 in the whole tract. (Freeman on Cotenancy and Partition, § 509; 17 Am. & Eng. Enc. of 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 drainage, the opening of mines or quarries, or the making of changes that are in no sense designed to protect or preserve the property, but simply to improve it and increase its value, do not warrant the court in requiring a cotenant who has not consented to contribute to the expense. This is just, as an extension of the rule from repairs to general improvements, in the nature of new erections, might enable one cotenant to “ improve ” the other out of his share in the property. The case of Green v. Putnam (1 Barb. 500) is sometimes cited as an authority sanctioning an allowance for the erection of a new building without consent. In that case, however, the plaintiff had been consulted and had consented to the construction of a smaller building, but objected when it was ascertained that a larger one was in process of erection. The allowance made was “limited to the sum necessary for erecting the smaller building, and no relief was granted for the amount expended without the plaintiff’s consent.” The leading cases in this state are Scott v. Guernsey (48 N. Y. 106) which is relied upon by the respondents, and Ford v. Knapp (102 N. Y. 135) which is relied upon by the appellant. In the former case two remaindermen, without the consent of the others, but with the consent of the life tenant, erected buildings upon the premises, under an agreement with the life tenant that they might put up the buildings and receive the rents. One building erected in 1833 increased the value of the land by $750, and another erected in 1841, by $200. In 1854, when the life tenant died, the rents received had largely exceeded the value of the buildings and the interest on the investment. It was held that the remaindermen who thus improved the property *111 were not entitled to any compensation therefor, and, upon partition, could not exact reimbursement from, or claim a lien upon, the shares of their cotenants. The court said: “ There was no consent, mistake, or other equitable ground in this case for relieving the party who made his investment with full knowledge of the facts, voluntarily, and without any inducement offered by other cotenants. Had the appellants offered to share their rents, upon being paid a due proportion of the value of the improvements after the termination of the life estate, it might have afforded a better ground to claim compensation. The appellants are not within the reason of any of the adjudged eases, where relief has been granted in partition for money expended in improvements by one of several tenants in common.” In Ford v. Knapp “ the defendants were tenants in < ommon with one Whittaker of a mill property badly run down, and out of repair.” Whittaker’s interest was sold upen execution to the defendants, “but subsequent judgment creditors redeemed and acquired the title of the debtor.” “ During the fifteen months between the sale, and redemption, the defendants expended a large am vunt upon ” a gristmill on the premises. Some of the machinery, adapted to and once used for merchant milling, was out of date and not worth repairing, while that necessary for custom work was still in use, but “ dilapidated and inefficient.” The dam was repaired, a new water wheel matl-e and the machinery so changed as to do good custom work, which was classed by the referee who decided the case as repairs, “ while the addition to the buildings and the introduction of new machinery and appliances for a merchant mill he classed as imj>rovements. These repairs and improvements largely increased the market value of the property. Before they were made, a generous estimate of that value did not exceed $8,000, while on the sale in partition it brought about double that amount.” The Supreme Court refused “ any allowance either for repairs or improvements.” This court, referring to Scott v. Guernsey, said: “Here were reasons enough for denying any equity to the improving *112 tenant, and the ease stands solidly upon its facts and is not open to criticism. But it does not deny the duty of a court of equity in a proper case to' give its relief upon condition. of an allowance for improvements, and does not undertake to specify all the cases in which such equity shall be recognized. Mor shall we undertake any such dangerous or impossible effort. The authorities leave us at liberty to consider whether, upon the facts and circumstances of this particular case, the improving tenant ought to be protected, and furnish us the power to grant the protection if it may justly be demanded.” After alluding to some of the facts of the case then in hand, the court continued : “ The defendants acted in the presence of a peculiar and unusual emergency; they acted in entire good faith; the repairs were necessary and not merely a venture or speculation, and the improvements were in the line of restoration and not of new and strange enterprise. What they did-was natural and normal to the use and character of the property and such as joint owners of equal ability might be expected to join in making. They offer to share in the increased income thus secured, and in every respect appear to have acted fairly.” The coii:*t sent the case back for a division of the proceeds of the sale-, according to the principles stated in the opinion, and for an accounting of the income and profits which the defendants offered to make. We do not regard the two cases thus reviewed as in conflict. In the one special equities existed, 'while in the other they did not, and judgment went accordingly. In the earlier case those who made the improvement did' it as a business venture, and they had received back from it not\only principal arid interest, but also a large profit, which they diid not offer to share with their cotenants. In the later case thosje who made the improvements did not make them as a business venture, but to save the property and prevent the “ business and custom ” of the mill from drifting “ into other hands.” What they did was “ in the line of restoration,” not of independent construction, and when they had done it and had doubled the value of the property, they offered to share the increased *113 profits with their cotenants. The improvements were made upon a mill and mill dam, which, owing to their peculiar nature, seem always to have appealed strongly to courts of equity for aid through contribution toward repairs and reasonable improvements, so as to keep pace with the times, accommodate the public and prevent loss of custom. In the case before us we find no such equitable strength in the claim of the appellant. He sustained the double relation to his cotenants of tenant by lease and tenant in common. Under the former relation he was entitled to no repairs, but was bound by a covenant in the lease to make such as would keep the premises in their normal condition, except depreciation by use and damages by the elements. The improvements were made mainly for the purpose of extending his business and increasing his sales, in which his cotenants had no interest. He had the right, by express contract, to remove all his structures during the term of his lease. The nature of the property did not permit decay, and there was no controlling necessity for making the changes and additions. If they had not been made the premises would not have depreciated in value. Some of the work was done after this action was commenced and a part even after the trial was in progress. It does not appear that the appellant offered any share of the profits to his cotenants, or to what extent the value of the premises was increased, or, unless inferentially, that they would sell for any more on account of the improvements. His erections were in the'nature of new and independent construction to enable him to quarry more rock and sell it, and thus, fro tanto, he consumed the property. They were not “ in the line of restoration,” but of a business venture. We know of no well-considered case in this state that would authorize an allowance for improvements under these circumstances. It would be a dangerous extension of the rule governing the subject, which is always applied with caution, to permit one cotenant to run the other in debt, against his will, for unnecessary improvements. Equity requires contribution *114 from tenants in common only to prevent injustice, and, unless tlie rule is kept well in hand, it is liable to cause more injus: tice than it prevents. The judgment should be affirmed, with costs. All concur. Judgment affirmed.