Ord v. Chester

Baldwin, J. delivered the opinion of the Court Cope, J. concurring. We think the judgment in this case should'be affirmed. We can only look to the findings of the Judge in this case to see whether the judgment is right upon the facts, for no legal statement appears in the record. Those findings present the simple question whether a party put in possession or allowed to occupy a portion of premises by one tenant in common can be sued as a trespasser by another tenant in common, without notice to quit or other act showing a termination of this license or tenancy. We have no doubt that one tenant in common may occupy the common premises, and as little that he may permit another person to occupy a part of them; and it is impossible for us to see how that tenant in common could sue such person, so lawfully entering or occupying, as a trespasser, or how his cotenant could maintain such suit. Having entered, or being in possession by lawful right, he cannot, so long as his relation to the owners is unchanged, be turned into a trespasser, and held liable in costs and damages for doing what he was lawfully authorized by those owners or one of them to do.