Chesley v. Thompson

By the court. It is contended, that one tenant in common ° ⅜ 4 cannot maintain an action against another ; and this is true t0 a certain extent; but the rule is by no means broad enough to embrace the present case. For it has been held, that if two several owners of houses have a river in common between them, and one of them corrupt the water, the other shall have an action on the case. Coke Littleton 200, b. And it seems, that one tenant in common may have case for waste against another. 8 D. & E. 145, Martyn vs. Knowles. —4 East 110, Heath vs. Hubbard.—Butler’s N. P. 34.—2 Saund. 47, f. g.—1 Chitt. Pl. 180, 170, 155.—15 John. 179.—3 ditto 175.—2 ditto 468. In this case, the mill has been destroyed by the negligence of the defendant, and we have no hesitation in overruling this objection. It is further contended, that as the defendant is a tenant in common with the plaintiffs, and as all the tenants in common cannot join in bringing the action, each must have his several remedy. Had the mill been burnt by the negligence of a stranger to the title, there is no doubt, that all the owners might have joined in the action. 1 Chitt. 51.—2 Wilson 414, Weller & a. vs. Baker. In Daniels & a. vs. Daniels, (7 Mass. Rep. 135) case was •maintained by several tenants in common against co-tenants, for the destruction of title deeds ; and we are of opinion, that this objection also must be overruled.