Gillmor v. Gillmor

A tenant in common ordinarily may occupy and use the entire common property without owing rent to the other cotenants. Mere exclusive use, even when the occupying cotenant derives income from the land, is not itself an ouster so long as the other cotenant remains free to occupy, use, and enjoy the property as well.

But a cotenant is accountable when the cotenant in possession affirmatively excludes another cotenant or uses the property in a way that necessarily prevents the other cotenant from exercising her rights. For an accounting of rents and profits, the required showing of ouster is less demanding than the showing required to establish adverse possession.

The trial court did not use the word “ouster,” but its findings were legally sufficient because they stated that Edward exercised exclusive possession and use and excluded Florence from the common property. The substance of the findings, rather than the particular label used, controlled.

Florence clearly notified Edward that she intended to graze livestock in accordance with her ownership interest and asked him to alter his operation to permit that use. Edward did not agree to modify his operation; instead, he continued grazing the land at its maximum capacity. Adding Florence's livestock would have overgrazed the range, and Edward admitted he would have sought an injunction if she attempted to do so. Florence was not required to use force or damage the common property by adding animals to an already fully used range before seeking relief.

The ordinary measure of damages between cotenants is the rents or profits received by the cotenant in possession. Florence calculated the value of Edward's use through Animal Unit Months, or AUMs, representing the amount of feed consumed by one cow or five sheep in one month. Edward did not challenge the AUM method itself in the second phase of the case.

Edward argued that the court should have reduced the second award to 69 percent of Florence's requested amount because the court had awarded roughly that percentage in the first phase. The Court rejected that argument. The first award apparently reflected the trial court's consideration of Edward's services in preserving the ranching operation, and Edward did not contend that those services should also be credited in the second phase. Nothing required the court to apply the same percentage reduction to a different period.

Edward also argued that damages should exclude livestock use while his animals moved across third-party land under trail or trespass rights. The Court rejected that distinction because the trail rights were appurtenant to the Gillmor land. Use of those rights was therefore properly treated as part of Edward's use of the common estate.

Edward's field notes indicated that his sheep spent substantial time on adjoining non-Gillmor land, which could have reduced the claimed AUMs. But the trial judge was entitled to credit Edward's interrogatory answers over the field notes when the evidence conflicted. That credibility determination would not be disturbed on appeal.

A cotenant who voluntarily makes improvements without the consent of the other cotenants generally cannot demand contribution as a matter of right. An exception may apply where the work was necessary to preserve or protect the common estate, or where other equitable circumstances justify contribution.

More specifically, when an out-of-possession cotenant obtains an accounting or damages from the cotenant in possession for the value of use, occupancy, or rents, the occupying cotenant is entitled to credit for reasonable necessary repair and maintenance expenses. The evidence showed that the fence and ditch repairs were necessary costs of grazing livestock on the common property.

Because the record supported an offset for those necessary repairs, the Court affirmed the judgment in part but reversed and remanded for modification of the damages award to account for the appropriate repair expenses.