from such wrongful act.1 Where it is necessary to make repairs or improvements on the premises in order to prevent waste, one cotenant can make such repairs or improvements, without asking the consent of the other cotenants, and each can be held for his proportionate share of the expenses. The duty of cotenants to contribute to such expense, is equivalent to that of joint obligors where one discharges the obligation for the whole, and as it would be inequitable to hold one cotenant for the entire expense of preserving the property, where the obligation extends alike to all, the law will affix the obligation on the several cotenants to contribute their respective shares of the expense. But unless such expense is necessary in order to prevent waste, one cotenant, to be held for his share of such improvements, must expressly, or impliedly, consent to such expense. One cotenant cannot acquire, by purchase, an adverse or superior title, and set it up against his cotenants, unless they refuse to contribute their share of the expense for procuring the paramount title. It is held

1 North Penn. Coal Co. v. Snowden, 42 Pa. St. 488; Maden v. Veeners, 5 Beav. 503; Clegg v. Clegg, 3 Giff. 322; Clark v. Jones, 49 Cal. 618. And see Taylor's Land. & Ten., § 179, p. 207. A lessee becomes tenant in common. Barnum v. London, 25 Conn. 137, Taylor's Land. & Ten., supra.

2 Taylor's Land. & Ten., § 179. But see contra, Allen v. Barkley, 1 Spears (S. Car.), Eq. 264. Taxes paid, or other necessary expenses, can be recovered. Glos v. Clark, 97 Ill. App. 609.

3 Mallett v. U. S. G. & S. Min. Co., 1 Nev. 188; Chase v. Savage Sil. Min. Co., 2 Nev. 9; B. & W. L. C. 331.

Taylor's Land. & Ten., § 179, p. 208. And see as to expenses for legal services, Allen v. Barkley, supra.

5 Duff v. Wilson, 72 Pa. St. 442; Taylor's L. & T., § 179. And see as to relocation of claim on public land, Strong v. Ryan, 46 Cal. 33; Mor. Min. Dig. 374. "A co-tenant who purchases a conflicting title, or his successor having notice of all the facts, will not be permitted, in the contest over the title, in which the other co-owners claim that the purchase of the conflicting title inures to their benefit, to question the common title of the co-tenants." Cedar Canyon Consol. Min. Co. v. Yarwood (Wash. 1902), 67 Pac. Rep. 749.

to be acquired by one for the benefit of all,1 and equity would not permit one cotenant to hold such title for his own benefit, and to the exclusion of the others, whether the purchase was made in his own name or by some third party for his benefit.2 But the different tenants must elect to participate in the benefits of the purchase, and offer to contribute their proportion of the expense, before they can be held to have acquiesced in the purchase, and if they fail to make such election or offer to contribute their share of the expense, they will be deemed to have repudiated the entire transaction and cannot then come in for their share of the benefits accruing from the purchase.3

Disseisin

§ 156. Same Liability for rents and profits. The possession of one cotenant is the possession of all, and to create a title by adverse possession in any one of several cotenants, he must obtain exclusive possession and retain the same until the rights of his cotenants are barred by the statute of limitations. Any act which is inconsistent with the joint ownership of possession of all the cotenants, would be considered a denial of their title; "

1 Tiedeman on R. P., § 252.

2 Van Horn v. Fonda, 5 Johns. Ch. 388; Taylor's Land. & Ten., § 179, p. 208. "Where one of several co-tenants of a mining claim attempts to relocate the same, his act inures to the benefit of his co-tenants." Yarwood v. Johnson, 70 Pac. Rep. 123.

s Mandeville v. Solomon, 39 Cal. 125-133; Taylor's Land. & Ten., supra. Co-lessees must contribute to the expenses. Beck v. O'Connor, 21 Mont. 109. And a refusal only makes the operating tenant liable for royalty. Schreiber v. Nat. Co., 21 Pa. Co. Ct. 657.

4 Tiedeman on R. P. 251, p. 166; Brown v. Hogle, 30 Ill. 119; Catlin v. Kidder, 7 Vt. 12; Thomas v. Hatch, 3 Swans. 170; Newcomb v. Cox, 66 S. W. Rep. 338. "Where a tenant in common takes possession of a tract of land, in which he has an undivided interest, unless he manifests a contrary intention he is presumed to hold possession as well for his co-tenants as for himself." Stevens v. Martin, 68 S. W. Rep. 347.

5 Rider v. March, 46 Pa. St. 380; Great Falls Co. v. Worster, 15 N. H. 412; Miller v. Miller, 60 Pa. St. 10; Tiedeman R. P., supra.

but before such denial could operate to bar the rights of the other tenants, they must have had knowledge of the fact that their title was denied by the other cotenant.1 A refusal to share in the rents and profits is equivalent to a denial of the rights of the others, and for any resistance of their right to enter into possession, they can have either trespass or ejectment at their election for such ouster; 2 but neither action can be maintained against a cotenant, as long as they both remain in possession, and the acts on the part of the wrongdoer does not amount to an eviction, or an injury to some part of the common property. Where one cotenant, in possession of the land, receives money for mineral taken from the same, the other cotenants are entitled to their portion of the proceeds of such sale. One cotenant, however, is not liable for royalty through his own use and occupation of the land, unless there is an express agreement to

3

1 Forward v. Deltz, 32 Pa. St. 69; Meredith v. Andrews, 7 Ired. L. 5; Gray v. Givens, Riley Ch. 41; Abbercrombie v. Baldwin, 15 Ala. 763. The possession of one is the possession of all until a denial of their right is brought home to them. Newcomb v. Cox, 66 S. W. 338 (Tex. 1902).

2 Lawton v. Adams, 29 Ga. 273; McGill v. Ash, 7 Pa. St. 397; Austin v. Rutland Ry., 45 Vt. 215.

3 Filbert v. Hoff, 42 Pa. St. 97; Jewett v. Whitney, 43 Me. 242; Silloway v. Brown, 12 Allen, 37; Bennett v. Bullock, 35 Pa. St. 364.

4 Hall v. Fisher, 20 Barb. (N. Y.) 443; Huff v. McDonald, 22 Ga. 131; Allen v. Barkley, 1 Spears (S. C.), Eq. 264. Abbey v. Wheeler (N. Y. 1901), 170 N. Y. 122; 62 N. E. Rep. 1074. "In an action by a tenant in common of mining lands for an account of the rents and profits received by his co-tenant, testimony as to the advantages which would result from mining and draining the land by machinery is not within the issues." Gregg v. Roaring Springs Land & Mining Co., 70 S. W. Rep. 920 (Mo. App. 1902). "A tenant in common of mining land may sue a co-tenant who has taken possession for an accounting, where such cotenant has worked the mines and sold the deposits, since the action is not one to recover for the use and occupation or for rents and profits, but for a part of the estate itself which the co-tenant has taken and carried away." Abbey v. Wheeler, 62 N. E. Rep. 1074; 170 N. Y. 122.

2

that effect by the cotenants; and if he is permitted to use the premises without any such agreement with his cotenants, he cannot afterward be held to pay them for such use, for he is only exercising his common right of ownership. But where there is someone else in possession of the land, and one cotenant receives rent or royalty from the tenant in possession, he can be held to account to the other tenants for all the royalty received by him, over and above his portion of the same.3

§ 157. Liability to third persons. It follows from the consequent liability of third persons to lessor and lessee, for injures resulting to the demised premises from their wrongful act, that either the lessor or lessee can be held responsible to third persons for injuries resulting from a defective condition of the demised premises, where the injury can be proximately traced to the negligence of either, and under certain circumstances both can be held responsible. Generally speaking, the lessee alone can be held liable for injuries occurring after he has entered into possession, and the lessor's responsibilities are suspended after

1 McAdams v. Hawes, 9 Bush (Ky.), 15. But see contra, Early v. Friend, 16 Gratt. (Va.) 21.

2 Scott v. Guernsey, 60 Barb. 163; Kline v. Jacobs, 68 Pa. St. 57; Keisel v. Ernest, 21 Pa. St. 90; McMahon v. Burchell, 2 Phil. Eq. 134; Pico v. Columbet, 12 Cal. 414. But see contra, Pico v. Columbet supra; Tiedeman on R. P., § 255, p. 170, and cases cited; Early v. Friend, 16 Gratt. (Va.) 21; Holt v. Robertson, McNull, 475.

3 Barnum v. London, 25 Conn. 137; Job v. Patton, L. R. 20 Eq. 84; Hall v. Fisher, 20 Barb. (N. Y.) 443; Early v. Friend, 16 Gratt. (Va.) 21; Coleman's App. 62 Pa. St. 252; B. & W. L. C. 275; Huff v. McDonald, 22 Ga. 131; Pico v. Columbet, supra; Gowan v. Shaw, 40 Me. 56; Webster v. Calef, 47 N. H. 289; Hayden v. Merrell, 44 Vt. 336; Izard v. Bodine, 11 N. J. Eq. 403.

4 Rider v. Smith, 3 Tenn. 765; Proctor v. Harris, 4 C. & P. 337; Norton v. Wiewolf, 26 Barb. 618; Congreve v. Smith, 18 N. Y. 79; Godley v. Haggerty, 20 Pa. St. 387; Irwin v. Wood, 51 N. Y. 224; Whalen v. Gloucester, 4 Hun, 24.

§ 157 the commencement of the term; but where the premises were in a defective condition at the time of the demise, and the lessee has used the premises for the ordinary purposes for which the same were let, if he could not have avoided the injury by the exercise of reasonable care, the lessor would still be liable, notwithstanding the lease. So the lessor can be held responsible for the subsequent condition of the premises if he should renew the lease, or grant a new lease during the continuance of the nuisance; 3 or if the injury results from his failure to perform any obligation which he had voluntarily assumed.* But where the injury resulting from the nuisance could have been avoided by the exercise of reasonable care on the part of the lessee, or where the nuisance arises from a use of the premises not contemplated by the lease, the lessee alone could be held responsible for such injury, for the reason that the injury is produced by his own wrongful act.5 And if the premises are not radically defective at the time of the lessee's entry, and the lessee is under a legal duty to repair, he alone can be held responsible for an injury resulting from a failure to repair; but before he could be charge him with such

so held, it would be necessary to

6

1 The lessee is the party presumptively liable. Samuelson v. Cleveland Iron Mining Company, 49 Mich. 164. See also Watson v. Moulton, 100 Ill. App. 560.

2 Godley v. Haggerty, supra; Cheetham v. Hamon, 4 Term. 318; Wait's Act. & Def. (Vol. IV.), p. 256. See Murphy v. Century Co., 90 Mo. App. 621.

3 Rex. v. Pedley, 1 A. & E. 827; Waggoner v. Germaine, 3 Denio, 306; Pichard v. Collins, 23 Barb. 444.

4 O'Brien v. Copwell, 59 Barb. 497; Kahn v. Love, 3 Oregon, 206; Taylor's Land. & Ten., § 175, p. 194 and note.

5 Taylor's Land. & Ten., supra. The lessor's liabilities are, except as above enumerated, suspended, whenever lessee enters into possession. Payne v. Rogers, 2 H. Bl. 350; Leslie v. Pounds, 4 Taunt. 649; Cheetham v. Hamon, supra.