Vi.—: Injuries between Tenants in Common.

Trespasses between tenants in common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i.e. dispossession. Short of that “trespass will not lie by the one against the other so far as the land is concerned”. In the same way acts of legitimate use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the property exists may be wholly converted, in a wider sense, into other forms. There is no wrong to the co-tenant’s right of property until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled to the occupation and use of the tenement or property; he can therefore become a trespasser only by the manifest assumption of an exclusive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass; but the law was settled, in the latest period of the old forms of pleading, that it is. At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass: but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster; unless, of course, the very nature of the property (a coal-mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully undertaken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds.

The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other may have temporary possession or custody, as his bailee or servant, without the power of conferring any possessory right on a third person even as to his own share. In Nyberg v. Handelaar, A. had sold a half share of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence to an action by A. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it determined the bailment, and re-vested A.’s right to immediate possession.