Appeal of Kelsey

113 Pa. 119 | Pa. | 1886

Mr. Chief Justice Merctjk

delivered the opinion of the Court,

This bill was to compel partition of lands in which the appellees held the undivided five ninths. The Coart decreed partition, and awarded to the appellants four ninths of the land. Their complaint now is the refusal of the Court to allot to them a proportionate value of the permanent improvements erected on the land by the appellees. It may be conceded that there may be cases of partition in which the improvements should be held to enure to the benefit of all the co-tenants. It is well intimated such might be the case where one co-tenant undertakes to improve the whole estate as by erecting a building covering the whole of a city lot. Here, however, the improvements appear to have been such only as were reasonably necessary for the proper enjoyment of the land by the co-tenant who made them. While the title was in the wife of the appellee yet he was tenant by curtesy initiate, and therefore in making the improvements, presumably for himself and his wife, he cannot bo treated as a mere stranger or volunteer. While a tenaut in common is liable to his co-tenant for repairs absolutely necessary to buildings already erected and in being, which fall into decay; yet he is not liable to his co-tenant for new and permanent buildings which the latter erects thereon: Beaty v. Bordwell, 91 Pa. St., 438; Crest v. Jack, 3 Watts, 238; iiech’s Appeal, 57 Pa. St., 467. Hence, although the appellees owned the larger share of the land, they were powerless to compel the appellants to contribute towards the improvements. The appellees must either forego the proper use and enjoyment of their estate, or else incur the necessary expense to make it productive. They chose to do the latter. The appellants paid nothing towards the improvements, and their estate was not injured by the erection thereof. This is a proceeding in equity. Due regard must be had to the equitable rights of each party. Under the facts of this case it would not be a just application of the rules in equity to give to the appellants any share of the value of the permanent improvements made by the appellees only.

Decree affirmed, and appeal dismissed at the costa of the appellants.