100 Am. Dec. 658 | Va. | 1869
delivered the opinion of the court.
The court is of opinion that every tenant in common has a right to possess, use and enjoy the common property without being accountable to his co-tenants for rents or profits, except under the statute for so much as he may receive beyond his just share or proportion. Code, p. 586, ch. 145, § 14. And although it may be best for the interests of all the tenants in common to use the common property jointly, by means-of a contract of partnership between them, yet the individual owners have a right to decide that question for' themselves,' and are not bound to enter into such contract of partnership; but may possess, use and enjoy the property severally, accounting to their co-tenants for so much of the rents and profits as they may receive beyond their just share and proportion as aforesaid. Therefore the appellee, Alexander Pierce, was-not bound to enter into copartnership with his co-tenants in the use and operation of the lead mines in question; but had a right to use and enjoy the property separately on the conditions aforesaid.
The court is further of opinion, that although, as a-general rule, where one tenant in common occupies- and uses the common property to the exclusion of his co-tenants, or occupies and uses more of the common property than his just share or proportion, the best measure of his accountability to his co-tenants may be-their shares or proportions of a fair rent of the property so occupied and used by him, according to the-principle laid down in the case of Early & wife v. Friend, &c., 16 Gratt. 21, 52. Yet, as was said in that case, “there maybe peculiar circumstances in a case, making it proper to resort to an account of issues,.
The court is further of opinion that in settling the account of the appellee Pierce the commissioner properly gave him credit for improvements made by him, and the Circuit court therefore did not err in overruling the appellants’ 1st exception to the report of the said commissioner. The said Pierce having a right as tenant in common to occupy and operate the mine, had also a right to make such improvements as were necessary for that purpose and to deduct the cost of such improvements from the proceeds of the operation. It does not appear that he made any improvements Which were not necessary or were not of permanent value to the estate, or that he incurred any unnecessary expense in making them. All of them were uecessary to his convenient occupation and use of the mine, except perhaps the small expense incurred in fixing up a building already on the land, for a store; and if it be true as seems to be the case, that good management in conducting the operations of a mine requires that a
The court is further of opinion that the Circuit court did not err in overruling the appellant’s second exception to the commissioner’s report, being “to the whole frame and principle of the report.” Seasons have already been given to show that in this case it was not “the duty of the commissioner to fix a proper cash value per ton on the manufacture of lead,” with a view of settling the account upon that basis, but to go “into a detailed statement and account of the transactions and expenditures” of the parties, with a view to a fair and just settlement between them on account of profits actually received. The chief com
The court is further of opinion that the Circuit court did not err in overruling the appellants’ third exception to the commissioner’s report, “because he has not charged the defendant Pierce with the sum of $920, the damages recovered against the complainants upon the dissolution of an injunction.” The ground of this exception is, that these damages were allowed by the jury in lieu of profits which Pierce would have made but for the injunction; and as the profits would have belonged to all the tenants in common, so ought the damages. But we cannot tell what influenced the jury in allowing damages in the action brought by Pierce upon the injunction bond. We cannot presume that they intended to compensate, not only the loss which Pierce alone sustained by the injunction, but also the loss which the appellants themselves, who were in effect the defendants in the action, sustained by their own injunction. We cannot presume that the
The court is further of opinion, that the Circuit court did not err in overruling the appellants’ fourth exception, which is “to the allowance to Pierce for the amount of claim on George Earp of $2,780, upon the ground that it was lost.” Without reviewing the evidence in regard to this claim, it is enough to say that we do not consider it sufficient to show that the claim was lost by the negligence of Pierce. On the contrary, we think it shows that the claim was not lost by such negligence.
The court is further of opinion, that the Circuit court did not err in overruling the appellants fifth and last exception, which is to the allowance of the salary, board &c. of agents employed by Pierce. The ground of this exception is that these agents were employed as well about the individual business of Pierce as in his mining operations. But the salary of only one agent during the period of those operations is allowed by the commissioner, and it appears that at least one agent was necessary and was employed in those operations during said period.
There is another assignment of error in the petition of the appellants to the District court for a supersedeas
The commissioner having taken the account, and ascertained a balance to be due thereon by the appellants to the appellee, made his report, in which this passage occurs: “ The complainants will hereafter render an account of a remnant of the business still left in their hands.” The Circuit court overruled all the exceptions to the report, confirmed the same, and rendered a decree for the payment of the said balance, but took no notice of what was said in the report in regard to the future account to be rendered by the complainants as before stated, although the decree was final. The District court was of opinion that the Circuit court should not have proceeded to a final determination of the cause, but should have confirmed the •said report and recommitted the cause to the commissioner, with instructions to state and settle the matters of account between the parties, referred to in his report as not settled, but not to reopen or disturb the account so far as already settled, and make report of
Decree aeeirmed.