by reason of reckless or unskillful management of the business by the tenant conducting it. There may be cases in which the Courts will impose damages for an abuse of his right by a co-tenant in occupation, or interpose to prevent such abuse. But here the theory of plaintiffs is that defendant could not extract ore from the mine without committing waste, because such extraction is a destruction of the very substance of the estate; an irreparable injury to the inherit

ance.

In view of the character of the property, and of plaintiffs' implied assent to its sole occupation by defendant for mining purposes, we regard the right of the latter to the proceeds of its operations as partaking of the nature of an usufruct; the appropriation of the net returns as a legitimate perception of the profits, and its acts of mining as not impairing or consuming the estate to any greater extent than must be presumed to have been intended to be allowable by each of the parties in interest.

Murray v. Haverty (70 Ill. 320), supposing it to have been correctly decided, does not entirely sustain the view of counsel for appellants. That decision was based upon a statute which authorized a tenant to bring trespass or trover against his co-tenant who should take away, destroy, lessen in value, or otherwise injure" the common property. The section of our Code does not declare that co-tenant who "shall take away," etc., shall be guilty of waste. The question waste or no waste is left to the Courts. Besides, in Murray v. Haverty the Court had already decided the case by holding certain evidence, as to license, inadmissible under the defendant's plea.

Counsel quote from Freeman on Co-tenancy: "In all cases where a co-tenant practically destroys the estate or some part thereof, trespass may be sustained by the injured co-tenant. (Sec. 302.) But this is to be taken with other portions of the same work where the distinction is pointed out between an appropriation of the proceeds, rents, profits or income, and the destruction of the estate itself. (See, also, Waterman on Trespass, 947.) The tenant-incommon of a mine may occupy it for the purpose contemplated by all, even though a portion of the soil or ore be removed. Each tenant has the right to use the mine, and, as was intimated by the Supreme Court of Pennsylvania, so long as an estate is used according to its nature, "it is no valid objection that the use is consumption, and it is no fault of the tenant that it is not more endurable.' (Irwin v. Covode, 24 Penn. St. 162.) The taking of ore from the

mine is rather the use than the destruction of the estate— within the meaning of the general rule. The results of the tenant's labor and capital are in the nature of proceeds, or profits, the partial exhaustion being but the incidental consequence of the use.

It is not necessary to examine in detail the many cases cited by appellants, as in none are the facts like those of the case at bar. We shall refer to a few of them.

Delaney v. Root (99 Mass. 546) was an action of trover for the conversion of personal property. Stetson v. Delaney (51 Me. 434) simply decides that, under a statute of Maine, a tenant for life, who neglected to pay taxes assessed upon the estate during his tenancy, and thereby subjected the estate to a sale, was liable to an action by the reversioner, either of waste, or of case in the nature of waste. Maddox v. Goddard (15 Me. 219) and Symonds v. Harris (51 id. 14) were actions of trespass quare clausum for the destruction of a mill, and for the disseverance and removal of machinery from a mill; Blanchard v. Baker (8 id. 253) trespass on the case for a similar injury to common property; McDonald v. Trafton (15 id. 225) has no bearing upon any question involved in the case before us, and Hubbard v. Hubbard, id. 198, was a statutory action of trespass "for strip and waste" of timber.

As to the destruction of trees charged in the complaint. herein, it has been expressly decided in California that, in the enjoyment of his legal rights in the common property, each co-tenant may cut timber, and use or dispose of it, at least to an extent corresponding to his share of the estate. (Hihn v. Peck, 18 Cal. 640.) In the case before us there is neither averment nor finding that defendant has cut or consumed more than its share. Besides, the use of the trees was merely incidental to the mining operations of defendIn Pennsylvania it is held that the cutting of timber, to be used in a mine by a tenant for life, whose mining is not waste, is not itself waste. (Neel v. Neel, supra.) Nowhere is it held to be waste for a tenant-in-common of a farm to cut wood necessary to the use of the farm.

ant.

It was, indeed, held in New York by the Supreme Court that the cutting down of timber trees by one of several cotenants, upon land whose principal value consisted of the growing timber, was waste, for which the other co-tenants could recover damages under a clause of the revised statutes of that State. (Elwell v. Burnside, supra.) But, aside from the rule to the contrary laid down in Hihn v. Peck, supru, plaintiffs have no averment that the quicksilver mine is.

principally valuable" because of the trees growing from its surface.

And here, it may be added, applying the rule of Hihn v. Peck, it would seem each tenant-in-common of a mine is at least entitled to take out his share of the ore. That neither of the tenants can "look into the ground" may be a reason why a Court of equity should order an account to be taken, but ought not to operate a prohibition upon the working of the mine by anybody.

II. Ought the Court below to have enjoined defendant from proceeding with its mining?

"In case of joint-tenants and tenants-in-common, with respect to whose acts of waste the common law has provided no remedy, Courts of equity will interfere when it appears that waste had been committed or threatened by one tenantin-common who has become possessed of the whole premises." (Taylor's Landlord and Tenant, 694.) This general proposition may be conceded to be correctly stated, but the very question here is, Has waste been committed? At the common law the tenant had no redress for acts of admitted waste committed by his co-tenant. But the latter might be restrained in equity from felling ornamental trees, or from doing other things amounting to wanton and destructive waste, which were called "equitable waste," because allowable at law. By our statute, however, a tenant may recover damages of his co-tenant in every case of waste. Holding as we do that the acts of defendant were not, under the circumstances, wanton or destructive, or any waste, it follows plaintiffs were not entitled to an injunction.

Counsel rely upon the opinion of the Court of Chancery of Upper Canada, in Dougall v. Foster (4 Grant's Ch. 319), where it was held-Esten, V. C., diss.-that one tenant-incommon could be restrained at the suit of his co-tenant from digging earth for bricks on the joint property. There the bill alleged that the portion of the lot from which the clay was being excavated and carried away was very valuable for building purposes, and that (with reference to such purposes?) the lot had greatly deteriorated in value by reason of the acts of defendant. In his opposing affidavit defendant did not deny the first of these alleged facts at all, and did not expressly deny the last. The Chancellor said: "It is quite true that this Court refuses to restrict a tenant-in-common from the legitimate enjoyment of the estate, because an undivided occupation is of the very essence of that sort of title (C. Lit. 180), and to interfere with the legitimate exercise of that right would be to deny an essential quality of

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the title." The Court held that the legitimate enjoyment of a building lot, "within the limits of the town of Bellville," was to build upon it, or improve or occupy it as town property is usually improved and occupied, and that to dig holes in it, or degrade it below the surrounding level, was not such legitimate enjoyment. To repeat the language of Roane, J. (Findlay v. Smith, supra), The law on this subject must be applied with reasonable regard to circumstances." If it had appeared in Dougall v. Foster that the common property was valuable only as a brickyard, and was acquired by the co-tenants for that purpose, the case would have approximated more closely to the one at bar. By the laws of the United States the mining lands are disposed of under laws differing from those through which agricultural lands may be acquired. As a condition to their acquisition by individuals it is requisite that the locators shall have done mining work of a certain value. They are disposed of and acquired for the purpose of mining, and the application of them to that purpose by one tenant-in-common is not waste of which the others can complain.

Hawley v. Clewes (2 John. Ch. 122) was a bill for partition and for cutting down and carrying away timber not wanted for the necessary use of the farm. The injunction was granted, in view of the special character of the case, and the insolvency of defendant, and on the ground that the excessive cutting of timber was destructive, "and not within the usual and legitimate exercise of enjoyment. Chancellor Kent added: "The remedy is peculiarly appropriate and proper pending a partition of the very land."

In Hale v. Thomas (7 Ves. 589), Lord Eldon, after saying: "I never knew of an instance of an application to stay waste by one tenant-in-common against another: one tenant-incommon having the right to enjoy as he pleases," granted an injunction against cutting "saplings or any timber trees or underwood at unseasonable times "-that being destructive. As was said by Esten, V. C., in Dougall v. Foster, it was malicious waste. Twort v. Twort (16 Ves. 128) was a case where one tenant-in-common was an "occupying tenant" to another. In Baker v. Whiting the tenant-in-common was the agent of his co-tenants, and the case does not assist the present investigation. (3 Sumner, 485.)

It is said by Eden (Waterman's Eden on Injunctions, Vol. 2, 3d Ed. 210), the instances in which injunctions have been granted between tenants-in-common against committing waste, are few. The application has always been refused, unless attended with peculiar circumstances. In Smallman

4

V. Onions (3 Brown's Ch. 510) an injunction was granted against the cutting of timber, on the ground that the parties were only equitable tenants-in-common, the legal title being in a trustee; that therefore the person who was committing the waste had no title to the possession, and cutting the timber was a trespass upon the trustee; also that the trespasser was insolvent. And in Goodwyn v. Spray (2 Dick's Ch. 667), the Lord Chancellor denied an injunction prayed for by one tenant against his co-tenant cutting timber, saying the only remedy the plaintiff had was to get a partition. In the absence of allegations, proofs or findings of willful injury, or of unnecessary injury or destruction caused by the negligence of unskillfulness of defendant, the plaintiffs were not entitled to an injunction.

III. Is this an action for an accounting?

It is established in this State that, in ordinary cases, an action at law cannot be maintained .by a tenant-in-common against a co-tenant in sole possession of the premises, to recover a share of the profits derived from the estate by means of the labor and money expended by the party in occupation. The occupation by one tenant, so long as he does not exclude his co-tenant, is but the exercise of a legal right. The money he invests at his own risk; if his transactions result in a loss he cannot call upon his co-tenant for contribution, and if they result in a profit his co-tenant is not entitled to share in such profit. (Pico v. Columbet, 12 Cal. 414.) The demand of the plaintiffs is not for a sum due by way of rent from defendant as the tenant of their interest, nor is it for a proportionable share of an amount received by defendant for the use and occupation of the premises by third persons, nor is an account sought as an incident to a claim for partition. It is not for their part of moneys received by defendant which belonged to all the tenants-in-common, nor is it based upon an allegation of any of the exceptional facts mentioned in Pico v. Čolumbet, in Goodenow v. Ewer, or in Abel v. Love. (16 Cal. 461; 17 id. 233. See, also, Howard v. Throckmorton, 59 Cal. 89.)

Nor is the present an action brought to recover a portion of the profits acquired by the expenditure of defendant's money, treating it as the agent of plaintiffs in developing the common property. There is no pretense of an averment of any actual contract between plaintiffs and defendant, whereby the latter was authorized to act for the former. On the contrary, it is expressly alleged in the complaint, that the acts of defendant were against the will of plaintiffs, and without their consent.