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9. Florence Gillmor v. Edward Leslie Gillmor and C. Frank Gillmor,
Supreme Court of Utah (1984)---694 P.2d 1037
1. Fact
Frank Gillmor and Edward Lincoln Gillmor had owned the property made up of several large parcels amounting to some 33,000 acres located in Summit, Tooele, and Salt Lake counties. They had used it for their ranching business. Upon the death of Frank Gillmor, his one-half interest in the property passed in equal shares to the defendant, Edward Leslie Gillmor. Upon the death of Edward Lincoln Gillmor, his one-half interest passed to his daughter, the plaintiff Florence Gillmor. Thus, the defendant, Edward Leslie Gillmor and the plaintiff and C, Frank Gillmor and Florence Gillmor became tenants in common. In May 1979, the plaintiff filed the instant suit for accounting and damages for the defendant’s exclusive use of the property since January 1, 1979. She also filed a separate suit for partition of the common properties.
2. Issue
Whether the defendant’s use of the properties constitutes exclusive use of the properties and thereby exclude the plaintiff from grazing her livestock on those properties.
3. Rule
1) Roberts v. Roberts, Utah, 584 P.2d 378, 380 (1978).
a cotenant may sue for his share of rents and profits from common property if he has been ousted from possession of the common property.
2) Utah Oil Refining Co. v. Leigh, 98 Utah 149, 155, 96 P.2d 1100, 1102 (1939).
Mere exclusive use of commonly held properties by one cotenant is not sufficient to establish an ouster. A tenant in common has the right to use and occupy the entire property held in cotenancy without liability to other cotenants. Each cotenant has the right to "free and unobstructed possession ... without liability for rents for the use and occupation thereof."
3) Heiselt v. Heiselt, 10 Utah 2d 126, 131-32, 349 P.2d 175, 178-79 (1960)
Where a cotenant in sole possession makes repairs or improvements to the common property without the consent of his fellow cotenants, he generally has no right of contribution.
4) Craver v. Craver, 41 N.C. App. 606, 255 S.E.2d 253 (1979)
Compensation for improvements is allowed, however, where the other cotenants have stood by and permitted him to proceed to his detriment.
5) Zanzonico v. Zanzonico, 124 N.J. Eq. 477, 2 A.2d 597 (1938)
A cotenant may, however, be required to contribute his pro rata share of expenses if the cotenant in possession acted in good faith, with the bona fide belief that he was the sole owner of the property, or when the repairs were essential to preserve or protect the common estate.
4. Application
The defendant argues that the trial court erred in finding that the defendant had exercised exclusive possession and excluded the plaintiff from using the land. However, the Supreme court of Utah found that defendant’s use of the land amounted to exclusive possession and effectively prevented the plaintiff from using its ownership on the property on the grounds that the defendant refused to respond the plaintiff’s demand and continued to graze the lands to their maximum capacity.
The defendant’s another argument is that the damage award of $29,760 for the period from June 1, 1980, to December 31, 1980, is excessive in comparison to the damage award from January 1, 1979, to May 31, 1980. However, the court did not recognize the defendant’s argument because the defendant had not challenged the method of valuation in the second phase of trial and the trial court had recognized the value of services provided by the defendant.
Finally, the court acknowledged the defendant’s argument regarding essential costs because the evidence at trial indicated that the repairs were a necessary cost of grazing the livestock and found that necessary costs should be deducted from the damages awarded.
5. Conclusion
Affirmed in part, reversed in part, and remanded for modification of the judgment.
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