This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
St. Rep. 689, 11 S. E. 1066. the conveyance was regarded as vesting the grantee with the grantor's interest in the entire tract.
52. Supra, this section, note 44.
53. Starr v. Leavitt, 2 Conn. 243, 7 Am. Dec. 268; Butler v. Roys, 25 Mich. 53; Primm v. Walker, 38 Mo. 98; Markoe v. Wakeman, 107 111. 262; Green v. Arnold, 11 R. I. 364, 23 Am. Rep. 466; Shepherd v. Jernigan, 51 Ark. 275, 14 Am. Rep. 50. As opposed to such a distinction, see Thompson v. Barber, 12 N. H. 565; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470; Marks v. Sewall, 120 Mass. 175.
54. Gordon v. City of San Diego, 101 Cal. 522, 40 Am. St. Rep. 73, 36 Pac. 18; Hartford & S. Ore Co. v. Miller, 41 Conn. 112; Sewell v. Holland, 61 Ga. 608; Dall v. Brown, 5 Cush. (Mass.) 289; Barnes v. Lynch, 151 Mass. 510, Pellow v. Artie Iron Co., 164 Mich. 87, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827, 128 N. W. 918; Great Falls Co. v. Wooster, 15 N. H. 412; Crocker v. Tiffany, 9 R. I. 505; Worthington v. Staunton, 16 W. Va. 208; Eaton v. Tallmadge, 24 Wis. 217.
- Lease by cotenant. A cotenant cannot make a lease valid as against the other cotenants, so as to give to the lessee the right of exclusive possession of any part of the land,58 unless he was authorized to act as their agent in making the lease, or unless, having
55. Mechem, Agency, Sec.Sec. 386-392.
56. Mechem, Agency, Sec.Sec. 419-429.
57. Post Sec. 464. 58. Co. Litt. 186a; Moreland v. Strong. 115 Mich. 211, 69 Am. St. Rep. 553, 73 N. W. 140; Jackson v. O'Rorke. 71 Neb. 418, 98 N. W. 1068; Hussey v. Holt, 24 N. H. 248, 55 Am. Dec. 234; Mott v. Underwood, 73 Hun. (N. Y.) 509, 26 N Y. Supp. 307; McKin-ley v. Peters, 111 Pa. 283, 3 Atl. 27.
In some states, aprparently, as a cotenant cannot make a valid conveyance in fee of his interest in a specific part of the land,61 so he cannot make a lease of such interest.62
- Grant of easement. One cotenant cannot, without the joinder of the others, grant an easement in the land.63 Occasionally such a grant by a cotenant has been said to be invalid for the same reason that, in some states,64 a conveyance by a cotenant of a portion of the whole tract has been regarded as invalid.65 Such an explanation would obviously not suffice in states in which a
59. Starks v. Sikes, 8 Gray (Mass.) 609, 69 Am. Dec, 270; Martens v. O'Connor, 101 Wis. 18, 76 N. W. 774; Hassard v. Tom-kins, 108 Wis. 186, 84 N. W. 174.
60. Lee Chuck v. Quan Wo Chong, 91 Cal. 593, 28 Pac. 45; Barnum v. Landon, 25 Conn. 137; Geary v. Taylor, 166 Ky. 501, 179 S. W. 426; Rising v. Stannard, 17 Mass. 282; Grundy v. Martin, 143 Mass. 279, 9 N. E. 647; Austin v. Ahearne, 61 N. Y. 6; Bar-son v. Mulligan, 198 N. Y. 23, 90 N. E. 1127; Durette v. Miller, 60 Ore. 91, Ann. Cas. 1913D, 1163, 118 Pac. 202; Harman v. Gart-man, Harp. Law (S. C), 430, 18 Am. Dec. 656; Jacobs v. Seward, L. R. 5 H. L. 6, Co. Litt. 199a.
61. Supra, this section, note 44.
62. See Cunningham v. Pattee, 99 Mass. 250; Tainter v. Cole, 120 Mass. 164.
63. Evans v. Pettus, 112 Ark. 572, 166 S. W. 955; Pfeiffer v. Regents of University, 74 Cal. 156, 15 Pac. 622; East Shore Co. v. Richmond Belt Co., 172 Cal. 174, 155 Pac. 999; Collins v. Prentice, 15 Conn. 423; Charleston & W. C. Ry. Co. v. Fleming, 118 Ga. 699, 45 S. E. 664; Forrest Milling Co. v. Cedar Falls Mill Co., 103 Iowa, 619, 72 N. W. 1076; Silverman v. Betti, 222 Mass. 142, 109 N. E. 947; Crippen v. Morss, 49 N. Y. 63; Palmer v. Palmer, 150 N. Y. 139, 55 Am. St. Rep. 653, 44 N. E. 966.
64. Ante, this section, note 44.
65. Benjamin v. American Telephone & Telegraph Co., 196 Mass. 454, 82 N. E. 681, 13 A. & E. Am. Cas. 306; Southern Investment Co. v. Postal Telegraph Co., 156 N. C. 259, 72 S. E. 361; Marshall v. Trumbull, 28 Conn. 183.
Conveyance by a cotenant of his interest in a portion of the tract is regarded as perfectly valid. A grant of an easement, made by one cotenant, would seem to be invalid for the reason that such a grant of an easement in an undivided interest in land is necessarily a nullity, so far as concerns the actual utilization of the land by the grantee. It involves an attempt by one cotenant, not to substitute another as cotenant in his place, as in the case of a conveyance or lease of his interest, but to enable a person, not a cotenant, to interfere, it may be perpetually, with the possession of the other cotenants. Presumably, however, such a grant by a cotenant would become valid and effective for the purpose of binding the grantor, if supplemented by exactly similar grants to the same person from the other cotenants, and it would ordinarily become effective by estoppel in case the grantor acquires in severalty such part of the land as is necessary for the exercise of the easement.66
- Minerals and timber. In those states in which a conveyance by a cotenant of his interest in a specific part of the land is invalid as against the other cotenants, a conveyance by him of his interest in the minerals in place is necessarily to that extent invalid,67 as is an exception of his interest in such minerals in a conveyance by him of his interest in the land,68 and likewise, a conveyance of his interest in timber.69 In other states a conveyance or exception of his interest in the minerals in place, or of his interest in the timber, would seem to be perfectly valid.
- Grant of license. As to the validity of a license given by one cotenant, there is little authority. He partition of the property, to have assigned him as his share the portion which he has improved, if this can be done without injury to the other cotenants;78 and, when this cannot be done, the other cotenants may be required, as a condition of partition, to pay to the improving tenant the amount to which their shares have been benefited by the improvements made by him in good faith, or he may be allowed for them out of the proceeds of the sale of the property in the partition proceeding.79 Moreover,
66. McElroy v. MeLeay, 71 Vt. 396, 45 Atl. 898.
67. Ball v. Clark, 150 Ky. 383, 150 S. W. 359; Boston Franklin-ite Co. v. Condit & Torrey, 19 N. J. Eq. 394; Hartford, etc., Ore Co. v. Miller, 41 Conn. 112.
68. Adam v. Briggs Iron Co., 7 Cush. (Mass.) 361.
69. Lee v. Follansby, 83 Vt. 35, 138 Am. St. Rep. 1061, 74 Atl. 327; Benedict v. Torrent, 83 Mich. 181, 11 L. R. A. 278, 21 Am St. Rep. 589, 47 N. W. 129.
71. To this effect see Omaha etc. Smelting Co. v. Tabor, 13 Col. 41, 16 Am. St. Rep. 185; Tipping v. Robbins, 64 Wis. 546, 25 N. W. 713. That one cotenant cannot give a valid license to cut timber, see Richey v. Brown, 58 Mich. 435, 25 N. W. 386; Baker v. Whiting, 3 Sumn. (U. S.) 475.
72. Post Sec. 292.
73. But in Baker v. Wheeler, 8 Wend. (N. Y.) 505, 24 Am. Dec. 66; Alford v. Bradeen, 1 Nev.
Viously, in other states, where a cotenant has no such privilege, he cannot confer it on another.74