While, at common law, there was no right of action in favor of one tenant in common against a cotenant for waste committed by the latter, this right was given by an early statute.27 There are in some states in this country somewhat similar statutes giving a right of action to a tenant in common or joint tenant against his cotenant on account of waste committed by the latter.28 In some states there is such a right of action, it seems, independently of statute.29

An injunction may issue to restrain waste by a cotenant when otherwise irreparable injury might result, but generally, as a cotenant is entitled to the possession and use of the land, an injunction will not issue.30

- As regards minerals. The extraction of minerals by one cotenant has occasionally been regarded as damages or compellable to account, at the suit of the other cotenant.35 And it has occasionally been decided that, even though such taking is not waste,36 the co-tenant who takes the minerals is bound to account for all over his own proportion of the minerals taken out, subject to a deduction for the cost of extraction, that is, he must account to his cotenants for their share on the basis of the value of those minerals in place.37 In those jurisdictions, however, in which a cotenant in possession is not regarded as under an obligation to account for profits accruing from his own utilization of the land,38 it appears that he can be liable to the other cotenant on account of his taking of minerals only on the theory that this constitutes waste, or by reason of a statute applicable to this particular case.39 That one cotenant cannot bore for oil or gas has been occasionally decided,40 and if he does so without right such action constitutes waste, for which he would constituting waste,31 and occasionally a contrary view has been taken.32 In two or three states, perhaps, a cotenant has been regarded as guilty of waste in case he opens a new mine, but not if he works a mine already opened,33 thus applying the same rule as is ordinarily applied in connection with the question of waste by a particular tenant.33a The cases recognizing the right of a cotenant to extraet minerals are based chiefly on the consideration that unless this right be conceded him he may be in effect deprived of the full enjoyment of the property by reason of the refusal of the other cotenants to consent to this mode of using the property Such a consideration would hardly apply in the case of property susceptible of utilization in another manner, which would be prevented or interfered with by the extraction of minerals therefrom. And since a cotenant may, at the present day, almost always compel a partition,34 the cogency of the consideration referred to appears to be some what open to question.

27. St. Westminster II. (13 Edw. I , A. D. 1285) c. 22. See Co. Litt. 200a, 200b; 2 Cruise, Dig. tit. 18, c. 1, Sec. 65; Id. tit. 20, Sec. 9; Wilkinson v. Haygarth, 12 Q. B. 837.

28. 1 Stimson's Am. St. Law, Sec. 1377. See McCord v. Oakland Quicksilver Min. Co., 64 Cal. 134, 49 Am. Rep. 687, 27 Pac. 863; Murray v. Haverty, 70 111. 318; Emmons v. Emmons, 178 Ky. 180, 198 S. W. 900; Maxwell v. Maxwell, 31 Me. 184, 50 Am. Dec. 657; Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 580; Cosgriff v. Dewey, 164 N. Y. 1, 79 Am. Sv. Rep. 620, 58 N. E. 1; Childs v. Kansas City, St. J. & C. B. R. Co. (Mo.) 17 S. W. 954; Morrison v. Morrison, 122 N. C. 598, 29 S. E. 901; Cecil v. Clark, 47 W. Va. 402.

29. Dodge v. Davis, 85 Iowa 77, 52 N. W. 2, Childs v. Kansas

City, St. J. & C. B. R. Co., 117 Mo. 414, 23 S. W. 373.

That a cotenant. may, even after he has parted with his interest, sue on account of waste committed previously, see Hool-ihan v. Hoolihan, 193 N. Y. 197, 85 N. E. 1103.

30. Hole .v. Thomas, 7 Ves. 589; McCord v. Oakland Quicksilver Min. Co., 64 cal 134. 49 Am. Rep. 686, 27 Pac. 263; Burns v. Jackson, 8 Del. Ch. 345, 68 Atl. 381; Hancock v. Thorpe, 129 Ga. 812, 60 S. E. 168; Musch v. Burkhart, 83 Iowa. 301, 12 L. R. A. 484. 32 Am. St. Rep. 305, 48 N. W. 1025; Russell v. Merchants' Bank of Lake City, 47 Minn. 286, 28 Am. St. Rep. 368, 50 N. W. 228; Susquehanna Transmission Co. v. St. Clair, 113 Md. 667, 140 Am. St. Rep. 452, 77 All. 1119; Obert v. Obert, 5 N. J. Eq.397; 1119; Mott v. Underwood, 148 N.

In so far as the taking of minerals by a cotenant may be regarded as waste, he is no doubt liable in

Y. 463. 51 Am. St. Rep. 711, 32 L. R. A. 270, 42 N. E 1048; Woods v; Early, 95 Va. 307, 28 S. E. 374. See Ames, Cas. Eq. Jur. 485.

31. Murray v. Haverty, 70 111. 318; Childs v. Kansas City, St. J. & C. B. R. Co., 117 Mo. 414, 23 S. W. 373; Anaconda Copper Mining Co. v. Butte & Boston Min. Co., 17 Mont. 519, 43 Pac. 924, (statute); Abbey v. Wheeler, 170 N. Y. 122, 62 N. E. 1074 (semble); Cecil v. Clark, 49 W. Va. 459, 39 S. E. 202; Dougall v. Foster, 4 Grant's Ch. (Up. Can.) 319 (taking earth).

32. McCord v. Oakland Quicksilver Min. Co., 64 Cal 134, 49 Am. Rep. 687, 27 Pac. 863; Marsh v. Holley, 42 Conn. 453; McGowan v. Bailey, 179 Pa. 470, 36 Atl. 325; Harlan v. Centra' Phosphate Co., (Tenn. Ch.) 62 S. W. C14.

33. Hook v. Garfield Coal Co.. 112 Iowa, 210, 83 N. W. 963; Cos-griff v. Dewey, 164 N. Y. 1, 79 Am. St. Rep. 620, 58 N. E. 1. So it has been held that it is not waste to dig clay for the making of bricks as was done by the previous owner. Russell v. Merchants' Bank of Lake City, 47 Minn. 286, 28 Am. St. Rep. 368, 50 N. W. 228.

33a. Ante Sec. 282.

34. Ante, Sec. 204.

35. Cosgriff v. Dewey,. 164 N Y. 1, 79 Am. St. Rep. 620, 58 N. E. 1; Childs v. Kansas City, St. J. & C. B. R. Co., 117 Mo. 414, 23 S. W. 373; Cecil v. Clark, 47 W. Va. 402, 81 Am. St. Rep. 802, 35 S. E. 11; Williamson v. Jones, 39 W. Va. 231, 25 L. R. A. 222, 19 S. E. 436; Dettering v. Nordstrom, 148 Fed. 81, 78 C. C. A. 157; Silver King Coalition Mines Co. v. Mining Co., 204 Fed. 166, 122 C. C A. 402; See Coleman's Appeal, 62 Pa. 252; Fulmer's Appeal 128 Pa.

24, 15 Am. St. Rep. 662, 18 Atl. 493.

36. Ante, this section, note 32.

37. Clowser v. Joplin Mining Co., 4 Dill 469, note; Goller v. Fet. 30 Cal. 481; Hull v. McDonald, 22 Ga. 131; Edsall v. Mer-l-lll, 37 N. J. Eq. 114.

In Alderson v. Horse Creek Coal Land Co., 81 W. Va. 411, 94 S. E. 716, it was held proper to refuse an injunction against the mining of coal by a cotenant when it was possible to assign to him, in partition proceedings, the part of the land from which the coal was taken.

38. Ante, Sec. 198, notes 28, 29.

39. Such as the Pennsylvania act of April 25, 1850; See Mc-Gowan v. Bailey, 179 Pa. 470, 36 Atl. 325.

40. Zeigler v. Brenneman, 237 111. 15, 86 N. E. 597; Williamson v. Jones, 43 W. Va. 562, 38 L. R. A. 694, 64 Am. St. Rep. 891, be liable accordingly.41 He may, it seems, operate an oil well already opened, without committing waste,42 but he would even in that ease be liable, in some states, for the value of the other cotenants' share of the oil extracted, less the cost of extracting it.43

27 S. E. 411; Pyle v. Henderson, 65 W. Va. 39, 63 S. E. 762; Contra, Compton v. People's Gas. Co. 75 Kan. 572, 89 Pac 1039.

/

Sec. 292]

Rights of Enjoyment.

- As regards, trees and timber. On the question whether the cutting of trees by a cotenant constitutes waste the cases are not in accord. In England it is said to be waste if the trees are not in proper condition for cutting and sale,44 and only then.45 In this country the cutting of trees by a cotenant has occasionally been regarded as waste,46 and occasionally a contrary view7 has been asserted.47 In some cases the question whether the cutting of trees constitutes waste has been regarded as dependent on whether this involves material injury to the property as a whole,48 a view which appears to accord with that which is adopted in connection with the question of waste in other relations.49 In determining whether such action

41. See South Penn. Oil Co. v. Haught, 71 W. Va. 720, 78 S. E. 757.

42. Williamson v. Jones. 43 W. Va. 562, 38 L. R. A. 694, 64 Am. St. Rep. 891, 27 S. E. 411.

43. Dangerfield v. Caldwell, 151 Fed. 554, 81 C. C. A. 400.

44. Hole v. Thomas, 7 Ves. 589. 45 Martin v. Knollys, 8 Term.

Rep. 145. And so in Rhode Island, Buchanan v. Jencks 38 R. I. 443, 96 Atl. 307.

46. Nevels v. Kentucky Lumber Co., 108 Ky. 550, 49 L. R. A. 416, 94 Am. St. Rep. 388, 56 S. W. 969, 22 Ky. L. Rep. 247, 49 L. R. A. 416, 56 S. W. 969; Emmons v. Emmons, 178 Ky. 180, 198 S. W. 900; Benedict v. Torrent, 83 Mich. 181, 11 L. R. A. 278, 21 Am. St. Rep. 589, 47 N. W. 129; Cosgriff v. Dewey, 164 N. Y. 1, 79 Am. St. Rep. 620, 58 N. E. 1; El well v. Burnside, 44 Barb. (N. Y.) 447; Vick v. Tripp, 153 N. C. 90, 68 S. E. 1067 (semble); Hardman v. Brown, 77 W. Va. 478, 88 S. E. 1016.

47. Gulf Red Cedar Co. v. Crenshaw, 188 Ala. 606, 65 So. 1010; Hihn v. Peck, 18 Cal. 640; Alford v. Bradeen, 1 Nev. 230; Baker v. Wheeler, 8 Wend. (N. Y.) 507, 24 Am. Dec. 66.

48. Hancock v. Day, McMull Eq. (S. Car.) 69, 36 Am. Dec. 293; Johnson v. Johnson, 2 Hill Eq. (S. Car.) 277, 29 Am Dec. 72; McDodrill v. Pardee & Curtin Lumber Co., 40 W. Va. 564, 21 S. E. 878.

49. Ante Sec. 276, note 19.

R. P.-63 on the part of a cotenant constitutes waste, moreover, the fact that, in that jurisdiction, the cotenant, as being himself in possession, could not be compelled to account for the other's share,50 except on the theory of waste, might well be regarded as a consideration of very considerable weight in favor of regarding it as waste.51

VII. Boundaries equitable interference other than the uncertainty of the boundary.55 Such equitable ground for the issuance of a commission exists when the effect will be to avoid a multiplicity of suits 56 when one of the parties is in the relation of tenant, to the one seeking relief, and therefore under an obligation to preserve the boundary between the land of his landlord and any land adjacent thereto which he may own,57 and also when the uncertainty of the line is the result of fraud or misconduct on the part of the defendant.58