Carpentier v. Mitchell

By the Court, Sawyer, J. The principal questions in this case are determined in Carpentier v. Webster, 27 Cal. 524, and Carpentier v. Mendenhall, 28 Cal. 484. In this case the Court found an ouster by a portion of the defendants on the 19th of December, 1862, at the time of the demand by plaintiff to be let into possession, and refusal by such defendants—and by the other defendants at an earlier day; and we think the evidence on this point sufficient to justify the finding. In Carpentier v. Mendenhall, the jury only found the evidence which tended to show an ouster without finding the fact of ouster. Although the evidence as to some of the defendants in the two cases was substantially the same, in this particular, the findings differ.

Damages for ouster by co-tenant.

We see no reason why a party who has been ousted by his co-tenant should not recover the damages resulting from such ouster, as well as when ousted by an entire stranger to the land. His injury is no less because it was done by a co-tenant. No case cited is to the effect that he is not entitled to recover his damages, while numerous authorities show that he is; and such is our opinion. “ The right to recover the mesne profits follows in all cases upon a recovery in ejectment.” (Sedg. on Dam. 123.) “A tenant in common who has recovered in ejectment may maintain an action for mesne profits against his companion.” (Ad. on Eject. Waterman’s edition, 449; Goodtitle v. Toombs, 3 Wilson, 118; Langendyck v. Burhans, 11 John. 461; Camp v. Homesley, 11 Iredell, 212; Hare v. Fury, 3 Yeates, 13.)

[334]In the cases of defendants Jones, Mitchell, Ford, Cohen and Englemeyer, the only ouster upon which plaintiff could recover at the time of the institution of this suit, was that of December 19th, 1862—their possession being rightful from the time they respectively became tenants in common until the ouster on that day. And the only damages, which the plaintiff is entitled to recover in this action, are such as grow out of, and are incident to the ouster upon which the recovery rests. (Carpentier v. Mendenhall.) The judgment as to these defendants is, therefore, erroneous to the extent of the rents and profits allowed, which accrued prior to December 19th, 1862.

The other defendants were naked trespassers, and in the wrongful possession of the premises from the time of their respective entries till after the commencement of this suit, and plaintiff is entitled to recover one half the rents and profits during the entire period of the continuance of such wrongful possession within the Statute of Limitations.