Boley v. Barutio , 120 Ill. 192 ( 1887 )

Mr. Justice Magruder

delivered the opinion of the Court r

This is assumpsit by appellee against appellant for the use and occupation of the south half of an ice-house in Pekin, built, in 1874, by appellant and appellee, at their joint expense, upon certain lots, of which each owned an undivided one-lialf. There ivas a trial before a jury in the circuit court of Tazewell county, resulting in verdict and judgment for appellee, which judgment has been affirmed by the Appellate Court.

The proof tends to show, that, in 1875, a partition was put in the building, running from east to west, and dividing it into two equal parts; that, thereafter, for seven years, appellant occupied and used the north half, and appellee the south half, the whole building being filled, each season, with ice, and appellant taking the ice in the north half, and appellee the ice in the south half; that, in the years 1883, 1884 and 1885, appellant occupied the whole building, taking the ice out of the south half, as well as the north half; that, in 18S3, appellee notified appellant in writing, that he would charge him rent for the south half.

It is true, that, in order to render one tenant in common liable to another for rent, or use and occupation, there must be something more than occupancy of the estate by one, and a forbearance to occupy by the other. But one co-tenant may be liable to another for rent without an express agreement by the one to pay rent to the other. An agreement to pay for use and occupation may be implied, as well where the parties are tenants in common, as in any other case, the only difference being that the relation of landlord and tenant will not be so readily inferred from occupation in the case of a co-tenant, as in the case of a stranger. If the conduct of the co-tenants towards each other, in relation to the occupancy of the premises, has been such, that an agreement to use, each a particular part of the premises, can be reasonably implied, then either, on being disturbed in his occupation by the other, is entitled to the same remedies, as though no relation of co-tenancy existed. 4 Kent’s Com. 370; Freeman on Co-tenancy and Partition, sec. 268; Illinois Cent. Railroad Co. v. Thompson, 116 Ill. 159; Oakes v. Oakes, 16 id. 106; Chapin v. Foss, 75 id. 280.

The jury were instructed by the trial court, that, if they found the facts above recited to be established by the evidence, plaintiff was entitled to recover what the use and occupation of the south half of the ice-house for the three years in question was reasonably worth. We find no error in the instruction so given, nor in the refusal of those, not given. There was evidence in the record upon the questions, to which the attention of the jury was directed by the instructions. Whether plaintiff and defendant made a parol partition of the premises, and, in pursuance thereof, took exclusive possession of their respective parts by mutual agreement, and whether thereafter defendant went into possession of the part, assigned to plaintiff, and occupied it, were questions of fact, upon which the decision of the Appellate Court is final.

The judgment of the Appellate Court is, therefore, affirmed.

Juclgment affirmed.