repairs, when the property is so situated that actual partition is out of the question, is not required in this state, even by courts of equity, except in the case of mills, houses and the like under circumstances of special necessity.

Cosgriff v. Foss, 65 Hun, 184, affirmed.

(Argued February 10, 1897; decided March 2, 1897.)

APPEAL from a judgment of the General Term of the Supreme Court in the second judicial department, entered March 30, 1893, which modified and, as modified, affirmed a final judgment in partition entered upon a decision of the court on trial at Special Term.

This was an action of partition, and upon the trial thereof without a jury the court found that Andrew Cosgriff was entitled to eighteen undivided sixty-fourths of the premises in question; that Wilson P. Foss and Jacob E. Conklin were each entitled to nine undivided sixty-fourths, and that William Dewey was entitled to twenty-eight undivided sixty-fourths. The premises consist of one hundred and ten acres of land lying along the Hudson river in Rockland county, of a mountainous character, adapted to the quarrying of trap rock, and the crushing thereof, for supplying the markets of New York city, and they have substantially no value for any other purpose. At one end a quarry has been operated for many years by various tenants of the owners of the property. On the 28th of March, 1889, Catharine Blauvelt, who was then the owner, executed a lease of nine undivided sixteenths of said premises to Mr. Dewey, "to be used only for the purpose of and for the business of a quarry, the excavation, preparation and sale of stone or rock, either crushed or uncrushed," for the period of three years from March 1st, 1889, at a rent reserved of $1,000 per year. The landlord reserved the right to sell the premises, but the tenant was given "the option of purchasing the same at the price agreed upon in preference to any other person or persons," and the right was expressly granted to him," at any time during the continuance of said

term, of removing any machinery or buildings which he may erect or place upon said premises." Mr. Dewey operated the quarry as tenant until August 31, 1889, when he became the owner of his said share by virtue of a conveyance that was subject to his lease. On August 2d, 1890, Cosgriff, Foss and Conklin acquired their interests, including the landlord's rights under said lease, by a deed of that date which was also subject to the lease to Dewey. From August 31, 1889, when Mr. Dewey became part owner, until July, 1891, when a reference was had to ascertain the value of the improvements, he was in possession and occupation of the premises, and during that period improved the same for quarrying purposes by building foundations of stone masonry, erecting buildings for use in the business of quarrying and breaking stone, enlarging the working space of the quarry and making changes and additions which are substantial and useful, and increase the value of the premises. The cost of the improvements allowed by the Special Term was $9,672.40, of which $5,440.73 was directed by the final judgment to be deducted from the shares of the cotenants and paid to Mr. Dewey. The premises, which are worth from $20,000 to $40,000, and have a rental value of at least $2,000 per year, are incapable of actual partition, and a decree was made for the sale thereof and the distribution of the proceeds among the owners, according to their respective shares, subject to the modification above named.

The General Term modified the judgment by striking out the allowance for improvements, but in all other respects affirmed the judgment rendered by the Special Term. The defendant Dewey appealed to this court.

Clarence Lexow for appellant. An action for partition of real estate being in the nature of an equitable action, the court will compel a person invoking the equitable powers of the court in such an action to recognize and make proper allowance for the equitable rights of another party to the action. (Ford v. Knapp, 102 N. Y. 135; Moore v. Thorpe, 16 R. I. 106; Broght v. Boyd, 1 Story, 478; Wetmore v.

Roberts, 10 How. Pr. 51; Mickles v. Dillaye, 17 N. Y. 80; Miner v. Beekman, 50 N. Y. 339; Thomas v. Evans, 105 N. Y. 614; Putnam v. Ritchie, 6 Paige, 390.) The respondents cannot claim that the value of the benefit derived by the appellant from the use by him during the continuance of his lease of the improvements made on the premises should have been deducted from the allowance for such improvements. (Hitchcock v. Skinner, Hoff. 21.) Compensation for the dock improvements was properly allowed by the referee. (1 Am. & Eng. Ency. of Law, 641, 644; McDermott v. Palmer, 8 N. Y. 383; Gerard on Titles, 501; Voorhees v. Burchard, 55 N. Y. 98; Bank of Auburn v. Roberts, 44 N. Y. 192; Woodhull v. Rosenthal, 61 N. Y. 382, 390; Ogden v. Jennings, 62 N. Y. 526; In re Opening of Eleventh Ave., 81 N. Y. 436; Newman v. Nellis, 97 N. Y. 285; 3 Washb. on Real Prop. [4th ed.] 446; L. S. L. Co. v. Emerson, 38 Minn. 406; Yates v. Milwaukee, 77 U. S. 497; Story v. N. Y. El. R. R. Co., 90 N. Y. 122; Kane v. N. Y. El. R. R. Co., 125 N. Y. 164; Egerer v. N. Y. C. & H. R. R. R. Co., 130 N. Y. 108.)

Irving Brown for respondents. Dewey must be regarded as having made the so-called improvements as tenant, and no claim for them can be allowed. (5 Bacon's Abr. 563; Cowper v. Fletcher, 34 L. J. Q. B. 187.) A cotenant cannot be charged for improvements excepting such as are necessary for the preservation of the property, unless he gives his consent. or promises to share in the expense. (McAdam on Landl. & Ten. 98, 133; Coakley v. Mahar, 36 Hun, 157; Ford v. Knapp, 102 N. Y. 135; Scott v. Guernsey, 48 N. Y. 106; Sedg. & Wait on Titles, § 703; Gerard on Titles, 314; Green v. Putnam, 1 Barb. 500; Knapp on Partition, 9, 10; Iannan v. Osborn, 4 Paige Ch. 336; Moore v. Coble, 1 Johns. Ch. 385; Code Civ. Pro. § 1589; McCabe v. McCabe, 18 Hun, 153; Elwell v. Burnside, 44 Barb. 447; Job v. Patton, L. R. [20 Eq.] 84.) No recovery for improvements can be had after suit brought, or other legal proceeding con

Opinion of the Court, per VANN, J.

[Vol. 152.

cerning title has been instituted. (Sedg. & Wait on Titles, 533.) Dewey makes a claim for expenditures made upon lands belonging to the state of New York, below high-water mark of the Hudson river, adjacent to the lands in question, which were incurred in dredging in front of the dock, repairs to the dock and filling. This claim cannot be allowed, because they are not for improvements made upon the land. (Sedg. & Wait on Titles, 531; Curtis v. Gay, 15 Gray, 36; Coburn v. Ames, 56 Cal. 385; Hoboken v. P. R. R. Co., 16 Fed. Rep. 816.)

VANN, J. The question presented by this appeal is whether a tenant in common, who is also a lessee of his cotenant, can be allowed in partition for improvements made upon the property in the course of his tenancy, which enhanced its value, and were made with the knowledge, but without the consent, of the cotenant, when the effect of such improvements was not to protect or preserve the property, but to aid the tenant. in carrying on a business then prosecuted by him upon the premises, the increased income from which was not shared with the cotenant.

At common law a tenant in common, who has made permanent improvements, as distinguished from ordinary repairs, upon the common property, cannot recover from his cotenant any part of his expenditures for that purpose, unless they were made at the request or with the consent, express or implied, of the latter. (Mumford v. Brown, 6 Cow. 475; Jackson v. Bradt, 2 Caines, 302; Taylor v. Baldwin, 10 Barb. 582, 590, 626; Putnam v. Ritchie, 6 Paige, 390, 405; Crest v. Jack, 3 Watts, 238; Gregg v. Patterson, 9 Watts & S. 197, 209; Story's Eq. Jur. § 1235; Knapp on Partition, 10.) In some states this is the rule, even when the expenditure was necessary to keep the property from going to ruin, while in others, repairs essential to preservation may be made at the expense of the cotenants, in proportion to their respective shares, without their consent, especially if such consent is unreasonably withheld after due request. It is strictly limi

N. Y. Rep.]

Opinion of the Court, per VANN, J.

ted to repairs, however, and does not extend to improvements not essential to protect the property, but designed to enhance its value. (Loring v. Bacon, 4 Mass. 575; Beaty v. Bordwell, 91 Pa. St. 438; Stackable v. Stackpole, 32 N. W. Rep. 808; Wiggin v. Wiggin, 43 N. H. 561; Alexander v. Ellison, 79 Ky. 148; Hancock v. Day, 36 Am. Dec. 293.)

The rule of courts of equity upon the subject is more liberal and extends to improvements in special cases, as, in an action of partition, for instance, the court acts upon the principle that the party who asks for equitable relief will be required to do what is equitable himself. The rule, however, is carefully limited to those cases where special circumstances give rise to strong equitable rights. (Putnam v. Ritchie, 6 Paige, 390; Ford v. Knapp, 102 N. Y. 135.)

Some authorities sanction repairs that are absolutely necessary to preserve houses and mills, already erected and in being, but refuse to extend the rule to other kinds of property. (Dech's Appeal, 57 Pa. St. 467, 472; Anderson v. Greble, 1 Ashmead, 136, 139.) Chancellor KENT says: "One joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them, though the rule is limited to those parts of the common property and does not apply to fences inclosing wood or arable land." (4 Kent, 370.) Other cases permit improvements to be set off against rents and profits, but not charged against the body of the estate unless made with the knowledge and consent of the other owners. (Pickering v. Pickering, 63 N. H. 468; Luck v. Luck, 113 Pa. St. 256; Jones v. Jones, 23 Ark. 212.) Where one tenant in common, who was in possession supposing himself to be the legal owner of the entire premises, erected valuable buildings thereon, he was held entitled to an equitable partition so as to give him the benefit of his improvements. (Town v. Needham, 3 Paige, 546.) So in an action for partition, where actual division is possible, the cotenant who has made substantial improvements upon one parcel, is usually allotted the part that he has enhanced in value or so much thereof as represents his share