The action was continued nisi, and the opinion of the Court afterwards drawn up by
Weston C. J.If one tenant in common ousts his companion, the party injured may vindicate his right in a real action. And it was decided in the case of Goodtitle v. Tombs, 3 Wilson, 118, that after having obtained judgment in ejectment, he might maintain an action of trespass for mesne profits; but the opinion of the court was founded upon the judgment, as evidence of an actual ouster, from the time of the demise until it was rendered.
In Fairclaim v. Shackleton, 5 Burrow, 2604, it was held that the receipt of the whole profits of an estate by one tenant in common, for a period of twenty-six years, without accounting to his companion, did not amount to an actual ouster, which is in other words a disseisin. That decision had the effect to protect the other co-tenant from being barred by the statute of limitations. But it is an authority to show that an actual ouster is an adverse holding, accompanied with acts or declarations, indicating a denial of the title of the other co-tenant. If, however, the facts in that case, had not been qualified by the circumstances adverted to in the opinion of the court, they might have been left to the jury, as evidence of an actual ouster. In McClung v. Ross, 5 Wheaton, 116, the court held, that although one tenant in common may oust his co-tenant and hold in severalty, yet that a silent possession, accompanied with no act, which can amount to an ouster, or give notice to his co-tenant that his holding is adverse, ought not to be construed into an adverse possession.
In Doe v. Prosser, Cowper, 217, a sole and uninterrupted possession by one tenant in common for thirty-six years, without any account to, or demand made, or claim set up by his compan*29ion was regarded as sufficient evidence for a jury to presume an actual ouster of the co-tenant. And .Lord Mansfield held, that if one tenant in common in possession denies the title of his companion. his possession becomes adverse, and amounts to an ouster. And undoubtedly an ouster may be proved by any competent evidence, of a character to satisfy a jury that the tenant in possession claims to exclude his companion altogether. Nothing short of this can constitute an actual ouster or disseisin. Whether if such ouster or disseisin is purged by entry, the party injured may thereupon maintain trespass for the mesne profits, as he might after he had obtained judgment at law for possession, it is not necessary to decide in this action. Nor is it necessary to determine whether the deforcement, of which the plaintiff complains, while it existed, might not have been treated by him, as an ouster or disseisin at his election, for the sake of the remedy by a writ of entry, it being the opinion of the Court, that trespass for the mesne profits cannot be maintained without an actual ouster, if it can without previously obtaining judgment at law for possession.
The declaration does not charge the defendants with having ousted or expelled the plaintiff from his freehold, hut with having held him out of the use and occupation of his proportion of the mill and privilege, from the first of February, 1830, for the period of one year and nine months. And the plaintiff offered to prove at the trial, that the defendants so held him out, until they surrendered his proportion to him in October, 1831. There is nothing either alleged, or proposed to be proved, like an actual ouster or denial of the plaintiff’s title. The injury then consists in the defendants’ entry and exclusive occupancy for the period charged. And this is not a trespass. The defendants, if they had not been the major owners, bad an equal right to the possession with the plaintiff. In Rising et al. v. Stannard, 17 Mass. 282, the court say, that before partition, each “ tenant in common has a right to occupy any part of the common property, and may assign such possessory right to a stranger. He may even occupy the whole, without being a trespasser.” His co-tenant may be prejudiced by liis exclusive occupancy, but he cannot charge him as a wrongdoer.
*30The plaintiff’s remedy consisted in bis right to take possession of the whole himself, if he could do it peaceably. Or he might maintain an action of account, or even of assumpsit against the defendants, if they had received more than their proportion of the profits. In the former action between these parties, 2 Fairf. 170, the court do not deny, that if the defendants had received more profits than they had a right to retain, it might have been recovered under the count for money had and received.
If the defendants had removed any of the plaintiff’s timber or boards from the mill, or its appurtenances, where he had an equal right to place them, or had taken any of the common property from him, while in his use, or had actually expelled him from the premises, -they would have been trespassers; but no averments are made, or proof offered to this effect.
If it had appeared, that there had been an allotment to the plaintiff for a certain period .of part of the mill, if it could have been practically and beneficially done, and the defendants had entered upon his part, within the period limited, we doubt not the plaintiff could have maintained trespass quctre clausum against them. Welden v. Bridgewater, Cro. Eliz. 421. And we perceive no reason why he might not have done so, if there had been legally assigned to him the whole mill, for any certain and definite time, and they had entered, while he was entitled to the several and exclusive occupancy. But this does not appear; nor can we regard it as deducible from the fact, admitted by the plaintiff, that the parties were tenants in common of the premises in controversy, and that they held it, as such property is usually held. We are not aware of any settled usage, in regard to the occupancy of mills owned in common, of which we can take judicial notice. If the plaintiff would charge the defendants with any trespass, upon his right to occupy in severalty, he should have proved, or have offered to prove it affirmatively.
Upon the whole, as the case is presented, the opinion of the Court is, that the nonsuit was properly ordered.
Exceptions overruled.