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.)
*334In 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.
Improvements made on land, 6y a trespasser.
The improvements made by the several defendants on the premises were all found by the Court to have been made “ before any of the said defendants acquired any right, title or interest in the said demanded premises, or any part thereof, as tenants in common with the plaintiffs or otherwise, and whilst they were trespassers thereon and without color of title.” The defendants, therefore, were not, when said improvements were made, “holding under cover [color] of title adversely to the claims of the plaintiff in good faith,” and are not entitled to set off the value of such improvements against the damages claimed under section two hundred and fifty-seven of the Practice Act.
Admitting, for the purposes of this decision, that a tenant in common who has been ousted by his co-tenant, cannot recover the increased amount of the value of the rents and profits arising from valuable permanent improvements put upon the premises by such co-tenant, the defendants in this action are *335not in a position to avail themselves of the principle, for the reason that the improvements were not made by them in the character of co-tenants. They were made by them while naked trespassers, and thus the improvements became a part of the land, and the property of those who held the title. The fact that the defendants subsequently purchased in and became co-tenants of the plaintiff does not in any respect change their ' relation to the title of that portion of the land held by the plaintiff. There was no error in allowing the value of the land in its improved state.
It is claimed by a portion of the defendants, that the Court-erred in allowing so much of the rents and profits as accrued prior to December 22d, 1859—more than three years prior to the commencement of this suit—on the ground that such portion of the claim is barred by the Statute of Limitations. The statute was set up, and the defendants rely upon section seventeen, clause two, which limits a recovery in “ an action for trespass upon real property” to three years. No authority has been called to our attention upon the construction to be given to this provision by either party. Regarding section seven as applying to rents, there does not appear to us to be any conflict between its provisions and those of section seventeen. By section seven a party must have been seized, or possessed within five years, to enable him to maintain an action at all for mesne profits accrued even within three years.
Statute, of Limitations as to rents and profits in ejectment.
The various Statutes of Limitations of the several States, and the English statute, contain provisions substantially the same as those in sections seven and seventeen of ours, except that, in most of them, the period for commencing an action for “trespass upon real property” is six, instead of three, years. (See Richardson v. Williamson, 24 Cal. 301-4.) Adams says—doubtless having reference to these provisions: “If the plaintiff declare against the defendant for having taken the mesne profits for a longer period than six years before the action brought, the defendant may plead the Statute of Limi*336tations, namely, not guilty within six years before the commencement of the suit, and thereby protect himself from all but six years.” (Ad. on Eject., by Waterman, 452.) And Buller, in relation to the same matter, says: “Certainly the defendant may plead the Statute of Limitations, and by that means protect himself from all but the six last years.” (Buller’s Nisi Prius, 88.) These are the only authorities upon the subject which have fallen under our notice. Accepting them as correct, it follows that, as to those defendants, who ousted the plaintiff on the 2d of September, 1858, the Court erred in allowing the rents and profits which accrued prior to November 22d, 1859. The findings of the Court furnish the elements necessary to enable us to direct a proper modification of the judgment.
As to the defendants Perkins and Johnson, the judgment and order denying new trial are affirmed.
As to the defendants Jones, Mitchell, Ford, Cohen and Englemeyer, the judgment must be so modified that the plaintiff shall only recover against them respectively the sum of two dollars per acre per annum upon the number of acres found by the Court to have been occupied by them respectively, from the 19th day of December, 1862, the date of the ouster, to the date of the order for judgment, September 26th, 1864.
And as to all the other defendants, the judgment must be so modified that the plaintiff shall only recover against them respectively the rents and profits at the monthly value of the. premises occupied by them respectively, as found by the Court, from December 22d, 1859, to the date of the order for judgment, September 26th, 1864. And the District Court, upon the filing of the remittitur, is directed to modify the judgment accordingly.
And it is further ordered, that the respondent pay the costs of the appeal.