
    Barnes v. Kidwell.
    (Decided Nov. 11, 1932.)
    SHUMATE & SHUMATE for appellant.
    JOHN W. WALKER for appellee.
   Opinion op the Court by

Drury, Commissioner — ■

Reversing.

J. W. Barnes having used and occupied about 40 acres of land of which on February 6, 1931, it was adjudged that A. Hugh Kidweil owned one-half, Kidweil on October 21, 1931, recovered a judgment against Barnes for $200 for such use and occupation, and Barnes has filed the record here and made a motion for an appeal.

We will not devote time and space to giving the genesis of this controversy, but shall content ourselves by saying it was certainly a surprise to Kidweil to find he owned this half, and Barnes we are sure was equally surprised to find he did not own all of it. However, such had been the state of the title for more than thirty years and Kidwell made a claim against Barnes for $1,950 for such use and occupation. Barnes pleaded section 2515, Ky. Stats., and thus relieved himself of the necessity of accounting for anything other than for the last five years, and as to the last five years he pleaded and proved by even the witnesses for Kidwell that he had made nothing thereon, but had in fact lost money.

These people were tenants in common, and the rule of this state is that before a cotenant asserts his claim the occupying tenant is liable to account to his cotenant for his share of the net profits only, in this case one-half, and after the cotenant asserts his claim the occupying tenant must account to him for his share of the reasonable rental value of the property so occupied. See Pistole v. Lanier, 214 Ky. 290, 283 S. W. 88. Such is the general rule. See 7 R. C. L. p. 826 et seq., secs. 22, 23, 24, et seq. Kidwell filed his claim October 15, 1930. The evidence shows that Barnes had lost money by his use and occupancy of this land for the five years next preceding that time. Kidwell was adjudged to be the owner of his half interest on February 6, 1931, and presumably at once went into possession thereof. There is no proof of the reasonable rent of this land from October 15, 1930, when Kidwell made his claim, to February 6, 1931, when he was adjudged to be the owner of this half interest. This is farm land, it has no buildings upon it, and before Kidwell could recover, it was incumbent on him to show the worth of the use and occupation of this land during that three months and twenty-one days. After February, 1931, no one could have prevented Kidwell’s occupancy, and if he did not take possession it was his own fault.

Motion for appeal is sustained, appeal is granted, and the $200 judgment is reversed.  