
    Josiah Arnold & another vs. Nelson H. Stevens.
    Where one of several tenants in common of the right to dig and remove ore from anotiiei ya land enters and digs, and removes ore therefrom, the owner of the land cannot main tain trespass against him on the ground that he did not first give notice to his co tenants, according to the provision of the Rev. Sts. c. 105, § 7, of his intention to enter, &c.
    Trespass for entering the plaintiffs’ close and digging and carrying away ore. At the trial before Putnam, J. it was proved or admitted that the plaintiffs were the owners in fee of the locus in quo, and that the defendant entered, and dug and removed ore therefrom. The defendant then proved that he and divers others, in common with him, had a right, by grant or devise, to enter upon said close, and dig and remove ore. But he did not prove, or attempt to prove, that before the entry, &c. complained of in this suit, he gave notice to those who had the right in common with him, of his intention to enter, &c. or procure their consent to his entry, &c. A verdict was returned for the plaintiffs, subject to the opinion of the court whether it could be retained on these facts.
    
      Byington, for the plaintiffs,
    argued that they were not subject to the separate entry of each of the owners of the right to the ore, but only to such entry, &c. as by the Rev. Sts. c. 105, § 7, is lawful as between the cotenants of that right; and that as one cotenant cannot lawfully enter, &c. without giving written notice to the others of his intention so to do, the plaintiffs may maintain an action against him, if he enter without such notice.
    
      Bishop, for the defendant.
   Wilde, J.

The plaintiffs cannot retain their verdict. The Rev. Sts. c. 105, §§ 7 & 8, concerning tenants in common, &c. have no bearing on this case, being made solely for the protection of one cotenant against the encroachments of another. If the plaintiffs were themselves cotenants with the defendant, they could not maintain this common law action, but must have proceeded against him on § 8, for the penalty imposed by §7.

The defendant proved his right, as against the plaintiffs, to do the acts complained of by them, and he was not bound to go any further.

Verdict set aside, and plaintiffs nonsuit.  