                                             No.    80-294

                  I N THE SUPREME COURT O THE STATE OF M N A A
                                         F              OTN

                                                    1981




PATRICIA A.     FRY,

                               P l a i n t i f f and A p p e l l a n t ,



ALFRED E. HEBLE, CAROL J. HEBLE,
FEDERAL L N BANK O SPOKANE,
         A D       F

                               D e f e n d a n t s and R e s p o n d e n t s .




Appeal from:       D i s t r i c t Court of t h e Tenth J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f F e r g u s , The H o n o r a b l e
                   M. J a m e s S o r t e , J u d g e p r e s i d i n g .


C o u n s e l of Record:

         For Appellant:

                   D.   Frank Kawe,          Red Lodge, Montana

         For Respondent:

                   Moulton, B e l l i n g h a m , Longo & M a t h e r , B i l l i n g s ,
                   Montana
                   C h a r l e s F. Marris, Roundup, Montana




                                             Submitted on B r i e f s :          January 1 4 , 1981




Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Plaintiff Patricia Fry appeals from a judgment of the
Tenth Judicial District Court, Fergus County.   Following a
nonjury trial, the District Court made findings of fact and
concluded that defendants Alfred and Carol Heble had not
wrongfully held over on property once owned by plaintiff.
The court further held that defendants owed plaintiff $1,840
equal to the agricultural rents and profits earned from the
property offset by land improvements paid by defendants.
The sole issue presented by this appeal is whether the
District Court erred by refusing to allow plaintiff to plead
and prove an unlawful detainer action against defendants.
We find no error in the District Court proceedings and affirm
the judgment of the court.
     In 1967, plaintiff and her sister leased farmland they
owned as tenants-in-common to defendants for a six-year
period. In 1973, shortly before expiration of this lease,
the sister conveyed her interest in the farmland to defendants.
Under this conveyance, plaintiff and defendants became
owners of the farm property as tenants-in-common, each
vested with an undivided one-half interest in the property
at the time the lease expired.
    After the lease expired, defendants continued to farm
the property although plaintiff did not renew the lease of
her interest in the property.    Plaintiff brought this action
in 1974, asking the District Court to partition the property
and order the defendants to make an accounting of rents and
profits earned from the use of the property.
     The trial of this action was delayed until 1980 and by
the time of trial, only the accounting issue remained before
the District Court.   In 1977, the defendants purchased
plaintiff's interest in a bank foreclosure sale and became
sole owners of the farm property.        The plaintiff, however,
attempted to amend her complaint and add an additional issue
of unlawful detainer to her accounting claim.         Plaintiff
believed that the use of the property by defendants following
the expiration of the six-year lease constituted an unlawful
infringement of her former interest in the property.         The
court denied plaintiff's motion to add this claim by amend-
ing her complaint, concluding that the claim was inapplicable
to the case in this appeal.        Plaintiff contends the court
erred by refusing the amendment, thereby limiting the trial
to the amount of rents and profits defendants owed plaintiff
for the period the property was owned by both parties as
tenants-in-common.
     Rule 15(a), M.R.Civ.P.,      provides that a party may amend
his complaint three years after the filing of the original
complaint   ". . . only   by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires.      . ."   This rule allows for liberal
amendment of pleadings, but does not mean that amendments
should be allowed in all instances.       See, 6 Wright and
Miller, -
        Federal Practice and Procedure       §   1487, at 427.   Amend-
ments to pleadings requiring leave of court shall be disallowed
where the theory presented by the amendment is totally
inapplicable to the case.        McGuire v. Nelson (1973), 162
Mont. 37, 508 P.2d 558.
     In the instant case, a claim of unlawful detainer by
one cotenant against another cotenant cannot be maintained,
and an amendment to include such a claim in a complaint is
properly denied by the court.       A tenant-in-common is an
owner of an undivided interest in property.    Section 70-1-
306, MCA.    A claim of unlawful detainer may only be asserted
against a tenant for a term less than life.    Section 70-27-
108, MCA.
    A tenant-in-common may bring a damage action against a
cotenant-in-common for waste, but not for unpermitted use of
the property.    Section 70-16-106, MCA.   By positive statu-
tory authority, a cotenant-in-common is allowed to possess
and use the entire commonly-held property.    Section 70-1-
311 (also codified as section 70-19-202, MCA.)
     The District Court correctly denied the unlawful
detainer pleading amendment and properly restricted the
issues for trial to an action for an accounting.
    Affirmed.




We Concur:



       ghief Justice
                    n




             V
        Justices
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This cause was submitted prior to January 7, 1981.
