Present:    All the Justices

CLAUDIA P. DALY

v.   Record No. 061559         OPINION BY JUSTICE DONALD W. LEMONS
                                          June 8, 2007
CECILLIA M. SHEPHERD

           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                    LeRoy F. Millette, Jr., Judge

      In this appeal, we consider whether in the absence of

exclusion or ouster by an occupying co-tenant of residential

property, the non-occupying co-tenant is entitled to a ratable

share of fair rental value in an action for partition.

                  I.   Facts and Proceedings Below

      Claudia P. Daly ("Daly") and Cecillia M. Shepherd*

("Shepherd") each owned an undivided one-half interest in a

townhouse in Prince William County (the "property") as tenants

in common.    From the time of purchase, the property was

occupied by Shepherd and her son.    At the time the property

was purchased, Daly "talked about moving in."    Shepherd

testified that she bought furniture and "fixed up a bedroom"

for Daly.    According to Shepherd, Daly changed her mind and

decided not to move into the property.

      Without notifying Shepherd, Daly moved to another state.

Shepherd and her son continued to occupy the property.


      *
       While previously styled Daly v. Sheppard before this
Court, the correct spelling of the appellee's name is
Shepherd.
Desiring to own the property in its entirety, Shepherd filed a

partition suit.   Shortly after the suit was filed, Daly wrote

to Shepherd stating that she planned to move into the

property.   Shepherd's counsel then wrote to Daly stating that

the property was subject to a partition suit.    The letter to

Daly further stated:    "[I]f you wish to move into the

premises, you will need to call my office[] immediately as the

sale of the . . . property may happen soon."

     Daly did not move into the property, and the partition

suit continued.   Daly contended in her pleadings that based on

Shepherd's "sole and exclusive use of the property since the

parties acquired it," she was entitled to "one-half (1/2) of

the fair market rental value of the property."   Upon referral

from the circuit court, a commissioner in chancery heard

evidence in the case.   In his report, the commissioner found

that Shepherd should "not be charged against her interest a

ratable share of fair rental value of the property due to the

fact that [Daly], based upon evidence presented, was never

excluded from co-possession of the property."    Both Shepherd

and Daly filed exceptions to the commissioner's report.    The

trial court overruled Daly's exceptions, confirming the

commissioner's finding that Daly was not entitled to "any sum

for the rental value for the tenancy" of Shepherd.   However,

the trial court did confirm the commissioner's finding that


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Daly was entitled to one-half of the rental payments made by

Shepherd's son.

     Daly now appeals to this Court upon one assignment of

error:   "The trial court erred in overruling Daly's exceptions

to the Commissioner's Report and in entering a final decree

which did not include an amount in favor of Daly representing

one-half of the fair rental value of the property as

compensation for the exclusive tenancy of the co-owner,

Sheppard [sic]."

                          II.   Analysis

     The standards of review when a trial court considers

a report of a commissioner in chancery and when this

Court reviews the matter on appeal are well-established:

     While the report of a commissioner in chancery
     does not carry the weight of a jury's verdict,
     Code § 8.01-610, it should be sustained unless
     the trial court concludes that the
     commissioner's findings are not supported by
     the evidence. This rule applies with particular
     force to a commissioner's findings of fact
     based upon evidence taken in his presence, but
     is not applicable to pure conclusions of law
     contained in the report. On appeal, a decree
     which approves a commissioner's report will be
     affirmed unless plainly wrong.

Roberts v. Roberts, 260 Va. 660, 667, 536 S.E.2d 714, 718

(2000) (quoting Hill v. Hill, 227 Va. 569, 576-77, 318 S.E.2d

292, 296-97 (1984) (citations omitted)).

     Virginia Code § 8.01-31 provides:



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     An accounting in equity may be had against any
     fiduciary or by one joint tenant, tenant in
     common, or coparcener for receiving more than
     comes to his just share or proportion, or
     against the personal representative of any such
     party.

In Early v. Friend, 57 Va. (16 Gratt.) 21, 49 (1860), we

interpreted the predecessor statute to Code § 8.01-31 to

provide that

     whenever the nature of the property is such as
     not to admit of its use and occupation by
     several, and it is used and occupied by one
     only of the tenants in common, or wherever the
     property, though capable of use and occupation
     by several, is yet so used and occupied by one
     as in effect to exclude the others, he receives
     more than comes to his just share or
     proportion, in the meaning of the statute, and
     is accountable to the others.

Therefore, in deciding whether a co-tenant in a partition suit

is entitled to a ratable share of the fair rental value of the

property when one tenant has maintained exclusive occupancy,

two questions must be answered.       First, is the property

amenable to co-occupation?   Here, the answer is "yes."        Both

parties acknowledge that this residential property with

multiple bedrooms was intended by them to be co-occupied.

Having established that the property is amenable to co-

occupation, the next question is:      was there an exclusion or

ouster of the non-occupying co-tenant?      The answer in this

case is "no."




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     Daly relies upon the case of Adkins v. Adkins, 117 Va.

445, 85 S.E. 490 (1915), in support of her claim for a ratable

share of fair rental value of the property.   In Adkins, the

co-tenant occupied a farm to the exclusion of other co-

tenants.   He occupied the house as a residence and operated

the farm on a commercial basis including the harvesting of

timber and the leasing of a portion of the property.   On the

unique facts of the case, we observed that an understanding

had been reached by the co-tenants, even if the understanding

had not been a "formal contract."

     [H]e occupied the place for a considerable period
     as his home, keeping thereon a large amount of
     live stock, raising crops, etc., and throughout
     the remainder of his control had the property in
     the hands of tenants, either for a share of the
     crops or for a money rent, and at no time during
     all the years of his use and control of the
     property did his cotenants ever share with him in
     the crops or other proceeds of the farm. While
     there was no formal contract of renting, the use
     and control of the place by Thomas Adkins seems
     to have been acquiesced in by his brother and
     sisters upon the idea that the place had to be
     managed and that they could safely trust its
     management to him. While there never was any
     ouster of his cotenants, the use and enjoyment by
     the complainant was exclusive in the sense that
     it was never interfered with by his brother or
     sisters during the period of his control. The
     facts and circumstances of the case present a
     situation where the tenant in common occupying
     the premises to the exclusion of his cotenants is
     accountable for receiving more than his just
     share or proportion.

Id. at 447-48, 85 S.E. at 491.



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     In this case, the evidence shows that Daly was able to

move into the property, had planned to move in, and then chose

not to do so.   The commissioner was correct in finding that

the property was capable of co-occupation, and because Daly

was never excluded or ousted from co-occupation of the

property, she was not entitled to a ratable share of the fair

rental value from Shepherd.   However, as in Adkins, Shepherd

did receive more than her "just share or proportion" of rental

payments made by a non-owner occupant, namely Shepherd's son.

The commissioner was correct in finding that one-half of the

rental payments were properly credited to Daly.   The trial

court did not err in confirming the commissioner's report.

                         III. Conclusion

     For the reasons stated, the judgment of the trial court

will be affirmed.

                                                         Affirmed.




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