BRIEN v. GINTER (2002)

In an action, inter alia, to recover damages for trespass and conversion, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered May 21, 2001, which denied his motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 A license to remove items such as minerals, crops, or timber from property is a complete defense to an action to recover damages for trespass (see Allen v. Gouverneur Talc Co., 247 A.D.2d 691, 692, 668 N.Y.S.2d 755;  Smith v. Morse, 70 App.Div. 318, 320, 75 N.Y.S. 126), conversion (see Employers' Fire Ins. Co. v. Cotten, 245 N.Y. 102, 156 N.E. 629), and pursuant to RPAPL 861.   Moreover, it is well settled that “[i]n a tenancy-in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner” (Myers v. Bartholomew, 91 N.Y.2d 630, 632-633, 674 N.Y.S.2d 259, 697 N.E.2d 160;  see Freigang v. Freigang, 256 A.D.2d 539, 540, 682 N.Y.S.2d 466;  Gonzalez v. Gonzalez, 236 A.D.2d 589, 590, 653 N.Y.S.2d 700).   In that regard, each tenant has the right to harvest crops or mine minerals from the property, or to lease the property to third parties (see Abbey v. Wheeler, 170 N.Y. 122, 129, 62 N.E. 1074;  Cosgriff v. Dewey, 164 N.Y. 1, 58 N.E. 1;  LeBarron v. House, 122 N.Y. 153, 25 N.E. 253;  Giglio v. Giglio, 46 A.D.2d 921, 362 N.Y.S.2d 546;  Wilsey v. Loveland, 180 App.Div. 279, 167 N.Y.S. 546, amended 181 App.Div. 916).

 The plaintiff's verified complaint alleged that he and his former wife were and still are the owners of the relevant parcels.   Given this concession, it is clear that the plaintiff's former wife had a right to enter into timber harvesting contracts.   As the Supreme Court correctly noted, any dispute regarding the disposition of the proceeds of those contracts is a matter between the plaintiff and his former wife.