Smith v. Smith ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/23/2021 01:08 AM CDT
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SMITH v. SMITH
Cite as 29 Neb. App. 607Lynden A. Smith et al., appellants, v. Leonard
M. Smith et al., defendants and third-party
plaintiffs, appellees, and Alisa Smith,
third-party defendant, appellant.
___ N.W.2d ___
Filed March 16, 2021. No. A-20-233.
1. Partition: Equity. A partition action is an action in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court, provided that where credible
evidence is in conflict on a material issue of fact, the appellate court
considers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the facts rather
than another.
3. Partition. The object of a partition suit is to assign property, the fee
simple title to which is held by two or more persons as joint tenants, or
tenants in common, to them in severalty.
4. ____. There are two types of partition: partition in kind, where the prop-
erty is physically divided, and partition by sale, where the property is
sold and the sale proceeds are divided.
5. ____. As between a partition in kind or sale of land for division, the
courts will favor a partition in kind, since this does not disturb the exist-
ing form of inheritance or compel a person to sell his or her property
against his or her will, which, it has been said, should not be done
except in cases of imperious necessity.
6. Partition: Jurisdiction. A court acquiring jurisdiction of property for
partition acquires complete jurisdiction of the property and affords
complete justice to all parties in that action with respect to the sub-
ject matter.
7. Partition: Equity. Pursuant to its equity powers, a court can order a
partition in kind such that co-owned property is divided between two
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Cite as 29 Neb. App. 607groups of owners, rather than divided among all owners individually.
However, such a remedy should be rarely utilized and only when it is
equitably necessary.
8. Partition. The statutory ground for a sale of co-owned land is a show-
ing that partition in kind cannot be made without great prejudice to
the parties.
9. ____. The generally accepted test of whether a partition in kind would
result in great prejudice to the owners is whether the value of the share
of each in case of a partition would be materially less than the share of
the money equivalent that could probably be obtained for the whole.
Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed.
Sean A. Minahan, of Lamson, Dugan & Murray, L.L.P., for
appellants.
Terry Curtiss, of Curtiss, Moravek & Curtiss, P.C., L.L.O.,
for appellees.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
In this appeal from proceedings to partition real estate, the
principal issue is whether partition in kind can be achieved by
awarding a portion of the property collectively to one group
of owners and awarding the remaining property collectively to
another group of owners. Ultimately, we conclude that because
the law has long favored partition in kind and because the
unique facts and circumstances presented by this case war-
ranted a unique resolution, it was appropriate to partition the
property collectively between the two groups of owners. We
affirm the judgment of the district court.
BACKGROUND
Leonard M. Smith and Linda S. Smith and their four chil-
dren, Lynden A. Smith, Jaclyn K. Smith, Sarah K. Kah (Sarah),
and Lucas A. Smith, are co-owners of 4,972 acres of land
located in Sheridan County, Nebraska, which they inherited
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Cite as 29 Neb. App. 607from Linda’s parents. The shared land is made up of three
noncontiguous parcels. The first parcel of land is referred to
in the record as the “[N]orth [P]ivot.” A second parcel of land
just to the south of the North Pivot is referred to as both “Unit
62” and the “Mirage Flats Irrigation District.” Unit 62 includes
87.2 acres of land. The North Pivot and Unit 62 parcels con-
sist of irrigated farmland and grassland. In particular, Unit 62
was described as “very flat, very fertile ground.” The parties
stipulated that Linda owns 46 percent of the land contained
within the North Pivot and Unit 62, while each of her four
children own 13.5 percent of these parcels. The third parcel of
land is referred to as the “[R]anch.” This parcel consists largely
of pastureland, but also includes irrigated and nonirrigated
cropland as well. The parcel includes various improvements,
including multiple houses, sheds to store machinery and house
cattle, and a large Quonset. Box Butte Creek flows through a
portion of the Ranch. The parties stipulated that Leonard and
Linda own 32.5 percent of the Ranch as tenants in common.
The rest of that parcel is divided equally among Linda and her
four children such that each owns a 13.5-percent interest in
the land.
In September 2017, Lynden, Jaclyn, and Sarah filed a shared
complaint for partition of the co-owned land, seeking that title
“be quieted and confirmed in its owners; that [the property] be
partitioned and divided among its owners in kind . . . and if
the [property] cannot be divided and partitioned in kind, then
that it be sold as provided by law and the net proceeds there-
from divided accordingly.” Leonard, Linda, and Lucas (col-
lectively referred to as “appellees”) filed a shared answer and
cross-claim against Lynden, Jaclyn, Sarah, and a third-party
defendant, Alisa Smith, who is Lynden’s wife (collectively
referred to as “appellants”), conceding that partition of the
co-owned land was necessary and appropriate. Appellees also
affirmatively indicated, “The property in question cannot fairly
be divided in kind as part of this proceeding given the prop-
erty’s unique character, its pivot irrigation on portions, and
the varying improvements to portions of the tract.” Appellees
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Cite as 29 Neb. App. 607requested that a referee be appointed “to determine that the
said real estate may not be divided in kind” and that the prop-
erty be sold and the funds obtained from the sale be divided
amongst the parties.
Pursuant to the parties’ stipulation regarding ownership of
the property, the district court determined that appellants and
appellees were all joint owners of the property. The court
appointed a referee to recommend whether the property could
be partitioned in kind without great prejudice to the owners or
whether the property should be sold and the proceeds divided.
The referee inspected the property. He opined:
The partition thereof in kind cannot be made without
great prejudice to the owners when considering terrain,
availability of surface water, livestock watering facilities,
improvements located thereon and associated with certain
parts of the real estate subject to partition and methods
and means of application of surface and underground
water to certain irrigable tracts.
The referee filed a motion with the district court to approve his
report and to order a sale of the property.
Appellees subsequently filed an objection to the referee’s
report. In their objection, appellees indicated that they did not
believe a sale of the property was necessary or appropriate.
They alleged, “Sale of all real estate will work a serious and
unique hardship on [appellees] given their investment in the
co-owned real estate and its use and location as it relates to
other property of [Leonard and Linda].” Appellees proposed
that the land should be partitioned in kind such that appellants
would collectively receive a portion of the property equal to
their collective shares. Similarly, appellees would collectively
retain the remainder of the property. Appellees contended,
“Sale of all the co-owned real estate and division of the net
proceeds from the sale will not realize a materially greater
payment to [appellants] then [sic] division in kind as hereafter
proposed and sale by [appellants] of the share distributed ‘in
kind’ to them.”
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Cite as 29 Neb. App. 607In conjunction with their objection to the referee’s report,
appellees filed a motion for leave to amend their cross-­
complaint in order to delete the assertion that the property
could not be divided in kind. Appellees indicated that such
assertion was included in the cross-complaint only “due to the
error of their attorney.” The district court ultimately granted the
motion for leave to amend. The court also scheduled a trial on
the referee’s report and appellees’ objection to that report.
During the trial, Leonard, Linda, Lucas, Jaclyn, and Lynden
each testified. In addition, both appellants and appellees called
an expert witness to testify regarding the feasibility of parti-
tioning the co-owned land in kind without great prejudice to
the owners.
Leonard generally testified regarding his use of the ­co-owned
land as a part of his combined ranching and farming operation.
Linda and Lucas are also involved in this operation. Leonard
indicated that if all of the co-owned land were to be sold, it
would “cripple” the operation. In addition, Leonard explained
that he and Linda own separate parcels of land which border
portions of the co-owned land. Selling the co-owned land
would affect their access to their independently owned land.
Leonard further explained that he did not want to sell all of the
co-owned land
[b]ecause we feel that it would adversely affect me and
my son and especially my wife. This is her home. She
was raised there. She’s the happiest when she goes down
there and checks the cattle out in the pasture. That’s why
we object to it and we feel that each person should get
their fair share and operate it to whatever potential they
feel right.
Leonard proposed that the three parcels of land which are
­co-owned by appellants and appellees be partitioned in kind
such that appellants receive all of Unit 62 and a portion of
the west side of the Ranch, including sections 4 and 9 and
the western­most part of section 15 (480 acres). Appellants
would also receive a small corner of section 10 (40 acres),
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Cite as 29 Neb. App. 607located within the Ranch, so that they would have ready
access to section 15 from section 9. In total, appellants would
receive approximately 1,880 of the total 4,972 co-owned acres.
While 1,880 acres is not equal to appellants’ collective 40.5
percent interest in the total number of acres making up the
­co-owned land, Leonard testified that his proposal provided
appellants with their collective share of the value of the
­co-owned land.
As a part of Leonard’s proposed division of the co-owned
land, he, Linda, and Lucas would collectively receive the North
Pivot and the remainder of the Ranch, totaling approximately
3,092 acres. Leonard testified that he believed that dividing the
co-owned land this way was fair: “I believe this is as fair [a]
division as you could [accomplish]. They are getting the better
end of the [R]anch.”
Specifically, Leonard explained that this division of the
property would provide Lynden with Unit 62, which is where
he has farmed since 2003 or 2004. Leonard noted that Lynden
has made improvements to Unit 62, including putting “drip
tape” underneath the ground to irrigate his crops. Appellants
would also receive the larger of two pivots located on the
Ranch and a majority of the dryland cropland. Appellants
would have access to water from two windmills located on
their portion of the Ranch. In addition, the creek located
within their parcel would provide “live water” even in years
of drought. However, Leonard did indicate that, in the past,
the creek has flooded, making travel between sections 9 and
15 impossible until the water receded. Leonard explained that
appellants would have ready access to all parts of their portion
of the Ranch, as a highway runs through section 4 and another
road lies directly south of section 15, the southernmost sec-
tion of appellants’ allocated property. Leonard did not believe
appellants would have any issue with accessing section 15
from that road. He did indicate that without the road, the only
access appellants would have to section 15 would be to cross
the creek.
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Cite as 29 Neb. App. 607Linda and Lucas also testified about the road directly
south of section 15. Linda indicated that she has utilized that
road, without permission or interference from anyone, since
she was a child. Similarly, Lucas testified that he has used the
road without permission or interference from anyone since at
least 1993. In addition, Lucas believed the road to be public,
as he had observed county employees doing maintenance work,
including “blading the road” to make it smoother and fill holes
as recently as the summer of 2018. Linda testified that in addi-
tion to using the road, appellants could also obtain access to
section 15 using their portion of section 10. Linda recognized
that the creek sometimes may affect appellants’ ability to cross
into section 15; however, she indicated that this issue could “be
easily addressed.”
Appellees called John Childears to testify as their expert
witness. Childears has been a licensed real estate appraiser and
a licensed real estate broker in Nebraska for approximately 40
years. He is also an accredited rural appraiser. Childears testi-
fied that he has previously completed 779 appraisals, including
75 appraisals of large feedlots.
Childears performed an appraisal of the co-owned land.
Utilizing the cost approach, he calculated the total value of the
land to be $5,751,000. In reaching this conclusion, Childears
calculated a value for each of the three separate parcels which
make up the co-owned land. The North Pivot was valued at
$427,000. Unit 62 was valued at $261,000. The portion of the
Ranch that is west of the county road was valued at $1,563,000.
The remainder of the Ranch was valued at $3,500,000.
Childears opined that the co-owned land could be fairly
partitioned in kind between appellees collectively and appel-
lants collectively. Childears’ proposed division of the land
largely mirrored Leonard’s proposed division. Appellants
would receive Unit 62 and the western portion of the Ranch.
However, Childears proposed that appellants would receive
all of section 15 of the Ranch, rather than the western por-
tion of that section as proposed by Leonard. Appellees would
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Cite as 29 Neb. App. 607receive the North Pivot and the remaining portion of the
Ranch. According to Childears’ calculations, by dividing the
co-owned land in this manner, appellants would receive 41.17
percent of the total value of the land, which is more than their
collective share of 40.5 percent.
Childears testified to his belief that the creek located on
a part of appellants’ portion of the Ranch was “a positive”
even if it might sometimes cause access issues. He believed
that the land granted to appellants was saleable. In fact, he
opined that appellants’ portion of the Ranch was “very mar-
ketable, very desirable.” Childears testified that on the open
market, there would be a number of potential buyers for
appellants’ land.
At the close of appellees’ case, appellants motioned for a
directed verdict, asking the district court to adopt the referee’s
report which recommended sale of the co-owned land. The
court overruled the motion.
Jaclyn testified on behalf of appellants. She indicated that
at the time of her testimony, she had lived in a house located
in section 9 of the Ranch, one of the sections that would be
granted to appellants pursuant to Childears’ proposal, for the
past 2 years. Jaclyn testified that she was not in favor of par-
titioning the land pursuant to Childears’ proposal. She did not
want to be “legally bound” to any of her family members by
collectively owning the land. She was also concerned that if
the court awarded her, Lynden, and Sarah a collective share of
the land, that another partition action would have to be initi-
ated. Jaclyn indicated that she did not believe there was a fair
way to partition the land in kind. She was in favor of selling all
of the land and dividing the proceeds.
Lynden testified that at the time of the trial, he farmed land
located within Unit 62 and within section 9 of the Ranch,
both parcels that would be granted to appellants pursuant to
Childears’ proposal. In the past, Lynden has also lived on
section 9. Lynden did not agree with Childears’ proposal to
divide the land collectively between appellants and appellees.
He expressed concern that there was no southern access to
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SMITH v. SMITH
Cite as 29 Neb. App. 607appellants’ portion of the Ranch because the road was private
and owned by a neighboring farmer. Lynden also did not want
to own land with his sisters because he believed Jaclyn and
Sarah would want to sell the land, which would “[i]mmensely”
affect his farming operations. Lynden testified, “I never really
wanted to sell the property. I want to keep it. I want to farm.
That’s why I’m there.” However, Lynden also conceded that
he had not objected to the referee’s report which had recom-
mended sale of all the co-owned land.
Appellants called Ryon Rypkema to testify as their expert
witness. Rypkema has been a licensed real estate appraiser
in South Dakota and North Dakota since 2004. He has also
obtained temporary licenses to work on specific projects in
Nebraska. He specializes in appraising agricultural and com-
mercial properties. However, he is not accredited as a rural
appraiser.
Rypkema performed an appraisal on the co-owned land
using the cost approach and the sales comparison approach.
Rypkema explained that his “final appraisal” utilized “a blend
of the cost approach and the sales comparison approach.”
He opined that the total value of the co-owned land was
$5,410,000. He believed that it would be “difficult” to divide
the land equitably between the six owners, given the numerous
different types of land and improvements. Rypkema indicated
he did not have any real issues with Childears’ appraisal; how-
ever, he did not believe that Childears’ proposed division of the
property would be equitable. In fact, using Rypkema’s calcula-
tions, Childears’ proposed division would yield appellants only
35.75 percent of the total value of the co-owned land, which
was less than their 40.5-percent interest in the land. Rypkema
also questioned whether appellants would have “legal access”
to section 15 of the Ranch from the road located just to the
south of that section.
During their rebuttal, appellees recalled Childears to testify.
Childears questioned the reliability of Rypkema’s appraisal
due to his apparent use of “assemblage.” Childears described
assemblage as adding up the various parts of a property to
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Cite as 29 Neb. App. 607calculate the total value. Childears testified that assemblage
is not a viable tool in appraising real property. Childears
also questioned Rypkema’s valuation of each individual par-
cel “regardless of fencing, regardless of access, regardless of
water sites, so forth.”
On January 21, 2020, the district court entered an order sus-
taining appellees’ objection to the referee’s report and ordering
an in-kind division of the property such that appellants collec-
tively received 41.17 percent of the total value of the property,
in accordance with Childears’ testimony at trial. In the order,
the court specifically found Childears to be “very credible”
and believed that while “[p]artition in kind under the facts of
this case is difficult . . . an equitable division in kind is not
impossible.” The court indicated that “Childears’ opinion as to
value and proposed division shows that the property [appel-
lees] suggested be allocated to [appellants] was not materi-
ally less than the share of the proceeds they would receive
in the event that the entire property is ordered to be sold.”
The court indicated its belief that a forced sale of all the land
would not advance the interests of appellees or of Lynden.
The court also specifically found that Rypkema was not a
credible witness. The court noted that it “gave little weight to
Rypkema’s opinions.”
Appellants filed a timely appeal from the district court’s
order partitioning the co-owned property in kind.
ASSIGNMENTS OF ERROR
Appellants assign, restated and consolidated, that the district
court erred in partitioning the property in kind to appellants
collectively and to appellees collectively and in finding that
any partition in kind was possible given the character and loca-
tion of the property.
STANDARD OF REVIEW
[1,2] A partition action is an action in equity. FTR Farms
v. Rist Farm, 305 Neb. 708, 942 N.W.2d 204 (2020). On
appeal from an equity action, an appellate court tries factual
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Cite as 29 Neb. App. 607questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent of
the conclusion reached by the trial court, provided that where
credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that
the trial judge heard and observed the witnesses and accepted
one version of the facts rather than another. Arnold v. Walz,
306 Neb. 179, 944 N.W.2d 747 (2020).
ANALYSIS
[3] Before we address the specific assertions raised by
appellants in this appeal, we must restate the basic, longstand-
ing concepts which govern partition actions in Nebraska. The
object of a partition suit is to assign property, the fee simple
title to which is held by two or more persons as joint ten-
ants, or tenants in common, to them in severalty. FTR Farms
v. Rist Farm, supra. “Severalty” is defined as the “quality,
state, or condition of being separate or distinct.” Black’s Law
Dictionary 1583 (10th ed. 2014). Essentially, the purpose of
partition is to provide owners with separate and exclusive pos-
session of their portion of co-owned land.
[4,5] There are two types of partition: partition in kind,
where the property is physically divided, and partition by sale,
where the property is sold and the sale proceeds are divided.
In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868(2012). As between a partition in kind or sale of land for divi-
sion, the courts will favor a partition in kind, since this does
not disturb the existing form of inheritance or compel a person
to sell his or her property against his or her will, which, it has
been said, should not be done except in cases of imperious
necessity. FTR Farms v. Rist Farm, supra. A sale in partition
cannot be decreed merely to advance the interests of one of the
owners, but before ordering a sale, the court must judicially
ascertain that the interests of all will be promoted. Id. In fact,
it is generally held that until the contrary is made to appear,
the presumption prevails that partition in kind is feasible and
should be made, and that the burden is on those who seek a
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existence of a statutory ground for such sale. In re Estate of
McKillip, supra. With these principles in mind, we turn to the
specific arguments here.
On appeal, appellants challenge the district court’s authority
to order partition in kind such that co-owned land is divided
collectively between two groups of owners. Appellants contend
that partition in kind can only be achieved by awarding each
owner his or her individual share of the land: “[T]he right to
partition runs to each Appellant independently, rather than as a
collective.” Brief for appellants at 15.
[6,7] The Nebraska Supreme Court recently restated a long-
standing proposition of law that in Nebraska, a court acquir-
ing jurisdiction of property for partition acquires complete
jurisdiction of the property and affords complete justice to all
parties in that action with respect to the subject matter. FTR
Farms v. Rist Farm, 305 Neb. 708, 942 N.W.2d 204 (2020).
This statement is properly in line with the trial court’s broad
equitable powers, including the power to devise a remedy to
meet the situation presented. See, e.g., O’Connor v. Kearny
Junction, 295 Neb. 981, 893 N.W.2d 684 (2017). In FTR
Farms v. Rist Farm, the Supreme Court discussed these broad
equitable powers when holding that the concept of owelty, an
equalization payment, is permitted in certain partition cases
when it is determined to be “equitably necessary.” 305 Neb. at
720, 942 N.W.2d at 214. Similarly, we hold that pursuant to its
equity powers, a court can order a partition in kind such that
co-owned property is divided between two groups of owners,
rather than divided among all owners individually. However, as
the Supreme Court cautioned regarding the concept of owelty,
such a remedy should be “rarely utilized and only when it is
equitably necessary.” Id.
We find the circumstance presented by this case to be one
of the rare situations which warrants a partition in kind such
that the co-owned land is divided collectively between appel-
lants and appellees. First, as we explained above, appellants
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Cite as 29 Neb. App. 607filed their complaint for partition as a collective unit and con-
tinued to act as a unit throughout the proceedings in the lower
court. They shared the same lawyer and acted in concert in
questioning each witness. None of appellants formally objected
to the referee’s report recommending a sale of all of the prop-
erty, although Lynden did testify that he wished to keep his
farmland. Moreover, appellants continued to act as a unit in fil-
ing and in briefing this appeal. Because appellants have clearly
aligned their interests and have, at least implicitly, indicated a
collective desire to partition by sale, this case presents a dif-
ferent factual scenario than one where each co-owner of land
proceeds as an individual.
Next, we find that the evidence presented at trial revealed
that a partition by sale would create a significant hardship for
appellees, especially because Leonard and Linda own land
which borders the co-owned property and because their ranch-
ing and farming operation has been in place on the property for
decades. As we stated above, a person should not be forced to
sell land against his or her will. See FTR Farms v. Rist Farm,
supra. And, under the circumstances of this case, a sale of
all of the property would not promote the interests of all of
the co-owners.
Appellees, through the expert opinion of Childears, pre-
sented the district court with an effective remedy which, for
all intents and purposes, gave both appellees and appellants
exactly what they requested. By dividing the land in kind col-
lectively between the two groups, the district court awarded
appellees sufficient land to keep their operation running, while
giving appellants more than their fair share of the value of the
land to sell. Childears testified that the land allotted to appel-
lants was very marketable and represented 41.17 percent of
the total value of the land. The district court found Childears’
opinion as to value to be very credible.
While appellants assert that what they actually sought from
their partition action were their individual portions of 13.5
percent of the total value of the land, they do not explain
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provided them with something different than what they sought.
They can sell the land awarded to them and, according to
Childears, obtain more than their 13.5-percent individual share
of the total value of the land. Furthermore, while appellants
assert that they have suffered great prejudice by being forced
to co-own land with two of their siblings, they fail to provide
much detail regarding this prejudice. Appellants are free to sell
the land provided to them by virtue of the court’s decision and
receive their share of the proceeds. This is precisely what they
sought in their partition action and at trial.
Appellants also point to the Supreme Court’s opinion in
Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d 571 (2015), to
demonstrate that the district court’s collective partition in kind
was not appropriate. However, we find Zornes v. Zornes to
be distinguishable. In that case, the district court partitioned
two promissory notes between the two parties by awarding
each party a one-half divided interest in the proceeds from
each note. On appeal, the Supreme Court reversed the district
court’s decision. The court indicated that the lower court’s
partition had “actually preserved joint management” of the
notes, rather than separating or dividing the parties’ interests in
the notes. Id. at 279, 872 N.W.2d at 578. However, the court
also noted the difficult position the district court was in when
attempting to equitably divide the promissory notes, as each
promissory note held a different value. The Supreme Court
ultimately ordered the district court to partition the promis-
sory notes such that each party received one note, but that the
party who received the lower value also received an equaliza-
tion payment.
While in Zornes v. Zornes, supra, the Supreme Court
reversed the district court’s decision to partition the promis-
sory notes in a manner which essentially left the two parties
in the position of continuing as joint owners, in this case,
the district court partitioned the land between the two groups
of owners in order to give each group exactly what it asked
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Cite as 29 Neb. App. 607for. Appellants, who were in favor of selling all of the land,
received more than their fair share of the value of that land
so that they could sell it and divide the proceeds. While the
district court’s order had the effect of necessitating the three
appellants to continue as joint owners, at least temporarily,
such an order is distinct from that in Zornes v. Zornes, supra.
Here, appellants did not act as opposing parties in the partition
action. Rather, they acted in concert with each other throughout
the proceedings. Appellants decided to align their interests by
not objecting to the referee’s report and advocating for the sale
of the property. The district court’s order permits appellants to
obtain their individual interests in the total property. Moreover,
we note that in Zornes v. Zornes, the Supreme Court indi-
cated its understanding that partition actions sometimes require
unique resolutions. We note that the district court could have
ordered that only the land awarded to appellants be sold. See
Neb. Rev. Stat. § 25-21,103 (Reissue 2016). However, given
the unity of appellants’ position, the court chose not to do so.
We find no error in the court’s choice.
Appellants also assert in their brief on appeal that even if
the co-owned land could be partitioned in kind collectively
between two groups of owners, that under the facts of this case,
it was not equitable to do so. Specifically, appellants argue that
the evidence revealed that because there was limited access
to section 15 of the Ranch, which was granted to them, that
the value of that section was greatly diminished. Essentially,
appellants argue that the partition in kind did not yield their
full share of the total value of the co-owned land and that the
co-owned land should have been sold in its entirety.
[8,9] The statutory ground for a sale of co-owned land is a
showing that partition in kind cannot be made without great
prejudice to the parties. See Neb. Rev. Stat. §§ 25-2181 and
25-2183 (Reissue 2016). While it is generally true that there is
a presumption in favor of partition in kind, it is likewise true
that the character and location of the property, or the amount
of the interest sought to be assigned, or both, may be such
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Nordhausen v. Christner, 215 Neb. 367, 338 N.W.2d 754(1983). The generally accepted test of whether a partition in
kind would result in great prejudice to the owners is whether
the value of the share of each in case of a partition would be
materially less than the share of the money equivalent that
could probably be obtained for the whole. In re Estate of
McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
Here, appellants argue that the partition in kind ordered by
the district court results in great prejudice to them because
it does not provide them with the value of their share of the
total property. In support of their argument, appellants point to
evidence presented at trial which casts doubt on whether sec-
tion 15 of the Ranch was independently accessible and was,
thus, marketable. While we recognize that appellants offered
evidence in an effort to demonstrate potential difficulties with
accessing section 15, including Lynden’s testimony that the
road to the south of that section was privately owned by a
neighboring farmer and evidence that due to flooding in the
creek, section 15 could not always be accessed from section
9, we also recognize the contradictory evidence presented
by appellees. Leonard, Linda, and Lucas each testified that
they have never had any problems with accessing section 15
using the road to the south of that section. Lucas also testi-
fied that he believed the road was publicly owned because
he had previously observed county workers maintaining the
road. In addition, both Leonard and Linda testified that while
the creek sometimes flooded, causing section 15 to be tempo-
rarily inaccessible from section 9, this issue could be easily
addressed and rectified. Childears also testified that, in his
opinion, the creek increased the value of appellants’ portion
of the co-owned land by providing a consistent water source.
Childears opined that the land awarded to appellants was
very marketable.
As we stated above, where credible evidence is in conflict
on a material issue of fact, the appellate court considers and
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observed the witnesses and accepted one version of the facts
rather than another. Arnold v. Walz, 306 Neb. 179, 944 N.W.2d
747 (2020). The parties presented conflicting evidence regard-
ing the accessibility, and the corresponding marketability, of
section 15. After hearing testimony from all of the witnesses,
the district court apparently found appellees’ testimony regard-
ing access to be more credible. In fact, the district court explic-
itly found Childears’ testimony to be very credible. We do not
reevaluate the lower court’s credibility determinations here.
Given that the district court found appellees’ evidence
regarding the accessibility to section 15 to be credible, we
do not find the court’s partition in kind to be inequitable.
Childears testified that by dividing the co-owned land such
that appellants received Unit 62; all of sections 4, 9, and 15
of the Ranch; and 40 acres of section 10 of the Ranch, appel-
lants would be receiving 41.17 percent of the total value of the
co-owned land. This is more than appellants’ collective 40.5
percent interest in the land. Appellants have not offered any
other argument, outside of the accessibility of section 15, to
support their assertion that they suffered great prejudice due to
the division in kind. Accordingly, we affirm the district court’s
decision to partition the land in kind, rather than to order the
sale of all the land.
CONCLUSION
Given the broad equity powers granted to the district court
in partition actions and the favor given to partition in kind,
we affirm the decision of the district court to partition the
­co-owned land by awarding a portion of the land collectively
to appellants and by awarding the remaining portion of the land
collectively to appellees. Appellants were awarded more than
their share of the total value of the land.
Affirmed.