Arthur v. Chournos

HALL, Justice:

Defendants, hereinafter referred to as “Chournos,” appeal from an order partitioning 5,238 acres of range land located in Box Elder County upon the Promontory Peninsula which is bounded on three sides by the waters of the Great Salt Lake. The land is owned by Chournos and plaintiffs, hereinafter referred to as “Arthur,” in equal, undivided interests and has been utilized for the grazing of livestock in the months of winter and spring. Both parties own other land in the same area in their own right. Arthur leases his interests to tenants while Chournos utilizes all of his interests in conducting a sheep operation.

The parties designated one person each to act as referees and they were appointed by the court, however, they could not agree upon a recommendation. This prompted the court to appoint a third referee. The three referees then submitted a majority recommendation of partition which provided for “acceptance” by the parties or, in the alternative, a sale. The minority recommendation provided for the same partition but did not require acceptance by the parties. Thereafter, the court conducted a trial on the issues presented as to the respective merits of partition and sale at the close of which the order of partition appealed from was made. Chournos asserts the court erred in ordering partition since it results in great prejudice that may only be alleviated by an order of sale.

Partition is provided for by statute¹ and, when a party properly invokes the aid of the statute, partition is afforded as a matter of right² unless it appears to the satisfaction of the court that partition cannot be made without great prejudice to the owners. In the event such a showing is made, the court may order a sale of the real property.³

The burden of demonstrating the “great prejudice” contemplated by the statute must be borne by the party urging sale.⁴ The record reveals that Chournos recognized and accepted that burden and presented evidence in support of his position which focused primarily upon his contention that the lands should be sold as a unit which would continue to support a continued livestock operation. However, he also proposed an alternate method of partition designed to effect a similar continued use. Arthur in turn presented contrary evidence in support of partition as recommended by the referees and it was on those disputed facts that the court ruled, stating his reasons therefor.

The judge’s comments in the record clearly reveal that he gave due consideration to all of the facts presented to him. He made specific reference to the contents of the reports of the referees, the evidence presented at trial and the arguments of counsel. He further noted the anticipated effects of the order of partition on land values, access, tract sizes, future use, adjacent lands owned by the parties, improvements and water sources, all of which caused him to conclude that partition would not cause “great prejudice” to the owners. He also considered the alternate plan of partition proposed by Chournos but determined it not to be fair and equitable.

The court is not bound to accept the report of the referees. In fact, by statute,⁵ it may confirm, change, modify or set aside the report, and, if necessary, appoint new referees. Thus it can be seen that it was not a prerogative of the referees to condition partition upon its acceptance by the parties. To hold otherwise would be to permit infringement of the judicial process.

Traditional rules of appellate review require us to yield to the judgment of the trial court where its decision is substantially supported by the evidence.⁶ In the case of Barrett v. Vickers⁷ where a very similar factual situation arose pertaining to partition this Court stated the law as follows:

The answer to the appellants’ attack on the findings and judgment is found in the traditional rules of review: that due to the trial court’s prerogatives and advantaged position the presumptions favor his findings and judgment; that where there is dispute and disagreement in the evidence we assume that he believed those aspects of it and drew the inferences fairly to be derived therefrom which give them support; and if upon our survey of the evidence in that light, there is a reasonable basis to sustain them they will not be disturbed.

The trial court duly considered the relative harm that invariably arises by virtue of any partition or sale and determined that partition was the least onerous burden for the owners to bear. The method of partition adopted by the judge was, in his judgment, the most equitable way of dividing the property and it is amply supported by the evidence. He dealt with the problem of access by giving Chournos an easement conditioned upon his giving Arthur a like needed easement, thereby allowing access by both. He also noted that there was some evidence of the existence of prescriptive rights which might even resolve the matter without an exchange of easements.

This appeal, being one in equity, permits us to review questions of both law and fact.⁸ This does not mean that we should substitute our judgment for that of the trial court merely because we may feel another result would be more appropriate.⁹ To modify, or make new findings, the record must compel it.¹⁰

Chournos has not met the burden of showing that the trial court abused its discretion in not ordering sale and the judgment is affirmed. Costs awarded to Arthur.

MAUGHAN and WILKINS, J., concur.

1 . U.C.A., 1953, 78-39-1 et seq.

2 . Barrett v. Vickers, 12 Utah 2d 73, 362 P.2d 586 (1961).

3 .U.C.A., 1953, 78-39-12.

4 . Barrett v. Vickers, supra, note 2.

5 . U.C.A., 1953, 78-39-15.

6 . Stone v. Stone, 19 Utah 2d 378, 431 P.2d 802 (1967); In Re Crandall's Estate, 9 Utah 2d 161, 340 P.2d 760 (1959); Stanley v. Stanley, 97 Utah 520, 94 P.2d 465 (1939).

7 . 24 Utah 2d 334, 471 P.2d 157 (1970).

8 . Constitution of Utah, Art. VIII, Sec. 9.

9 . Barrett v. Vickers, supra, note 7; Stone v. Stone, supra, note 6.

10 . First Security Bank of Utah v. Demiris, 10 Utah 2d 405, 354 P.2d 97 (1960).