Arthur v. Chournos, 15031
| Decision Date | 19 January 1978 |
| Docket Number | No. 15031,15031 |
| Citation | 574 P.2d 723 |
| Court | Utah Supreme Court |
| Parties | Dennis S. ARTHUR and Donna L. Arthur, his wife, Plaintiffs and Respondents, v. Nick CHOURNOS and Dorothy K. Chournos, his wife, Individually and as general partners in the Chournos Land & Livestock Company, a limited partnership, Samuel N. Chournos, a general partner in the Chournos Land & Livestock Company, a limited partnership, and the Chournos Land & Livestock Company, a limited partnership, Defendants and Appellants. |
Milton A. Oman, Salt Lake City, for defendants and appellants.
John S. Boyden, Sr., of Boyden, Kennedy, Romney & Howard, Salt Lake City, for plaintiffs and respondents.
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 statute 1 and, when a party properly invokes the aid of the statute, partition is afforded as a matter of right 2 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. Vickers 7 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.
This is an appeal by Chournos from an order of partition of 5,238 acres of dry, desert, mountainous land which is owned in joint tenancy by the parties to this lawsuit. Each party owns other land in the same area. The Arthurs lease their land to a tenant who runs cattle and sheep upon it. Chournos has a large sheep operation and utilizes the jointly-owned land along with his own in that business.
The parties could not agree on the use of the jointly-owned land and Arthur began this suit for partition. The parties each appointed a referee to advise the court on the method of the partition and the share to be allotted to each. The court may affirm, change, modify, or set aside the report of the referees; and if necessary, appoint new referees. 1
In this case the two referees could not agree so the court appointed a third referee and they filed two reports with the court: a majority report and a minority report. The court accepted the majority report and Chournos appeals asking this Court to order a sale of the jointly-held property or to remand for a new trial.
Our statute 2 provides for a sale and distribution of the funds in cases where great prejudice to the owners would result from partition.
Two of the referees testified in court. The third could not attend because he had suffered a heart attack. The testimony of the two who did attend court was of interest. The referee appointed by respondent testified as follows:
Trying to be fair in dividing this as close to fifty-fifty as we could with all of the factors involved. We couldn't solve it all because of the lay of the land. There's no way that those lands colored in green (jointly held) can be divided to solve all of the problems of all the parties. But it certainly sets a base from which further negotiations could be made. (Emphasis added.)
Q. Now I'll ask you if this division as proposed here would open the way further exchanges and assist in those exchanges in the future.
A. I would certainly think so. Reasonable neighbors should be able to negotiate after each knows exactly what the other what he and the other party owns.
The referee appointed by the court said:
As I mentioned, since we had recognized that there could be considerable detrimental impacts, and since we were not in a position as a...
To continue reading
Request your trial
-
Gillmor v. Gillmor
...our judgment for that of the trial court merely because we may feel another result would be more appropriate." Arthur v. Chournos, Utah, 574 P.2d 723, 725 (1978). A reversal on questions of fact is appropriate only if the evidence clearly preponderates against the findings of the trial cour......
-
Blonquist v. Frandsen
...our judgment for that of the trial court merely because we may find a different result would be more appropriate. Arthur v. Chournos, Utah, 574 P.2d 723, 725 (1978). It is no evidence of inequity, as such, that one of the cotenants complains of unfairness once a decree of partition has been......