Butte Creek Island Ranch v. Crim

• Decision Date: 13 September 1982
• Citation: 136 Cal.App.3d 360,186 Cal.Rptr. 252
• Court: California Court of Appeals Court of Appeals
• Parties: BUTTE CREEK ISLAND RANCH, Plaintiff and Respondent, v. William H. CRIM, III, Defendant and Appellant. Civ. 21102.

Page 252

186 Cal.Rptr. 252

136 Cal.App.3d 360

BUTTE CREEK ISLAND RANCH, Plaintiff and Respondent, v. William H. CRIM, III, Defendant and Appellant.

Civ. 21102.

Court of Appeal, Third District, California.

Sept. 13, 1982.

Brobeck, Phleger & Harrison, Vincent Paul Finigan, Jr. and Thomas M. Peterson, San Francisco, for defendant and appellant.

Harris & Sanford, John T. Harris and Thomas G. Sanford, Gridley, Hardin, Cook, Loper, Engel & Bergez, Oakland, Cavalero, Bray Geiger & Rudquist, Stockton, for plaintiff and respondent.

SPARKS, Associate Justice.

Defendant William H. Crim, III, appeals from an interlocutory judgment of partition in favor of plaintiff Butte Creek Island Ranch, a general partnership. The judgment ordered a partition of real property by sale with division of the proceeds. Defendant contends that the trial court erred in ordering the sale of the real property rather than dividing it in kind. We agree and reverse the judgment.

FACTS

Plaintiff and defendant each own an undivided one-half interest in two parcels of real property in the Butte Sink area of Butte County. The Butte Sink area is one of the prime waterfowl areas in the state and the historic use of the contested property has been for waterfowl hunting. The properties can best be described with the aid of an illustration:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The northerly parcel, parcel A, consists of approximately 40 acres of real property. It has been used primarily as a support facility for the waterfowl hunting activities carried on in parcel B. Located on this northerly parcel are a sleep house, kitchen-dining building, and a garage and barn. Both the sleep house and the kitchen-dining building are set up for overnight accommodations. Although old, they are suitable for their duck club usage. The garage and barn are in poor repair and of marginal value. Also located on parcel A is a graded landing strip for small aircraft.

The southerly parcel, parcel B, consists of approximately 181 acres. This parcel is referred to as an "island" since it has Butte Creek on its western side and Sanborn Slough on its eastern side. This is the parcel on which the actual waterfowl hunting takes place. In preparation for the waterfowl season, water is pumped from Sanborn Slough to flood natural low areas on the land and thereby create the habitat preferred by waterfowl.

Defendant first began visiting the property in 1948 at age 11. At that time he went as the guest of Dr. Philip Baxter, plaintiff's predecessor in interest. He made yearly visits to the property as the guest of Dr. Baxter from that time until 1970. In 1970 defendant acquired an undivided one-half interest in the property from Dr. Baxter's sister, Ruth Baxter Dietrich. He has continued to use the property as owner since that time.

In 1978 plaintiff acquired its interest in the property from either the widow or the estate of Dr. Baxter. It sought to purchase defendant's interest and when he indicated that he did not desire to sell, this suit for a partition was filed. Plaintiff and defendant stipulated pursuant to Code of Civil Procedure section 873.040 to the appointment of Mr. Peter Brennan as referee in the matter.

The referee prepared a report in which he concluded that the most equitable division would be to divide each parcel into two separate north and south parcels. Each cotenant would receive one-half of parcel B for hunting purposes and one-half of parcel A for support purposes with access easements on existing paths. The referee concluded: "The division of the property is the most equitable solution to the problem presented since it omits the vagaries of the market and leaves the parties whole. [p] The alterative [sic] of sale and distribution of the proceeds would leave either one or both of the parties in less than whole position in two primary respects. First, capital gains taxes would have to be paid, leaving insufficient funds to purchase a similar property. [p] Secondly, and more important, the extreme scarcity of properties similar to the subject with respect to location, use, and general amenities, would effectively preclude acquisition of a replacement."

Plaintiff moved to confirm only part of the report of the referee. Specifically, plaintiff asserted that the division in kind of parcel B was fair and equitable and sought to have it confirmed, but sought the sale of parcel A and division of the proceeds. John Simmons, one of plaintiff's general partners, filed a declaration in which he stated that the division of parcel B was fair and should be confirmed. Defendant opposed the sale of parcel A. A hearing was held on the motion, but decision was postponed due to a tentative settlement. Plaintiff eventually notified that court that the tentative settlement had not been consummated and that it would amend its motion to object to the referee's report in its entirety. Such an amendment was filed and plaintiff now moved for the sale of the entire property.

At the hearing on the amended motion plaintiff presented evidence that at the In connection with its contention that sale of the property would be the most equitable solution plaintiff presented evidence that "more is better." Each of the two testifying general partners based his testimony upon the assumption that after the partition sale plaintiff would be the sole owner of the entire property. Both partners noted the advantages to plaintiff in owning the entire 181-acre parcel rather than merely owning one-half of that parcel. Plaintiff also presented testimony of an expert in management of waterfowl property. He explained the management economies that might be available to plaintiff in managing and developing a 181-acre parcel rather than a 90-plus acre parcel.

time it had taken the position that division of parcel B in kind was fair it had hoped to acquire a lease on a 67-acre parcel for use in conjunction with its one-half portion of parcel B. Since it was unable to acquire the lease on the 67-acre parcel, it had changed its mind and now desires all of parcel B for itself. Plaintiff candidly admitted that it intends to buy parcel B at the partition sale, and even suggested that it would desire to limit the sale to the cotenants.

Defendant testified that he does not desire to dispose of his interest in the property. If a sale were ordered he could not afford to participate in the bidding and would therefore be ousted from the property. He wished the court to divide the property in the manner suggested by the referee. In the event the parcels were divided into north and south parcels he would accept either portion of the original parcels.

At the conclusion of the hearing the trial court announced that parcel A, the 40-acre parcel, would be divided in kind with a provision for the movement of one building onto the southern half. It announced that parcel B, the 181-acre parcel, would be sold. Since both sides had testified that it would be less equitable to divide parcel B, the court stated it would order parcel B sold. An interlocutory judgment ordering the sale of parcel B and the division of parcel A was entered. Defendant appeals from the judgment insofar as it orders the sale of parcel B. No issue is raised herein concerning the judgment insofar as it orders the division of parcel A.

DISCUSSION

At common law and in equity cotenants were entitled to partition in kind regardless of the difficulty or inconvenience of such a division. (59 Am.Jur.2d, Partition, § 118, p. 864.) Sale was possible only with consent of all of the coowners. (Ibid.) Statutory provisions in most jurisdictions now provide for the power of a court to order a sale in a partition action where the property is impartible or division would be manifestly to the prejudice of the parties. (Ibid.) "The right of selling the land and dividing the proceeds, given by statute, is an innovation upon the common law, and since it takes away from the owner the right to keep his freehold in kind, it is to be strictly construed; it must appear from the record that an equal division cannot be made, or that a sale of the land will better promote the interests of all parties than will a partition in kind." (Id., at p. 865.)

California law has been in accord. Partition in kind is favored in law and in the absence of proof to the contrary the presumption in favor of in kind division will prevail. (See Williams v. Wells Fargo Bank (1943) 56 Cal.App.2d 645, 647, 133 P.2d 73.) A forced sale is strongly disfavored. (Ibid.)

In 1976, after a study by the Law Revision Commission, California's scheme for partition actions was amended. (Stats.1976, ch. 73, p. 107.) Of particular interest here was the repeal of Code of Civil Procedure sections 752, 752a, and 763, and the enactment of Code of Civil Procedure sections 872.810 and 872.820. The former sections provided for division by sale only where physical division would cause "great prejudice" to the parties. The new provisions provide for a presumption in favor of physical division which will control in the absence of proof that under the circumstances sale would be "more equitable" than division. In proposing this change the Law Revision Commission explained that the presumption in favor of physical division should continue but that "[i]n many modern transactions, sale of the property is preferable to physical division since the value of the divided parcels frequently will not equal the value of the whole parcel before division. Moreover, physical division may be impossible due to zoning restrictions or may be highly impractical, particularly in the case of urban property. [p] The Commission recommends that partition by physical division be required unless sale would be 'more equitable.' This new standard would in effect preserve the traditional preference for physical division while broadening the use of partition by sale." (13 Cal.Law Revision Com., Reports...