Gillmor v. Gillmor
| Citation | 657 P.2d 736 |
| Decision Date | 03 December 1982 |
| Docket Number | No. 17588,17588 |
| Parties | Edward Leslie GILLMOR and Siv Gillmor, his wife, Plaintiffs and Appellants, v. Florence GILLMOR, Charles F. Gillmor and Melba G. Gillmor, his wife, Defendants and Respondents. |
| Court | Utah Supreme Court |
E.J. Skeen, Clifford L. Ashton, Salt Lake City, for plaintiffs and appellants.
James B. Lee, James M. Elegante, Kathlene W. Lowe, H. James Clegg, Harold G. Christensen, Salt Lake City, for defendants and respondents.
This is a suit for partition of approximately 33,000 acres of land situated in Salt Lake, Summit, Wasatch and Tooele Counties. Although there is no judicial determination of its actual market value, the evidence indicates that the value is something in excess of $35 million. Included in the partition are appurtenant water rights, land leases, access roads and trails, and Bureau of Land Management grazing permits. The major dispute is whether the property should be partitioned in kind according to the cotenants' pro rata share of the value of the land so as to permit plaintiffs to continue operation of their cattle ranch in a similar manner to which they have heretofore operated it (plaintiffs' plan), or whether the acreage should be partitioned in kind with each cotenant receiving his pro rata share of the acreage (defendants' plan). The trial court chose the latter, and plaintiffs appeal.
As far as is pertinent to the present dispute, the subject property was originally acquired in joint ownership by two brothers, Frank and Edward Lincoln Gillmor, fathers of the present parties. The brothers operated a livestock business known as Gillmor Brothers. Upon the death of Frank Gillmor in 1954, his one-half interest in the property passed by devise in equal shares to his sons Charles F. Gillmor (defendant) and Edward Leslie Gillmor (plaintiff). Charles F. and Edward Leslie jointly carried on the Gillmor Livestock Company either in conjunction with, or leasing from, Edward Lincoln Gillmor until 1968 when Charles F. retired. Plaintiff Edward Leslie Gillmor then continued to operate the livestock company by leasing the three-quarters interest owned by Charles F. and Edward Lincoln Gillmor. Upon the death of Edward Lincoln Gillmor in 1970, his one-half interest in the properties passed to his daughter, the defendant Florence Gillmor. Plaintiff Edward Leslie Gillmor thereafter operated the livestock business by leasing the one-quarter interest of his brother Charles F. and the one-half interest of his cousin Florence. Those leases have since expired and have not been renewed. The parties currently own the disputed property as tenants in common, with Edward Leslie and Charles F. each holding a one-quarter interest and Florence holding a one-half interest.
In 1974, after several months of unsuccessful negotiations to divide the property among the cotenants, plaintiffs Edward Leslie Gillmor and his wife filed this suit to partition the property, or in the alternative, to have it sold at auction and apportion the proceeds. The trial court referred the matter to three referees who inspected the property and made a written recommendation to the court. However, all parties objected to the recommendation and the trial court rejected it. Thereafter, the parties submitted proposed plans for partitioning the property.
Defendants proposed that the entire property be divided into fifteen distinct blocks, with each block to be sufficiently uniform in nature so that it could be divided into four parcels of equal size and quality. The parcels in each block were to be distributed to the parties according to their respective interests.
Plaintiffs proposed that the land be divided according to the highest and best use into three groups: (1) livestock ranching property; (2) industrial property; and (3) recreational property. Under this proposal the plaintiffs would receive the livestock ranching property comprising approximately 64% of the total acreage, but only 25% of the total value of the land, thereby enabling them to continue the operation of the livestock business. The industrial and recreational properties, having a much higher value on an average per acre basis, were to be allocated to the defendants to divide between them. Following a hearing on the two proposals for partition, the trial court decided in favor of defendants' plan.
In the spring of 1977, the trial court heard testimony concerning the quality and quantity of the land in each block, but excluded testimony on property values and other evidence supporting plaintiffs' proposed partition. The trial court found that all but one of the fifteen blocks of land was dissimilar from the others in material respects, yet sufficiently homogeneous that, considering both the quantity and the quality of the land, each of the parties would receive a fair share of each block. The one exceptional block, the so-called ranch property, was ordered sold. The court reserved the partition of appurtenant property rights and amenities for a future hearing and determination.
On an interlocutory appeal, plaintiffs challenged the decision of the trial court. They claimed that the plan for partition effectively abolished their ranching operation and that the land should have been partitioned into larger, more useable blocks according to value and highest and best use. In an unpublished opinion dated March 23, 1979, this Court set aside the trial court's decision and remanded with instructions that the trial court take evidence on the appurtenant property rights and allow plaintiffs to present evidence on the equities of abolishing their cattle business, with due consideration to be given to property values and the plaintiffs' theory of partition.
On remand, the trial court took evidence on the value of the land and other matters as directed by this Court. The trial court again adopted essentially the same plan for partition as it had earlier, except that 16 blocks were designated for division into four parts. In the findings of fact and conclusions of law, the trial court stated it had
considered, among other evidence, testimony regarding historical use of the property by the Gillmor family, its present use, its quantity, its description, the quality, forage, and carrying capacity based upon animal units, water, water rights, stock in irrigation companies, livestock trails, crops, improvements, access, easements and cross-easements, impact of flood plain and zoning, regulations, highest and best use, market value, market value based on forage and carrying capacity, leases, BLM permits, transfer of BLM permits, commensurate land, the number and kind of livestock operated by plaintiffs (or a corporation they control), the value of that livestock, the economics of plaintiffs' operation of the livestock business, the equities involved in abolishing plaintiffs' livestock business, and the equities of all the parties.
The court also found that the land requested by plaintiffs constituted 63.8 percent of the total acreage. Although that land had an approximate value of only 26 percent or less of the total value of the properties (depending on which appraisal is used), the trial court held it inequitable to award plaintiff, owner of only a one-fourth interest in the whole, 63.8 percent of the land. Rather, the court found the equities to favor partitioning each separate block so that each owner would receive a portion thereof, and thereby share equally in future value fluctuations as the properties were put to higher and better uses.
The trial court divided the property into seventeen blocks, found that all but one could be equitably divided into four parcels of equal quantity and quality without prejudice to the owners, and that the division of the land into such parcels would not decrease the value of the whole. The one exception was the Old Ranch property, which the court ordered sold by the sheriff pursuant to Rule 69(e), Utah R.Civ.P., at a minimum price of $912,900.00. With regard to plaintiffs' claim that it was inequitable to in effect abolish their livestock business, which they claimed would result from the partition being based on quantity rather than value, the court found that all the parties wanted some of the ranching property; that plaintiffs would suffer no serious economic loss, considering that their annual rate of return through their livestock business was only .028 to .035 percent; that even if plaintiffs received all the property they requested, they would still have to lease more in order to carry on the current year-round operation; and that under the partition order, plaintiffs could still operate a livestock business through leasing, as had been done for years anyway. The court also apportioned the appurtenant property rights.
Plaintiffs have now appealed again, arguing that the trial court (1) disregarded this Court's instructions on remand; (2) erred in partitioning the ranch land into small unuseable pieces; (3) erred in ordering the sale of the Old Ranch; and (4) committed prejudicial error by excluding some of plaintiffs' evidence on property values.
The outcome of this appeal is determined in large measure by our standard of review in equity cases. On legal issues we do not defer to the trial court's ruling; our function is to determine that proper standards were applied and we do not defer to the trial court on such issues. Provo City Corp. v. Nielson Scott Co., Utah, 603 P.2d 803, 805 (1979); Automotive Manufacturers Warehouse, Inc. v. Service Auto Parts, Inc., Utah, 596 P.2d 1033, 1036 (1979). On issues of fact, however, we do defer to the trial court. In a partition case, this Court will not "substitute 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...
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