Leinweber v. Leinweber

• Court: Washington Supreme Court
• Writing for the Court: F. L. Stotler; FINLEY; OTT
• Citation: Leinweber v. Leinweber, 63 Wn.2d 54, 385 P.2d 556 (Wash. 1963)
• Decision Date: 10 October 1963
• Docket Number: No. 36417
• Parties: Henry E. LEINWEBER et al., Respondents, v. Reuben LEINWEBER and Nora Leinweber, husband and wife, as a community and individually, Appellants. . Department 2

Page 54

63 Wn.2d 54

385 P.2d 556

Henry E. LEINWEBER et al., Respondents, v. Reuben LEINWEBER and Nora Leinweber, husband and wife, as a community and individually, Appellants.

No. 36417.

Supreme Court of Washington. Department 2.

Oct. 10, 1963.

Rehearing Denied Dec. 13, 1963.

Savage & Nuxoll, Colfax, Smith, Smith & Smith, Spokane, for appellants.

F. L. Stotler, J. D. McMannis, Colfax, R. G. McBroom, Spokane, for respondents.

FINLEY, Judge.

The instant action for the partition of farm land in Whitman County was commenced by the plaintiffs-respondents, who owned the land in common with the marital community of Reuben and Nora Leinweber (defendants-appellants). No challenge has been made to the partition sale of the land for $275,000 to Associated Restaurants. The only question we are concerned with herein is the validity of the refusal of the trial court to grant the defendants' request in their cross-complaint for $7,100 less $1,183.33 (the deduction represents the proportion chargeable to the defendants' one-sixth interest in the cotenancy) for the summer fallowing of 474 acres of the land subjected to the partition sale.

Reuben Leinweber--59 years of age at the time of trial--has lived all of his life upon the farm which was sold on the partition sale. Prior to 1938, he worked on the farm for his father; however, in 1938, Reuben's father, owner of the farm, granted him a lease to the farm and equipment. Shortly thereafter (May 1938), Mr. Leinweber died, having devised a life estate in the farm to his widow, Mary Leinweber, with the remainder to his children as tenants in common. After his father's death, Reuben continued farming the land as the tenant of his mother, who had a life estate in the land. His mother, Mary Leinweber, died on May 5, 1960, thus terminating the life estate.

Reuben hdd commenced plowing the land in preparation for summer fallow immediately prior to the death of his mother, and he continued this plowing after her death. In agricultural terminology, summer fallowing is the working of the land during the spring and summer of one year to destroy the weeds and conserve moisture in order to be able to raise a good crop upon the land during the following year. The preparation, as well as some follow-up maintenance of summer fallow, usually involves plowing, spring toothing, harrowing, and weeding of the land. All of these operations were performed by Reuben Leinweber.

There is nothing in the record of this case which could be construed as being critical or depreciative of the quality of the summer fallowing performed by Reuben. The testimony not only indicates that summer fallowing is necessary for conservation of the land, but that the purchaser of the land placed a value on the summer fallow at $15 or $20 per acre in computing his bid. Consequently, there is no question that Reuben's activites with reference to summer fallowing did substantially increase the value of the land.

The great flexibility afforded to the courts in a partition action is indicated by a quotation from 2 Story's Equity Jurisprudence 269 (14th ed. 1918), as follows:

'* * * in all cases of partition a Court of Equity does not act merely in a ministerial character and in obedience to the call of the parties who have a right to the partition, but it founds itself upon its general jurisdiction as a Court of Equity, and administers its relief ex aequo et bono according to its own notions of general justice and equity between the parties.'

The same basic philosophy has been expressed modernly in Dimmick v. Dimmick (5th Dist. 1962), Cal.App., 20 Cal.Rptr. 82, 88, wherein Ventre v. Tiscornia, 23 Cal.App. 598, 605, 138 P. 954, 956, was quoted as follows:

'Therefore it may be safely said that the rule of today generally accepted and settled by a host of harmonious authorities, is that a cotenant, seeking partition of the common property at the hands of a court of equity, will be granted relief only upon the condition that the equitable rights of his cotenant will be respected and protected.'

As a refinement of the above-mentioned approach, this court has held that when necessary improvements are placed upon the property by a co-tenant the enhanced value may be equitably considered in an action for partition. Bishop v. Lynch (1941), 8 Wash.2d 278, 294, 111 P.2d 996; Blackwell v. McLean (1894), 9 Wash. 301, 37 P. 317. For cases in other jurisdictions reaching the same conclusion see: 122 A.L.R. 235 (1939), 40 Am.Jur. 32 (1942), Partition, § 39; 68 C.J.S. p. 221 (1950) Partition, § 139; and 86 C.J.S. p. 451 (1954) Tenancy in Common, § 68(c). Thus, if Reuben's summer-fallowing activities, after the death of his mother, are considered as 'improvements,' then clearly the enhanced valuation of the land which was attributable ...