Owings v. Talbott

• Decision Date: 07 February 1936
• Parties: OWINGS v. TALBOTT et al.
• Court: Kentucky Court of Appeals

90 S.W.2d 723

262 Ky. 550

OWINGS v. TALBOTT et al.

Court of Appeals of Kentucky

February 7, 1936

Appeal from Circuit Court, Bath County.

Suit for partition by Mason G. Talbott and others against Mrs Dollie Owings. From an adverse judgment, Mrs. Dollie Owings appeals.

Judgment reversed for consistent proceedings.

G. C Ewing, of Owingsville, and W. B. White, of Mt. Sterling, for appellant.

Daniel W. Doggett, of Owingsville, for appellees.

DRURY Commissioner.

Mason G. Talbott and fifteen others sought to have 58.611 acres of land sold for partition under section 490, subsection 2, of the Civil Code of Practice. Mrs. Dollie Owings, who owned one-third of this tract, relying upon subsection 7 of section 494 of the Civil Code of Practice, resisted the sale and sought to have her one-third of the land laid off next to her adjoining property, after which she would have no interest in what was done with the two-thirds that will be left. The court ordered the tract sold as a whole, and Mrs. Owings appeals.

The provision of section 494, sub sec. 7 of the Civil Code of Practice is mandatory. The property must be divided unless such division will materially impair the value of the property or the value of the plaintiff's interest in it and upon the party resisting such partition in kind rests the burden of showing such impairment will result.

The amount of land in the tract involved is so near to 60 acres that all through this record it is referred to as 60 acres, so we shall do likewise. Some of the plaintiffs own a very small aliquot part of this land, one or two owning as little as one seventy-second part of it, but after there is laid off to Mrs. Owings her one-third or 20 acres, let us say, then the ones now owning one seventy-second part of the 60 acres will own one forty-eighth part of 40 acres, and such a cotenant will own the same number of square feet as before, for one seventy-second of 60 acres is the same in area as one forty-eighth of 40 acres, each is five-sixths of an acre, and the sole question is, Will a 40-acre tract sell as well per acre as a 60-acre tract? That depends very largely upon the shape of the property, its accessibility to highways, and other factors. Therefore we have inserted in this opinion a map taken from the record.

(Image Omitted)

The Evidence.

Nine witnesses testify the property cannot be divided without loss, and fifteen testify that it can. This question in substance was frequently asked on behalf of the plaintiffs: "Could that tract of land be divided between the twenty-odd heirs, who are the heirs at law of Tolliver P. Young, deceased, without materially impairing the value of said land?" The oft-repeated appearance of that question detracts from the force of that evidence. There are not twenty heirs, there are but seventeen, and no one proposes to have this land divided into seventeen pieces. Mrs. Owings wants her one-third laid off to her, and proposes when that is done to withdraw from the case with her one-third and to allow the remaining sixteen to do with the other two-thirds as they please.

There is an old residence on this farm which is approximately located on the map, and near it is a spring also located approximately, while on the west end of this tract there is another spring marked "water."

This old residence has little, if any, value, so we may dismiss it as being of no importance in determining whether or not this land is divisible. The appellees insist this land cannot be divided because, as they say, Mrs. Owings will get the spring near the house and that the remainder of the farm will be valueless without that spring.

First, we do not know she will get that spring, and, next, it is by no means established that the remainder of the farm will be valueless without it. Mr. Arnold testified he was on this farm during a dry time and saw the spring on the western part of the farm marked "water," and it was 4 or 5 feet wide, 10 feet long, and 4 or 5 feet deep and was a permanent spring. Ray Hon rented this farm for four or five years, and he testified that in 1931, which was just after the great drought of 1930, it furnished all the water he needed for his stock and more, and in his five or six years' stay on the farm it had never been dry. James Alexander had rented this farm, and he testified this spring ran all summer, and was not a wet-weather vein. Three others testify about this spring. These depositions were filed February 18, 1935, and the plaintiffs made no effort to disprove what these witnesses said about the spring marked "water," although the judgment was not entered until May 14, 1935.

The evidence indicates this land is worth $20 or $25 per acre; the better land being on the west end.

The Chancellor's View.

The judge, after reading the pleadings and the evidence, and without notice to, request from, or knowledge of any one, inspected the premises himself, and the first and only knowledge any one had of it was imparted by this which is inserted in the judgment: "It is adjudged by the court that from a personal inspection of the tract of land and from the proof taken herein, both upon the depositions of both the plaintiffs and of the defendant, Dollie Owings, the said tract of land cannot be divided among the various heirs and owners without materially impairing the value of each individual interest owned and held therein, and that the said tract of land being so small and the heirs and owners so numerous, it is adjudged that it be sold as a whole."

Our Conclusions.

...