Schmidt v. Wittinger
North Dakota Supreme Court
687 N.W.2d 479 (2004)
Donald, Kenneth, and Alfred Wittinger owned undivided equal interests in a farm leased to Kevin Schmidt (plaintiff), but a river running through the property cut off portions from road access and running water. Donald and Kenneth (plaintiffs) petitioned along with Schmidt for a partition sale rather than partition in kind, also separately suing Alfred (defendant) for failing to pay his share of farm expenses like taxes; the trial court ordered a sale and awarded Donald and Kenneth compensatory damages for the unpaid expenses, and Alfred appealed, arguing the court should have ordered partition in kind instead.
Whether, in ordering partition of a property, a court orders partition in kind unless it is shown that partition in kind would result in great prejudice to the parties, as compared to a partition by sale.