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2014 S.D. 74

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

BRADLEY GARTNER, Plaintiff and Appellee,

v.

MERLE TEMPLE, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

JACKSON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICIA J. DEVANEY

Judge

* * * *

HAVEN L. STUCK

Lynn, Jackson, Shultz

 & Lebrun, PC

Rapid City, South Dakota Attorneys for plaintiff and 

appellee.

JAMES P. HURLEY

Bangs, McCullen, Butler,

 Foye & Simmons, LLP

Rapid City, South Dakota Attorneys for defendant and 

appellant.

* * * * 

CONSIDERED ON BRIEFS 

ON OCTOBER 6, 2014

OPINION FILED 10/29/14
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GILBERTSON, Chief Justice

[¶1.] Appellant, Merle Temple (“Temple”), appeals the Sixth Judicial Circuit 

Court’s judgment ordering the partition in kind of 3,374.9 acres of land located in 

Jackson County, South Dakota, owned with Appellee, Bradley Gartner, as tenants 

in common. Temple argues that the property cannot be partitioned without causing 

great prejudice, that the circuit court undervalued permanent structures on the 

land, and that the court should have reduced the amount of the ordered 

compensatory payment in favor of allocating additional land to Temple. We affirm.

Facts and Procedural History

[¶2.] In 2007, Gartner and Doug Temple—Merle Temple’s father—entered 

into a joint venture and purchased a ranch (the Ranch) for $788,000 from Barry and 

Rita Barber—Gartner’s aunt and uncle. The Ranch consists of 3,374.9 acres located 

in Jackson County, South Dakota. Gartner held an undivided one-fourth interest in 

the Ranch, and Doug Temple held an undivided three-fourths interest. The Ranch

includes pastures, hay land, and several permanent structures including a house, 

machine shop, livestock sheds, calving barn, and corrals. After the purchase of the 

Ranch, Gartner and his wife sold their previous residence and moved into the house 

on the Ranch. Although Doug Temple and Gartner each kept the same number of 

cows on the Ranch, Gartner and his wife served as the Ranch’s caretakers. Gartner 

received half of Doug Temple’s calves in exchange for his services.

[¶3.] The White River divides the Ranch. Approximately 60% of the land is 

located to the north of the river and the remaining 40% is located to the south. The 

Ranch’s headquarters—including the house in which Gartner and his wife reside—
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is located on the southern parcel. Both parcels are accessible by county roads, and 

the northern parcel is bordered on the north by a county road located approximately 

ten miles from Interstate 90. Electricity and water resources are available on both 

parcels, but the northern parcel offers no winter protections for cattle, restricting its 

use to fair-weather grazing.

[¶4.] Doug Temple died in May 2009, at which time Temple inherited his 

three-fourths undivided interest in the Ranch. At that time, the Ranch was 

appraised at a value of $1,130,000. Thereafter, relations between Temple and 

Gartner deteriorated. In February 2012, Gartner brought an action for partition

and subsequently asked the circuit court to appoint three referees. The court held 

an evidentiary hearing on June 19, 2012, and heard testimony from Temple, 

Gartner, and three expert witnesses—Lyndell Peterson and Bryce Nelson for 

Temple, and Ronald Ensz for Gartner. The court granted Gartner’s motion and 

appointed Peterson, Nelson, and Ensz to prepare a Referee’s Report (the Report).

[¶5.] The referees met with the parties and their attorneys, inspected the 

property, viewed aerial photographs, examined the 2009 appraisal, and prepared 

the Report on June 25, 2013. The Report recommended dividing the Ranch into two 

parcels along the White River, with Temple receiving the northern parcel and 

Gartner receiving the southern parcel, including his home and accompanying 

structures. The Report resulted in an allocation of 920 acres to Gartner and 

2,454.90 acres to Temple. Because Gartner only held a one-fourth interest in the 

Ranch, but received almost 40% of the land, the circuit court ordered Gartner to 

make a compensatory payment to Temple of $102,337. Temple asked the circuit 
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court to increase the value of the permanent structures according to their 

replacement cost—rather than their market value—and to award more land to 

Temple instead of the large compensatory payment. The circuit court denied 

Temple’s request and he now appeals.

[¶6.] Temple raises three issues in this appeal:

1. Whether the circuit court erred in refusing to order a 

partition by sale.

2. Whether the circuit court erred in adopting the Referee’s 

Report.

3. Whether the circuit court erred in ordering Gartner to 

make a compensatory cash payment to Temple instead of 

awarding more land to Temple.

Standard of Review

[¶7.] “[P]artition is a proceeding in equity and the court has the inherent 

jurisdiction to adjust all the equities in respect to the property.” Eli v. Eli, 1997 

S.D. 1, ¶ 8, 557 N.W.2d 405, 408 (quoting Braaten v. Braaten, 278 N.W.2d 448, 450 

(S.D. 1979)) (internal quotation marks omitted). “We review equitable actions for 

abuse of discretion.” Englehart v. Larson, 1997 S.D. 84, ¶ 12, 566 N.W.2d 152, 155. 

See also Eli, 1997 S.D. 1, ¶ 8, 557 N.W.2d at 408. An abuse of discretion “is a 

fundamental error of judgment, a choice outside the range of permissible choices, a 

decision, which, on full consideration, is arbitrary or unreasonable.” Arneson v. 

Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910. We do not determine whether 

we would have made the same decision as the circuit court. Novak v. Novak, 2006 

S.D. 34, ¶ 3, 713 N.W.2d 551, 552. Rather, “[o]ur function in reviewing matters 

which rest in the discretion of the trial court is to protect litigants from conclusions 
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which exceed the bounds of reason.” F.M. Slagle & Co. v. Bushnell, 70 S.D. 250, 

254-55, 16 N.W.2d 914, 916 (1944). 

[¶8.] “Pursuant to an abuse of discretion standard of review, factual 

determinations are subject to a clearly erroneous standard.” State v. Guthrie, 2002 

S.D. 138, ¶ 5, 654 N.W.2d 201, 203. In applying this standard:

The question is not whether this Court would have made the 

same findings that the trial court did, but whether on the entire 

evidence we are left with a definite and firm conviction that a 

mistake has been committed. This Court is not free to disturb 

the lower court’s findings unless it is satisfied that they are 

contrary to a clear preponderance of the evidence. Doubts about 

whether the evidence supports the court’s finding of fact are to 

be resolved in favor of the successful party’s version of the 

evidence and of all inferences fairly deducible therefrom which 

are favorable to the court’s action.

Estate of Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d 219, 222 (quoting Osman v. Karlen & 

Assocs., 2008 S.D. 16, ¶ 15, 746 N.W.2d 437, 442-43) (internal quotation marks 

omitted). We give no deference to the circuit court’s conclusions of law, however, 

and review them under a de novo standard. Guthrie, 2002 S.D. 138, ¶ 5, 654 

N.W.2d at 204.

Analysis and Decision

[¶9.] 1. Whether the circuit court erred in refusing to order a partition by 

sale.

[¶10.] Temple principally asserts that partition in kind cannot be made 

without causing great prejudice because neither resulting property would be 

capable of functioning as an economic unit. He further asserts that the referees 

incorrectly valued the permanent structures located on land allocated to Gartner, 

further prejudicing Temple. Finally, Temple asserts that the circuit court’s order to 

Gartner to make a compensatory payment to Temple in the amount of $102,337 is 
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evidence that the partition is “grossly unequal.” Consequently, Temple concludes 

that the circuit court should have ordered a sale of the entire property, that the 

court should have modified the Report to award him a larger compensatory 

payment or additional land, and that the court should have converted the 

compensatory payment actually awarded into additional acreage taken from 

Gartner’s allotment.

[¶11.] The partition of real estate is authorized and governed by SDCL 

chapter 21-45. In particular, SDCL 21-45-1 defines a cotenant’s statutory right to 

the partition or sale of jointly owned property.

When several cotenants hold and are in possession of real 

property as partners, joint tenants, or tenants in common, in 

which one or more of them have an estate of inheritance or for 

life or lives or for years, an action may be brought by one or 

more of such persons for a partition thereof according to the 

respective rights of the persons interested therein and for a sale 

of such property or a part thereof, if it appear that a partition 

cannot be made without great prejudice to the owners.

In an action for partition, a court normally “must order partition of the property in 

kind according to the respective rights of the parties[.]” SDCL 21-45-15. “Unless 

great prejudice is shown, a presumption prevails that partition in kind should be 

made. Forced sales are strongly disfavored.” Eli, 1997 S.D. 1, ¶ 10, 557 N.W.2d at 

408 (quoting Schnell v. Schnell, 346 N.W.2d 713, 716 (N.D. 1984)) (internal 

quotation marks omitted). Therefore, a party has access to the remedy of partition 

by sale only in limited circumstances—when “it appear[s] to the satisfaction of the 

court that the property, or any part of it, is so situated that partition cannot be 

made without great prejudice to the owners[.]” SDCL 21-45-28. The proponent of a 
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forced sale has the burden of proving great prejudice. Eli, 1997 S.D. 1, ¶ 11, 557 

N.W.2d at 408.

[¶12.] Temple claims that the circuit court’s order is “grossly unequal, clearly 

unfair, contrary to law, and causes great prejudice to Temple[.]” Temple testified 

that dividing the Ranch into two units would devalue both because the resulting 

northern parcel would not have any buildings or improvements and the southern 

parcel would not have enough land to function as an economic unit. However, great 

prejudice is not established merely because the resulting post-partition parcels are 

less productive than the pre-partition whole, or even because the resulting parcels

function dissimilar to the whole.

In determining if great prejudice would result from a partition, 

the question is not which alternative would provide optimal 

economic value or maximum functional use. The resultant 

parcels need not be the economic, functional or aesthetic 

equivalent of the original parcel. Rather, great prejudice exists 

when “the value of the share of each in case of a partition would 

be materially less than his share of the money equivalent that 

could probably be obtained from the whole.”

Schnell, 346 N.W.2d at 716 (quoting Berg v. Kremers, 181 N.W.2d 730, 733 (N.D. 

1970)). Thus, the effect of partition in kind “must be weighed against the effect of a 

sale of the land as a unit and the effect of a sale of the land in parcels.” Id. at 720.

[¶13.] When properly weighing the effect of partition in this case, it is clear 

that Temple has failed to meet his burden of showing great prejudice. Both of 

Temple’s experts—Nelson and Peterson—offered testimony that actually tends to 

establish the absence of prejudice. Peterson testified that there is a demand for 

smaller tracts that do not necessarily constitute economical units in themselves. 

Likewise, Nelson also admitted that smaller tracts frequently sell at auction. The 
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circuit court noted both of these statements in its findings of fact. Under the 

circumstances, we are not presented with any reason to conclude that the circuit 

court clearly erred in doing so. Additionally, the circuit court had access to the 2009 

appraisal, which also indicated not only that other farmers and ranchers operating 

in the area were buying any available expansion land, but also that new families 

were moving into the area to establish country residences (as opposed to farming or 

ranching units). Consequently, even if Temple and his experts offered testimony 

tending to show that the resulting partitions of the Ranch could not independently 

function as economic units, they did not offer testimony showing that the amount 

Temple would receive from selling his partition—when added to the compensatory 

adjustment he would receive of $102,337—is materially less than would be his 

share of the proceeds of selling the entire property. In other words, Temple has not 

shown that he would suffer serious pecuniary injury as a result of partition, even if 

the resulting parcels are not “economic units.”

[¶14.] More importantly, however, we consider more than just the financial 

implications of partition. We examine the totality of the circumstances to 

determine whether a partition in kind would cause great prejudice to the owners. 

Eli, 1997 S.D. 1, ¶ 15, 557 N.W.2d at 410. Although we consider a material 

depreciation in value resulting from partition, id. ¶ 15, 557 N.W.2d at 409, the 

value of land includes “the full range of the benefit the parties may be expected to 

derive from their ownership of their respective shares[,]” id. (quoting Eaton v. 

Hackett, 352 A.2d 748, 750 (Me. 1976)) (internal quotation marks omitted). 

Regardless of any disparity between the parties’ respective shares, each co-owner 
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has equal property rights including “the right of ownership, the right to preserve 

the heritage of [his or] her labors, and the right to pass the property to [his or] her 

heirs.” Schnell, 346 N.W.2d at 721. Therefore, in addition to the monetary 

implications of partition, we also consider “ownership of agricultural lands by 

family members[,]” Eli, 1997 S.D. 1, ¶ 15 n.1, 557 N.W.2d at 409 n.1, “the financial 

abilities of the parties to repurchase the land through [a] sale, the location and size 

of the property, the use of the property before and after the sale, and the

sentimental value attached to the parcel,” id. ¶ 16, 557 N.W.2d at 410.

[¶15.] Although the parties directly involved in this litigation are not closely 

related, they each have a family connection to the Ranch’s previous owners. While 

the Barbers are Gartner’s aunt and uncle, Rita Barber and Doug Temple were first 

cousins. According to Temple’s testimony, the Ranch has existed as a family 

operation for several generations, and the circuit court found that the Barbers were 

“happy to see it stay within the family.” Gartner and his wife sold their previous 

home and have resided in the house on the Ranch since Gartner and Doug Temple 

purchased it in 2007. Since that time, the Gartners have also been the “caretakers 

of the ranch and cattle operation[.]” “Given the duration of [Gartner’s] involvement 

with the ranch and [his] sentimental attachment to the land, [his] resistance to a 

partition and sale is logical.” Cf. Schnell, 346 N.W.2d at 721. As we have 

previously noted, South Dakota favors protecting “ownership of agricultural lands 

by family members.” Eli, 1997 S.D. 1, ¶ 15 n.1, 557 N.W.2d at 409 n.1. Thus, this 

factor weighs against a forced sale and supports the circuit court’s decision to 

partition the property in kind.
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[¶16.] Further, the size and use of the property also support the circuit 

court’s decision. The court noted that both parties owned other cattle operations 

and that all three experts agreed that “[t]he [R]anch at issue in this case may be too 

small to constitute a feasible economic unit to support a ranching operation in and 

of itself.” This testimony acknowledges the possibility—perhaps the likelihood—

that partitioning the property will not change its nature as supplemental 

agricultural land. If Temple cannot establish that the Ranch—in its entirety—is a 

feasible economic unit in the first place, then he cannot demonstrate great prejudice 

by arguing that the resulting parcels are not feasible economic units. Regardless of 

the actual probability that the Ranch is capable of functioning as an economic unit, 

we cannot conclude that the circuit court’s finding of fact on this matter, based on 

the testimony of three experts, is clearly erroneous.

[¶17.] Based on the totality of the circumstances discussed above, we are not 

convinced that the circuit court abused its discretion in ordering a partition in kind. 

Temple’s experts established that there was a market for smaller tracts and that 

selling the land as smaller tracts could bring the same, a lower, or a higher price 

than selling the property as one unit. Similarly, because all three experts also 

agreed that even the pre-partition Ranch may not be an economic unit, Temple has 

not proven that the use of the property will necessarily change after partition. In 

fact, it is possible that the only change that will occur is that one noneconomic unit 

will become two noneconomic units. Thus, considering the presumption against 

forced sales and the heightened protection afforded to family-owned agricultural
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land, we cannot say that the circuit court abused its discretion in concluding that 

Temple failed to show that a partition would result in great prejudice.

[¶18.] 2. Whether the circuit court erred in adopting the Referee’s Report.

[¶19.] Temple also claims the circuit court erred in adopting the referees’ 

valuation of the permanent structures located on the property allocated to Gartner. 

Although the Report estimates the market value of those structures at $48,750, 

Ensz testified that the replacement cost of those structures would likely be 

$202,120. Consequently, Temple concludes, the partition is a “huge loss to Temple 

of $153,370”—the difference between the market value and the replacement cost of 

the structures. Citing this Court’s decision in Johnson v. Hendrickson, where we 

said that “a sale may be ordered if it appear[s] to the satisfaction of the court that 

the value of the share of each cotenant, in case of partition, would be materially less 

than his share of the money equivalent that could probably be obtained for the 

whole[,]” 71 S.D. 392, 396, 24 N.W.2d 914, 916 (1946), Temple reasons that the 

partition and corresponding undervaluation of the permanent structures 

demonstrates great prejudice. We disagree.

[¶20.] When a court determines that partition in kind is appropriate, it “must 

appoint three referees unless the parties file written consent for one, in which case 

one only shall be appointed[.]” SDCL 21-45-15. The appointed referees “must make 

a report of their proceedings, specifying therein the manner in which they executed 

their trust, and describing the property divided and the share allotted to each party, 

with a particular description of each share.” SDCL 21-45-20. In response to this 

report, “[t]he court may confirm, change, modify, or set aside the report, and if 

necessary, appoint new referees.” SDCL 21-45-22 (emphasis added). Thus, a 
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referees’ report constitutes only a “proposal for the court’s consideration.” 

Englehart, 1997 S.D. 84, ¶ 23, 566 N.W.2d at 157.

[¶21.] In essence, Temple argues that because the court had the power to

modify the Report, and because the Report—according to Temple—undervalued the 

permanent structures on the Ranch, “[t]he trial court . . . clearly made reversible 

error in adopting the Referee’s Report without adjustment or change.” However, 

Temple does not cite any authority to support his use of the replacement cost of the 

permanent structures awarded to Gartner, rather than their market value. Indeed, 

the use of such a value would make little sense and would be contrary to prior 

procedure. See Englehart, 1997 S.D. 84, ¶ 23, 566 N.W.2d at 157 (discussing a 

court’s review of the referees’ “methods used to arrive at the fair market value” of 

parcels). Even if Temple were able to muster such support, however, a party 

demanding the sale of property must demonstrate the “effect [of a partition in kind] 

upon all parties involved, not just those advocating a sale.” See Eli, 1997 S.D. 1, ¶ 

15, 557 N.W.2d at 410; Hendrickson, 71 S.D. at 396, 24 N.W.2d at 916; Schnell, 346 

N.W.2d at 717 (“[T]he question in a partition action is whether or not partition can 

be accomplished without great prejudice to the owners; not to one of the owners, but 

to all of them.”). Even if Temple’s argument had merit, the undervaluation of 

permanent structures on the partitioned property affects only him. Thus, such an 

undervaluation could potentially affect only the amount of property distributed to 

him under the partition, not militate against a partition in kind.

[¶22.] 3. Whether the circuit court erred in ordering Gartner to make a 

compensatory cash payment to Temple instead of awarding more 

land to Temple.
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[¶23.] Finally, Temple argues that the circuit court should have awarded him 

more land in order to minimize the compensatory payment. Temple asserts that 

the compensatory payment constitutes a forced sale of approximately 200 additional 

acres of land. In support of his theory, Temple cites Englehart for the proposition 

that a compensatory payment should be kept to a minimum. However, in 

Englehart, we made no such conclusion; rather, we simply held that the circuit 

court did not abuse its discretion in approving a referees’ recommendation that 

“equally divided the property with respect to the quality and quantity of the 

property with a minimum amount of owelty.” 1997 S.D. 84, ¶ 23, 566 N.W.2d at 

157. While minimizing a compensatory payment may be preferable when possible,

“a trial court has broad discretion in fashioning an equitable remedy[.]” Lien v. 

Lien, 2004 S.D. 8, ¶ 27 n.3, 674 N.W.2d 816, 825 n.3. Temple has the burden of 

showing that the circuit court abused its discretion in adopting the partition 

recommendation of the referees—who, collectively, determined that the most 

reasonable division of the property at issue should follow the natural boundary of 

the White River. Temple has not met his burden, and we cannot say that the circuit 

court’s decision lies outside the range of permissible choices.

Conclusion

[¶24.] “[A]lthough a court must occasionally order a sale in an appropriate 

case, it is obnoxious to compel a person to sell his property.” Eli, 1997 S.D. 1, ¶ 16, 

557 N.W.2d at 410 (quoting Schnell, 346 N.W.2d at 721) (internal quotation marks 

omitted). This is not one of those occasional cases when an order to sell is 

appropriate. After reviewing the record, we are not convinced that the circuit court 
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clearly erred in its relevant factual findings. Nor are we convinced that the court 

abused its discretion in ordering a partition of the Ranch according to the referees’ 

recommendation outlined in the Report. Consequently, we affirm.

[¶25.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.