This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-0727

John W. Conzemius, et al., 

Respondents, 

vs. 

David J. Finnegan, et al., 

Appellants.

Filed January 25, 2016

Affirmed

Klaphake, Judge*

Dakota County District Court

File No. 19-CX-04-007561

Steven J. Weintraut, Siegel, Brill, P.A., Minneapolis, Minnesota (for respondents)

Dennis B. Johnson, Jeffrey D. Bores, Gary K. Luloff, Chestnut Cambronne PA, 

Minneapolis, Minnesota (for appellants)

Considered and decided by Bjorkman, Presiding Judge; Smith, Judge; and 

Klaphake, Judge. 

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

This appeal arises from the partition of two parcels of land. Appellants David and 

Karen Finnegan and the David J. Finnegan 2012 Irrevocable Trust challenge the district 

 * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10. 
2

court’s partition order awarding them parcel A, awarding respondents John and Joan 

Conzemius and Farmer John L.P. parcel B, and ordering respondents to pay appellants 

owelty to equalize the partition. We affirm. 

D E C I S I O N

The district court is obligated to follow the statutory partition procedure, but within 

that framework, the district court

may exercise its general equitable powers and resort to the 

most advantageous plans which the nature of the particular 

case admits in effecting, without great prejudice to any of the 

owners, a partition of one or more tracts, whether such partition 

be accomplished by a division in kind, by sale, or by any 

practical combination of both methods.

Swogger v. Taylor, 243 Minn. 458, 466-67, 68 N.W.2d 376, 383 (1955). We review the 

district court’s exercise of its equitable powers for an abuse of discretion. Nadeau v. Cty. 

of Ramsey, 277 N.W.2d 520, 524 (Minn. 1979). But we review the district court’s findings 

of fact for clear error. Anderson v. Anderson, 560 N.W.2d 729, 730 (Minn. App. 1997). 

John and Joan Conzemius (the Conzemiuses) purchased farmland near Hastings in 

1971. The property consists of two 160 acre sections that intersect at the northwest corner 

of the lower section and the southeast corner of the upper section. The upper section is 

divided into two parcels—A and B, referred to collectively as section 3—of approximately 

equal size. The lower section is referred to as parcel C (or section 10). 
3

Shortly after purchasing the property, the Conzemiuses sold an undivided two-thirds 

interest to John Conzemius’s sister,

1 who then sold the interest to respondent David 

Finnegan.

2

 Prior to Finnegan’s purchase, the Conzemiuses paid for and installed a well on 

section three, a well on section ten, and irrigation equipment on both sections. The parties 

agree that the Conzemiuses own the irrigation equipment. The district court determined 

that both parties own the wells according to their interests in the land. 

The Conzemiuses sued for partition, asking the district court to award them the 

northwest 43.31 acres of section 3 (parcels A and B) and the northeast 50.838 acres of 

section 10 (parcel C). Under this plan, the Conzemiuses would receive the two wells on 

the property and all irrigation equipment. Finnegan asked the court to sell the property at 

auction. At trial, the parties stipulated to a value of $21,000 per acre for parcel A and 

$14,000 per acre for parcel B. 

The district court found that partitioning parcel C in the manner proposed by the 

Conzemiuses would cause Finnegan great prejudice. The in-kind partition would leave 

Finnegan without a well or irrigation equipment on his land. The district court also found 

that “farmland is currently at a record high value” and “the best use of [parcel C] is to sell 

it.” The district court ordered parcel C sold at auction.

3

 

 1 The Conzemiuses subsequently conveyed three-fourths of their interest in the property to 

Farmer John LP, which they own together with their children and grandchildren. For 

convenience, this opinion refers to the Conzemiuses as the owners of the property interest.

2 David Finnegan subsequently transferred his interest to Karen Finnegan and the David J. 

Finnegan 2012 Irrevocable Trust. For convenience, this opinion refers to David Finnegan 

(Finnegan) as the owner of the property interest.

3 On appeal, neither party challenges the disposition of parcel C.
4

After the auction, the district court addressed parcels A and B. The district court 

again was concerned that the partition plan proposed by the Conzemiuses would leave 

Finnegan without a feasible and cost-effective irrigation method. But, unlike parcel C, the 

district court believed that a sale would not be advantageous for the parties because of the

future development value of parcels A and B. The district court devised a new partition 

plan. Under the district court’s plan, Finnegan received the entirety of the more valuable 

parcel A and the Conzemiuses received the entirety of parcel B. Finnegan also received

the well on parcel A and the irrigation equipment. 

Using the values the parties stipulated to at trial, the court determined that this 

partition plan would leave Finnegan $186,014 short of his two-third interest in parcels A 

and B. The court offset the $103,900 value of the irrigation equipment from this amount 

and awarded Finnegan an $82,114 owelty to equalize the partition.4

Finnegan first argues that by creating an easement for irrigation purposes the district 

court’s order causes him great prejudice by forcing him to continue to cooperate with the

Conzemiuses. Finnegan claims that the district court’s order is contradictory because it 

finds that the parties have a poor relationship but forces them to work together anyway. 

Finnegan maintains that the only way to accurately value parcels A and B and appropriately 

compensate the parties is to sell the parcels at auction.

 4 “Owelty” is “[e]quality as achieved by a compensatory sum of money given after an 

exchange of parcels of land having different values or after an unequal partition of real 

property.” Black’s Law Dictionary 1214 (9th ed. 2009). 
5

Minn. Stat. § 558.01 (2014) provides that when two or more persons own undivided 

interests in real property an action may be brought to partition the property “according to 

the respective rights and interests of the parties interested therein, or for a sale of such 

property, or a part thereof, if it appears that a partition cannot be had without great prejudice 

to the owners.” “Generally, partition in kind results in great prejudice to the owners where 

the value of each share if [physical] partition is made will be materially less than the share 

of money equivalent that could probably be had on a sale of the whole.” Beebout v. 

Beebout, 447 N.W.2d 465, 467 (Minn. App. 1989) (quotation omitted). “The law favors 

partition in kind, as opposed to partition by sale, as the former does not force a person to 

sell his or her private property.” Id. “The person requesting a sale has the burden of 

proving that partition in kind cannot be made without great prejudice to the owners.” 

Anderson, 560 N.W.2d at 730-31. The district court’s finding on the issue of great 

prejudice is a finding of fact that “should be upheld unless it is clearly erroneous.” Beebout, 

447 N.W.2d at 467 (quotation omitted). 

The district court specifically found that while the easement and the overall postpartition irrigation plan may be an “irritation” to Finnegan they do not cause him “great 

prejudice.” Under the district court’s plan, Finnegan owns all the irrigation equipment on 

parcel A and has an easement to use the few portions of the irrigation equipment on parcel 

B. The Conzemiuses agreed to allow Finnegan to use the equipment on parcel B and enter 

parcel B to make any necessary repairs to the equipment. The Conzemiuses also agreed to 

build their own irrigation system on parcel B. The cooperation required between the parties 

is minimal. This is especially true because Finnegan does not personally farm the property 
6

but rents it to a third party. Finnegan therefore will not have to deal directly with the 

Conzemiuses on any irrigation issues. 

Finnegan has presented no evidence that the easement or the general irrigation plan 

envisioned by the district court will in any way impair the value of parcel A. Using the 

stipulated values of parcels A and B and including the owelty payment ordered by the 

district court,5 Finnegan was fully compensated for his two-thirds interest in the parcels. 

Accordingly, the district court’s finding that Finnegan did not suffer great prejudice as a 

result of the partition is not clearly erroneous.

Finnegan next argues that it was an abuse of discretion for the district court to order 

owelty because owelty is generally discouraged by the law and by using the stipulated 

values of parcels A and B the district court may have “misstated the proper amount of 

compensation.” Finnegan again claims that the parcels should be sold.

Minn. Stat. § 558.11 (2014) provides that “[w]hen it appears that partition cannot 

be made equal between the parties without prejudice to the rights or interests of some, the 

court may adjudge compensation to be made by one to another for equality of partition.” 

But “[o]welty should be decreed with caution.” Hoerr v. Hoerr, 140 Minn. 223, 226, 165 

N.W. 472, 474 (1917), aff’d, 140 Minn. 233, 167 N.W.2d 735 (1918). Owelty “should not 

be decreed except when necessary to make an equitable and fair division,” and “[a] sale on 

partition may offer the preferable method.” Id. “Nonetheless, the method of owelty should 

 5 Despite indications to the contrary in his brief, Finnegan’s attorney insisted at oral 

argument that Finnegan is not seeking to withdraw the parties’ stipulation to the values of 

parcels A and B.
7

be used when an equal division cannot be had without great prejudice to the owners and a 

sale is likewise disadvantageous.” Anderson, 560 N.W.2d at 731. 

Because of the unequal value of parcels A and B, the unequal interests of the parties, 

the presence of only one well on the two parcels, and the Conzemiuses’ ownership of the 

irrigation equipment, any partition in kind strictly in line with the party’s interests would 

make it very difficult for Finnegan to irrigate his property. Under the Conzemiuses’ 

partition plan for example, Finnegan could only irrigate his property by spending a large 

sum of money for new irrigation equipment and either buying water from the Conzemiuses 

or spending additional funds to install a well. The district court was also concerned that 

splitting parcels A and/or B into smaller parcels, as proposed by the Conzemiuses’ partition 

plan and necessitated by any strict partition of the property, would have reduced its

attractiveness to potential developers and made it difficult for either party to sell their 

property for development without the cooperation of the other party. As the district court 

found, a strict in-kind partition according to the parties’ interests would have caused great 

prejudice to the parties.

A sale of parcels A and B was also disadvantageous. Finnegan argues that the 

district court found that the best use of parcels A and B was to be sold and then ignored its 

own finding. He is mistaken. The district court determined that because of the strong 

market for farmland the best use of parcel C was to be sold. But the district court found 

that both parcels A and B have significant development potential. This finding was 

supported by the testimony of an appraiser, the testimony of the Hastings Community 

Development Director, and a tentative agreement the parties had in 2005 to sell the parcels 
8

to a developer for $120,000 per acre. The district court found that a sale of the property 

would have resulted in at least one of the parties losing the opportunity to benefit from the 

property’s potential increase in value in the coming years. The district court also found 

that the property is an important part of the Conzemiuses’ family farm. Sale of parcels A 

and B was disadvantageous because it would have prevented the parties from profiting on 

the properties’ rise in value, and it would have prevented the Conzemiuses from farming 

any portion of parcels A, B, or C. 

The district court’s partition allows Finnegan to easily irrigate his property. By

keeping both parcels intact, the district court also partitioned the property in a way that 

preserves the property’s development potential and allows Finnegan to sell his property to 

a developer without cooperation from the Conzemiuses. In addition, the partition allows 

parcel B to remain part of the Conzemiuses’ family farm. 

Finally, Finnegan argues that the district court erred in determining the amount of 

owelty. But the parties stipulated to the values of parcels A and B and the district court 

properly used those values to determine the owelty payment. Combined with parcel A, the 

owelty payment fully compensates Finnegan for his two-thirds interest in parcels A and B. 

We conclude that it was not an abuse of discretion for the district court to order partition 

in kind and equalize the partition by requiring the Conzemiuses to pay owelty. 

Affirmed.