#### BARNETT et al. v. BARNETT.

No. 6665.

Court of Appeal of Louisiana. Second Circuit.

Oct. 28, 1943.

Rehearing Denied Dec. 2, 1943.

Campbell & Campbell, of Minden, for appellant.

Love & Bailey, of Shreveport, for appel-lees.

DREW, Judge.

Spurgeon H. Barnett, Gideon F. Barnett, Ellis M. Barnett and Thomas B. Barnett instituted this suit against their brother, Andrew L. Barnett, seeking a partition in kind of 100 acres of land situated in Bossier Parish, Louisiana, and owned equally in indivisión by the five brothers. They pray that appraisers and experts be appointed to value said property and to report whether same is divisible in kind. The court appointed T. J. Caldwell, Assessor of Bossier Parish, and D. E. Burchett, the Parish Surveyor of Bossier Parish, to value said property and report whether it was divisible in kind or not.

Defendant answered denying that the tract of land could be divided in kind without diminishing its value, and after trial below, the court rendered judgment ordering the property partitioned by licitation. Defendant has perfected an appeal to this court and plaintiffs have answered the appeal praying that the judgment be amended by ordering a partition in kind.

On the day of argument here appellant in open court abandoned his appeal and asked that it be dismissed. Appellees insist that the issue raised again by their answer to the appeal be passed upon by the court and that a partition in kind be ordered.

The 100-acre tract of land involved was once the home of the litigants here and their father and mother. It has been many years since any one lived on the land and at the present time there are no improvements of any kind on the place, no house and no fences. All the timber, including the pulpwood, has been cut and removed, with the exception of a few oak and pine trees scattered over the tract. The property has not been in cultivation for many years and there is no running water on the 100 acres, however, there is a drain which in wet weather provides some water. The land is assessed at $4.50 per acre.

There is a dirt road which runs through the place and defendant contends that if the property were divided in kind, some of *150the tracts would not have a frontage on the road. The experts appointed by the court in a written report found the property can be divided in kind with each of the five brothers having a tract of equal value and all five brothers having a frontage on both sides of the road. They attach to their report a map prepared by them showing how the property can be aqually divided.

Both experts testified at length on the trial of the case, — one is a civil engineer and the other a surveyor. They are positive that the division of the 100 acres, as proposed by them, would not diminish the value of the property and that each of the five brothers would receive a tract of land of equal value of the others. There is no testimony in the record to the contrary which can overcome the testimony of the experts appointed by the court.

We therefore conclude that the judgment of the lower court should be amended to order the partition in kind instead of by licitation of the following described property: W% of SEJ4 of SE14 of Section 25; Twp 23 North, Range 12 West, containing 20 acres, located in Bossier Parish, Louisiana; SW^ of SE% of Section 25 and NWj4 of NE*4 of Section 36, Twp 23 North, Range 12 West, containing 80 acres, located in Bossier Parish, Louisiana; and in all other respects it be affirmed, and it is so ordered, adjudged and decreed.