- 708 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

FTR Farms, Inc., a Nebraska corporation, 

appellee, v. Rist Farm, Inc., a Nebraska 

corporation, appellant, and Eugene 

Wesley Dowell and Mary L. 

Dowell, husband and wife, 

et al., appellees.

___ N.W.2d ___

Filed May 1, 2020. No. S-19-438.

1. Partition: Equity: Appeal and Error. A partition action is an action in 

equity and is reviewable by an appellate court de novo on the record.

2. Partition. The purpose of a partition action is to divide a jointly owned 

interest in real property so that each owner may enjoy and possess in 

severalty.

3. ____. One of several tenants in common has an absolute right to a 

partition of their real estate, in the absence of an agreement to, or other 

impediments to, the contrary.

4. ____. As between a partition in kind or sale of land for division, the 

courts will favor a partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property against 

his will, which, it has been said, should not be done except in cases of 

imperious necessity.

5. ____. A sale in partition cannot be decreed merely to advance the interests of one of the owners, but before ordering a sale, the court must 

judicially ascertain that the interests of all will be promoted.

6. ____. The generally accepted test of whether a partition in kind would 

result in great prejudice to the owners is whether the value of the share 

of each in case of a partition would be materially less than the share of 

the money equivalent that could probably be obtained for the whole.

7. ____. Owelty addresses a disparity in the value of partitioned parcels 

and is the payment of money required when property is not susceptible 

of division into exactly equal shares to make the portions of property 

respectively assigned to the cotenants of equal value.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/12/2020 08:08 AM CDT
- 709 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

8. Partition: Jurisdiction. A court acquiring jurisdiction of property for 

partition acquires complete jurisdiction of the property and affords 

complete justice to all parties in that action with respect to the subject matter.

9. Partition: Equity. In a partition in equity, the court does not act in a 

merely ministerial character, in obedience to the call of some or all of 

the parties, but administers relief in such manner as to do equal and 

exact justice as far as possible.

10. Partition. In a partition in kind, where the premises are incapable of a 

fair division, the court has power to award a pecuniary compensation or 

charge upon the land.

11. ____. Owelty is predicated upon a division. There can be no owelty in 

the absence of a division of property.

12. Partition: Equity. Owelty should be rarely utilized and only when it is 

equitably necessary.

13. Equity: Evidence: Appeal and Error. In an appeal of an equity action, 

where credible evidence is in conflict on a material question of fact, an 

appellate court considers and may give weight to the fact that the trial 

court heard and observed the witnesses and their manner of testifying, 

and accepted one version of the facts rather than another.

14. Partition: Presumptions. While it is generally true that there is a presumption in favor of partition in kind, it is likewise true that the character and location of the property, or the amount of the interest sought to 

be assigned, or both, may be such that it will be presumed that partition 

in kind cannot be made.

Appeal from the District Court for Richardson County: 

Julie D. Smith, Judge. Affirmed and remanded for further 

proceedings.

John Hahn, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, 

Tannehill & Hahn, L.L.P., for appellant.

Michael R. Dunn, of Halbert, Dunn & Halbert, L.L.C., for 

appellees Eugene Wesley Dowell et al.

Jeffery W. Davis, of Smith, Schafer, Davis & Gaertig, 

L.L.C., for appellee FTR Farms, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
- 710 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

Cassel, J.

INTRODUCTION

In this appeal from proceedings to partition real estate, the 

principal issue is whether partition in kind can be decreed using 

“owelty”—that is, a monetary payment to equalize values. 

Because the law has long favored partition in kind, it empowers a court of equity to use that device to accomplish full and 

complete justice. But the power should be invoked sparingly. 

Here, we are not persuaded that owelty would enable division 

in kind without great prejudice to the owners. We affirm the 

judgment and remand the cause for further proceedings.

BACKGROUND

Property and Owners

FTR Farms, Inc., and Rist Farm, Inc., each own an undivided one-half interest in a 311-acre tract of farmland in 

Richardson County, Nebraska. A winding river—which the 

record identifies variously as the Nemaha River, Little Nemaha 

River, or Big Nemaha River—creates a natural divide through 

roughly the middle of the property.

The river separates the property into two tracts: north and 

south. The north tract of the property is approximately 135 

acres. The south tract is approximately 176 acres. Both tracts 

have high quality soil, but the north tract’s soil is marginally 

better. A bridge connects both tracts of the property.

In June 2011, FTR Farms and Rist Farm purchased the 

property from Eugene Wesley Dowell and Mary L. Dowell 

for $1,750,000. The buyers executed a promissory note to the 

Dowells for $1,312,500. The difference was paid at or before 

closing. The Dowells have a purchase money security interest 

secured by a deed of trust. Prior to the partition action, FTR 

Farms and Rist Farm each paid half of the annual payment on 

the promissory note.

Partition Ownership

In March 2017, FTR Farms filed a complaint for partition 

of the property, seeking partition by sale. It alleged that the 
- 711 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

property could not be partitioned in kind according to their 

respective interests without prejudice to their rights. In Rist 

Farm’s answer, it alleged that the property could be physically 

partitioned without great prejudice to the parties. The answer 

also asserted that partition by sale would be harmful to the parties’ farming operations.

On FTR Farms’ motion for summary judgment regarding 

ownership, the district court determined that FTR Farms and 

Rist Farm were joint owners of the property as tenants in common. The court ordered that partition be made and appointed 

a referee to recommend whether the property could be partitioned in kind without great prejudice to the owners.

Partition in Kind

The referee inspected the property. He opined that

physical division of the [property] into two separate, 

equal tracts would not be possible and would be impractical and detrimental to the value of [the property], and 

actual partition and division of [the property] between the 

two owners cannot be made, without great prejudice to 

the owners or one of them.

He stated that the property should be sold, so that the sale may 

then be evenly divided between the parties.

FTR Farms and the referee moved to confirm the referee’s 

report and requested sale of the property. At the hearing, FTR 

Farms and Rist Farm submitted appraisals of the property. 

FTR Farms’ expert appraised the property as irrigated and Rist 

Farm’s expert appraised the property as nonirrigated. This table 

summarizes the respective appraisals:

Tract FTR Farms Rist Farm

North $1,084,668 $860,000

South $1,292,925 $1,075,000

Combined $2,367,020 $1,935,000

South - North = $208,257 $215,000

Combined - (North + South) = ($10,573) 0

At the hearing, the referee testified that he recommended 

partition by sale because the north and south tracts were not 
- 712 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

equal in size, the south tract was valued $200,000 more than 

the north side, and he could not find any other feasible way to 

divide the property into equal tracts. He explained that “[his] 

report [was] strictly limited to the notion that if the acres are 

not exactly the same, it cannot be partitioned.”

FTR Farms’ president testified that the property was purchased as a whole and should be sold as a whole. He stated he 

was going through a bankruptcy proceeding and wanted to sell 

the property to pay off his debts. He believed that he would 

receive more equity from the sale of the whole property, rather 

than a sale of half.

At the hearing, Rist Farm argued that the property should 

be partitioned in kind. It argued that Rist Farm should receive 

the south tract and that FTR Farms should receive the north 

tract. Rist Farm indicated that it would be willing “to make up 

a difference or a boot to equalize the valuation of the properties.” Rist Farm’s appraiser testified that if the property were 

sold as a whole versus as a separate parcel, it would have a 

negative impact. She stated that in her experience, there are 

fewer bidders for larger parcels because of financing and cost 

restrictions, whereas the smaller parcels bring more bidders. 

She recommended that the land be sold as two parcels to get 

the best price.

Rist Farm’s president testified that Rist Farm farmed the 

south tract and that FTR Farms farmed the north tract. Each 

party kept their own profits, and each paid half of the yearly 

payment on the promissory note. He explained that if the 

property were sold, he would lose his equity in the land, pay 

capital gains tax, lose his pride because he farmed that land 

since 1980, and lose a portion of his farming operation, as 

well as the profits from it. He stated that if partitioned in 

kind, Rist Farm would prefer the south tract and be willing to pay $215,000 to FTR Farms to equalize the value of 

the property.

At the hearing, the Dowells stipulated that if the property 

were divided and money were to change hands as part of the 

division, the funds paid would be given to the Dowells to 
- 713 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

reduce the debt on the less valuable property and new promissory notes would be put in place to protect the Dowells’ first 

lien position. Alternatively, if the property were sold by the 

referee, the Dowells would be paid in full from the proceeds.

In the district court’s order on the motion to confirm the 

referee’s report, it explained that if it were to divide the 

property in kind, there would be a significant difference in 

size and value between the parcels. It reasoned that the north 

tract would be materially less than the money equivalent 

that could be obtained for FTR Farms’ share of the whole. It 

concluded that “[d]ividing the property in kind would greatly 

prejudice [FTR Farms.]” It declined to adopt Rist Farm’s 

proposal to award owelty to equalize the difference in value, 

because “there is a lack of established authority in Nebraska 

to do so in a situation like this, both in terms of statutes and 

case law.”

The district court found that physical division “cannot be 

made without greatly prejudicing its owners and that this real 

estate should be sold at public auction as provided by law.” It 

authorized the referee to sell the property “as one tract, as two 

separate tracts, or in any manner which might be desirable to 

prospective buyers.”

Partition Sale and Confirmation

A public auction followed. The referee first solicited bids 

for the north and south tracts separately. Although the precise 

high bids for the separate tracts are not in our record, testimony at the confirmation hearing disclosed that the total of 

the highest bids for the individual tracts was $1.6 million and 

that the high bid for the south side was either $920,000 or 

$940,000. The referee then offered the whole property, which 

was bid in for $1.62 million.

The referee moved to confirm the sale. A hearing was held, 

and the parties adduced evidence. Both FTR Farms and Rist 

Farm objected to the confirmation of the sale. They argued 

that the sale price was unreasonable and grossly inadequate. 

Nonetheless, the district court confirmed the sale.
- 714 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

At the confirmation hearing, the Dowells presented evidence 

showing that a notice of default had been given to FTR Farms 

and Rist Farm on November 15, 2018, regarding the debt owed 

to the Dowells, because FTR Farms had failed to pay its half 

of the payment due on November 1.

Appeals

Both FTR Farms and Rist Farm purported to appeal. The 

Nebraska Court of Appeals dismissed the appeal for lack of a 

final order. The district court then held a hearing to determine 

the remaining issues, namely referee’s fees and expenses, attorney fees, supersedeas bond, and oil and gas lease payments. 

The district court determined the fees and resolved the remaining issues.

From this judgment, Rist Farm then filed a timely appeal. 

We moved the appeal to our docket. 1

ASSIGNMENTS OF ERROR

Rist Farm assigns that the district court erred (1) in determining that it did not have authority to award owelty to make 

partition in kind equitable, (2) in ordering partition by sale 

without finding that partition in kind would greatly prejudice 

both owners, and (3) by failing to consider options for partition 

in kind other than what was proposed by Rist Farm.

STANDARD OF REVIEW

[1] A partition action is an action in equity and is reviewable 

by an appellate court de novo on the record. 2

ANALYSIS

We begin with basic, longstanding concepts governing partition actions in Nebraska. Our partition statutes have existed 

from statehood. 3

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 Zornes v. Zornes, 292 Neb. 271, 872 N.W.2d 571 (2015).

3 See Rev. Stat. §§ 802 to 844 (1867).
- 715 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

[2] Recently, we have explained: The purpose of a partition 

action is to divide a jointly owned interest in real property 

so that each owner may enjoy and possess in severalty. 4 This 

articulation differs little from its ancient precedent: The object 

of a partition suit is to assign property, the fee simple title to 

which is held by two or more persons as joint tenants, or tenants in common, to them in severalty. 5

[3] One of several tenants in common has an absolute right 

to a partition of their real estate, in the absence of an agreement to, or other impediments to, the contrary. 6 This also is 

not a new concept. 7 Here, the parties agree on the necessity of 

partition. They dispute between partition in kind and partition 

by sale.

[4] One method is favored over the other. As between a 

partition in kind or sale of land for division, the courts will 

favor a partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property 

against his will, which, it has been said, should not be done 

except in cases of imperious necessity. 8 We have often stated 

this principle or its equivalent. 9 But we have also acknowledged that the preference can be overcome. 10

[5,6] Finally, we have said that a sale in partition cannot be 

decreed merely to advance the interests of one of the owners, 

but before ordering a sale, the court must judicially ascertain 

4 Zornes v. Zornes, supra note 2.

5 Phillips v. Dorris, 56 Neb. 293, 76 N.W. 555 (1898).

6 Malcom v. White, 210 Neb. 724, 316 N.W.2d 752 (1982).

7 See Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938).

8 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

9 See, Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005); Phillips 

v. Phillips, 170 Neb. 733, 104 N.W.2d 52 (1960); Cary v. Armbrust, 160 

Neb. 392, 70 N.W.2d 427 (1955); Trowbridge v. Donner, 152 Neb. 206, 40 

N.W.2d 655 (1950).

10 See Nordhausen v. Christner, 215 Neb. 367, 338 N.W.2d 754 (1983).
- 716 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

that the interests of all will be promoted. 11 Our statute requires 

a court to determine whether “partition cannot be made without 

great prejudice to the owners.” 12 The generally accepted test 

of whether a partition in kind would result in great prejudice 

to the owners is whether the value of the share of each in 

case of a partition would be materially less than the share of 

the money equivalent that could probably be obtained for the 

whole. 13 With these principles in mind, we turn to the specific 

arguments here.

Owelty Permissible

Rist Farm’s first assignment of error attacks the district 

court’s legal conclusion that “there is a lack of established 

authority in Nebraska to [order an award of owelty to offset 

the difference in value] in a situation like this, both in terms 

of statutes and case law.” Rist Farm argues that the district 

court “clearly did have authority to award owelty,” 14 while 

FTR Farms characterizes this as an “attempt[] to read into our 

statutes and case law a concept that simply does not exist.” 15

Here, it is not clear whether the district court determined that 

owelty is never permitted, as FTR Farms argues, or whether 

owelty was unsuited to the circumstances here. While the court 

spoke of a “lack of established authority,” it also referred to 

“a situation like this.” We reject the notion that owelty has no 

place in our partition jurisprudence.

[7] Although the term “owelty” appears only once in our 

reported decisions, 16 it has ancient roots. Under Roman law, 

property owners used full partitioning remedies, including 

payments between cotenants to equalize unequal divisions 

(owelty) and removing and vesting a cotenant’s interest in 

11 In re Estate of McKillip, supra note 8.

12 Neb. Rev. Stat. § 25-2181 (Reissue 2016).

13 In re Estate of McKillip, supra note 8; Trowbridge v. Donner, supra note 9.

14 Brief for appellant at 15.

15 Brief for appellee FTR Farms at 7.

16 See Staats v. Wilson, 76 Neb. 204, 107 N.W. 230 (1906).
- 717 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

the property from a cotenancy (allotment). 17 “Owelty thus 

addresses a disparity in the value of partitioned parcels and 

is the payment of money required when property is not susceptible of division into exactly equal shares to make the 

portions of property respectively assigned to the cotenants of 

equal value.” 18 The modern definition of “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” or “[t]he sum of money 

so paid.” 19

Most states have recognized or, at one time, employed an 

owelty award. 20 States that employ an owelty award authorize 

its use either by common law 21 or statute. 22 Several states have 

reasoned that the use of an owelty award should be rarely 

used and only in cases when it is equitably necessary. 23 Only 

17 See John G. Casagrande, Jr., Note, Acquiring Property Through Forced 

Partitioning Sales: Abuses and Remedies, 27 B.C. L. Rev. 755 (1986).

18 59A Am. Jur. 2d Partition § 154 (2015).

19 Black’s Law Dictionary 1279 (10th ed. 2014).

20 See, generally, 59A Am. Jur. 2d, supra note 18 (examining cases across 

several jurisdictions utilizing owelty award in partition action).

21 See, e.g., Sawin v. Osborn, 87 Kan. 828, 126 P. 1074 (1912); Waller v. 

George, 322 Mo. 573, 16 S.W.2d 63 (1929); Chesmore v. Chesmore, 484 

P.2d 516 (Okla. 1971); Updike v. Adams, 24 R.I. 220, 52 A. 991 (1902).

22 See, e.g., Ala. Code § 35-6-25 (2014); Cal. Civ. Proc. Code § 873-250 

(2015); Idaho Code Ann. § 6-541 (2010); 735 Ill. Comp. Stat. 5/17-105 

(2018); Me. Rev. Stat. Ann. tit. 14, § 6515 (2020); Mass. Gen. Laws ch. 

241, § 14 (2004); Mich. Comp. Laws § 600.3336 (2013); Minn. Stat. 

§ 558.12 (2018); Miss. Code Ann. § 11-21-33 (2019); Mont. Code Ann. 

§ 70-29-209 (2019); Nev. Rev. Stat. § 39.440 (2019); N.H. Rev. Stat. Ann. 

§ 547-C:22 (2019); N.Y. Real Prop. Acts. Law § 943 (2009); Or. Rev. Stat. 

§ 105.250 (2019); 42 Pa. Stat. and Cons. Stat. Ann. § 1562 (West 2014); 

Tenn. Code Ann. § 29-27-117 (Supp. 2018); Va. Code Ann. § 8.01-83 

(2015); Wash. Rev. Code § 7.52.440 (2017).

23 See, Harris v. Johnson, 42 Ill. App. 3d 751, 356 N.E.2d 1107, 1 Ill. Dec. 

825 (1976); Burns v. Ambler, 302 Mich. 526, 5 N.W.2d 451 (1942); Bagg 

v. Osborn, 169 Minn. 126, 210 N.W. 862 (1926); Waller v. George, supra 

note 21.
- 718 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

Kentucky has expressly held that an owelty award is in opposition to its partition statutes and, therefore, is not recognized. 24

[8] Rist Farm concedes that a Nebraska court’s authority 

to award owelty “comes not from statute, as in some jurisdictions, but rather is inherent in its broad equitable powers.” 25

In Nebraska, a court acquiring jurisdiction of property for 

partition acquires complete jurisdiction of the property and 

affords complete justice to all parties in that action with 

respect to the subject matter. 26

A brief digression is necessary. For most of Nebraska’s history, its probate courts lacked jurisdiction of partition actions, 

even where the real estate was the property of a decedent’s 

estate. 27 For that reason, all of Nebraska’s partition litigation 

originated in a district court until relatively recently. 28

We have used the term “owelty” only one time—in Staats 

v. Wilson.

 29 There, we rejected a collateral attack upon a prior 

partition judgment, stating that “[t]he conduct of the widow 

and the heirs regarding the homestead amounted to a partial 

parol partition of the land with owelty.” 30 Thus, we used the 

term consistently with the definition, but as a description and 

not as a form of relief.

But without using the term “owelty,” we have implemented 

equalization payments in two cases involving partition of real 

estate. One case is ancient; the other quite recent.

In Lynch v. Lynch,

 31 the heirs of a 66-foot-wide platted lot 

in Omaha, Nebraska, sought partition of three undivided interests: one-sixth, one-third, and one-half. The property was 

24 Wrenn v. Gibson, 90 Ky. 189, 13 S.W. 766 (1890).

25 Brief for appellant at 16.

26 See Fairley v. Kemper, 174 Neb. 565, 118 N.W.2d 754 (1962).

27 See In re Estate of Kentopp. Kentopp v. Kentopp, 206 Neb. 776, 295 

N.W.2d 275 (1980).

28 See id.

29 Staats v. Wilson, supra note 16. 

30 Id. at 210, 107 N.W. at 232 (emphasis supplied).

31 Lynch v. Lynch, 18 Neb. 586, 26 N.W. 390 (1886).
- 719 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

partitioned in kind: The one-half interest heir received the east 

44 feet of the property and the one-third interest heir received 

the west 22 feet. The value of the one-sixth interest and onehalf of the property’s rents were charged as a lien upon the east 

44 feet. The sole question on appeal was whether the district 

court had the power to render the monetary judgment to equalize the division in kind.

[9,10] In holding that it did, we articulated two principles. 

First, in a partition in equity, “the court does not act in a 

merely ministerial character, in obedience to the call of some 

or all of the parties, but administers relief in such manner as 

to do equal and exact justice as far as possible.” 32 Second, in a 

partition in kind, “where [the] premises are incapable of a fair 

division[,] the court has power to award a pecuniary compensation or charge upon the land.” 33 Thus, without using the term, 

we recognized the concept of owelty.

Much more recently, in In re Estate of McKillip,

 34 we implemented an owelty award without using the term. Three heirs 

inherited four tracts of land and cash. Only two of the four 

tracts were contiguous. After a partition by sale, an appeal 

was taken. We reversed, holding that the property should be 

partitioned in kind by one heir receiving the two contiguous 

tracts and each of the other heirs receiving one of the remaining tracts. We granted complete relief by fashioning a remedy 

for the unequal division of land using cash from the remaining 

estate to equalize the value in the division. This met the definition of owelty: a pecuniary sum given to a party receiving a 

smaller valuation of land to equalize the distribution.

For the sake of completeness, we note that we have implemented a partition in kind of promissory notes. 35 In that case, 

we directed the district court upon remand to implement an 

equalization payment as necessary.

32 Id. at 592, 26 N.W. at 393.

33 Id.

34 In re Estate of McKillip, supra note 8.

35 See Zornes v. Zornes, supra note 2.
- 720 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

[11,12] These cases teach that owelty is permitted in partition cases. But it has been used sparingly and only in particular 

circumstances. With respect to real estate, we have employed 

the concept only twice in a century and a half. We agree with 

a Minnesota court that “[o]welty is predicated upon a division. There can be no owelty in the absence of a division of 

property.” 36 And we agree with the many states stating that 

owelty should be rarely utilized and only when it is equitably necessary. 37 That owelty is permitted does not answer 

the question whether it was appropriate here. We now turn to 

that question.

Partition in Kind or by Sale

Rist Farm next assigns that the district court erred in ordering partition by sale without finding that partition in kind 

would greatly prejudice both owners. In making this argument, 

Rist Farm relies upon the use of owelty to equalize the difference in value between the tracts on each side of the river.

[13] In our de novo review of this question, we accord some 

deference to the district court. In an appeal of an equity action, 

where credible evidence is in conflict on a material question 

of fact, an appellate court considers and may give weight to 

the fact that the trial court heard and observed the witnesses 

and their manner of testifying, and accepted one version of the 

facts rather than another. 38

We also note that we have the advantage of hindsight in that 

our record includes the actual sale price and some information 

regarding the bidding at the partition sale. In Trowbridge v. 

Donner,

 39 where we reversed a partition by sale and mandated 

partition in kind, we considered the sale results in assessing whether partition in kind would greatly prejudice the 

36 Bagg v. Osborn, supra note 23, 169 Minn. at 129, 210 N.W. at 863.

37 See, Harris v. Johnson, supra note 23; Burns v. Ambler, supra note 23;

Bagg v. Osborn, supra note 23; Waller v. George, supra note 21.

38 Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).

39 Trowbridge v. Donner, supra note 9.
- 721 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

owners. We follow that precedent and take the sale results into 

consideration.

[14] We have already set forth the governing principles 

favoring partition in kind and prohibiting partition by sale to 

advance the interests of one owner, and articulating the test for 

determining whether a partition in kind would result in great 

prejudice to the owners. We do not repeat them here. But we 

also recognize that while it is generally true that there is a presumption in favor of partition in kind, it is likewise true that 

the character and location of the property, or the amount of the 

interest sought to be assigned, or both, may be such that it will 

be presumed that partition in kind cannot be made. 40

Whether partition in kind will result in great prejudice to 

the parties requires comparing two amounts. 41 The first is the 

amount an owner would receive if the property were divided in 

kind and the owner then sold his portion of the property. 42 The 

second is the amount each owner would receive if the entire 

property were sold and the proceeds were divided among the 

owners. 43 If the first amount is materially less than the second 

amount, great prejudice has been shown. 44

FTR Farms’ president testified that the sale of the whole 

would bring a greater price than the sum of the sales of the 

separate tracts. Rist Farm’s appraiser, on the other hand, opined 

that sales of the separate tracts would bring more bidders 

and “would be the best at trying to get the most for the two 

pieces.” We give weight to the district court’s observation of 

the witnesses and its implicit credibility assessment in favor 

of FTR Farms. Moreover, the sale results support FTR Farms’ 

president’s opinion. The highest bids for the individual tracts 

totaled $1.6 million, but the entire tract sold for $1.62 million. 

We cannot characterize this difference as immaterial.

40 Nordhausen v. Christner, supra note 10.

41 In re Estate of McKillip, supra note 8.

42 Id.

43 Id.

44 Id.
- 722 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

Owelty cannot solve the problem resulting from the whole 

property selling for a greater price than the high bids for the 

individual tracts. Bearing in mind the In re Estate of McKillip

explanation of the calculations regarding the test to determine 

great prejudice, we illustrate the problem. 45 To determine the 

first number of the great prejudice test—the amount the owner 

of each tract would receive if divided in kind and then sold—

we use the high bids for the individual tracts, which the record 

shows totaled $1.6 million. We use the higher number related 

by Rist Farm’s president: $940,000 for the south and, by calculating the corresponding amount, $660,000 for the north. 

To determine the second number—the amount each would 

receive from the sale of the whole and the division of proceeds—we divide the sale price of $1.62 million equally, which 

is $810,000 apiece. Thus, Rist Farm would receive $130,000 

more by selling the south tract than its share from the sale of 

the total property. FTR Farms, on the other hand would receive 

$150,000 less from the sale of the north tract than its share of 

the sale of the total. In other words, owelty of $130,000 (Rist 

Farm’s “excess” from sale of the south tract) would greatly 

prejudice FTR Farms by $20,000—the amount by which the 

sale of the whole exceeded the sale of the tracts. Owelty of 

$140,000 would prejudice both parties equally, by $10,000. 

The great prejudice to FTR Farms can be eliminated, but only 

if the owelty is $150,000. This, however, would greatly prejudice Rist Farm by $20,000—again, the amount by which the 

sale of the whole exceeded the sale of the tracts. This table 

shows the calculations:

Whole South North

Individual tract high bids $1,600,000 $940,000 $660,000

Equal division of whole $1,620,000 $810,000 $810,000

Excess or shortage --- $130,000 ($150,000)

Owelty of $130,000 $1,600,000 $810,000 $790,000

Owelty of $140,000 $1,600,000 $800,000 $800,000

Owelty of $150,000 $1,600,000 $790,000 $810,000

45 See id.
- 723 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

If we use Rist Farm’s president’s alternative amount of 

$920,000, the prejudice remains with slightly different numbers. This table shows those calculations:

Whole South North

Individual tract high bids $1,600,000 $920,000 $680,000

Equal division of whole $1,620,000 $810,000 $810,000

Excess or shortage --- $110,000 ($130,000)

Owelty of $110,000 $1,600,000 $810,000 $790,000

Owelty of $120,000 $1,600,000 $800,000 $800,000

Owelty of $130,000 $1,600,000 $790,000 $810,000

No matter what owelty payment is used, great prejudice results 

to either one or both of the parties.

And we cannot disregard the effect of the default by FTR 

Farms and Rist Farm regarding the 2018 payment due to the 

Dowells. The default apparently places both tracts at risk of a 

trustee’s sale, making it quite difficult to retroactively mandate 

a partition in kind. The bankruptcy proceeding, which, in some 

way not clear from the record, relates to FTR Farms, introduces more uncertainty into the partition action.

Ultimately, we are not persuaded that this is a rare circumstance where owelty should be utilized and is equitably required. It differs from the situation in In re Estate of 

McKillip in important ways. 46 In that case, “[t]here was no 

dispute as to the value of the real estate, and there was no 

claim that the value of the real estate as one parcel was greater 

than the value of the sum of the individual tracts.” 47 Here, 

the values were disputed and there was a claim that the value 

of the whole exceeded the sum of the parts. There, the tracts 

were not all contiguous. Here, both were. Here, the disparity 

in the sizes of the tracts made conflict over the amount of 

owelty inevitable. There, the differences in undisputed values 

could be equalized from the balance of the inherited estate. 

Here, owelty would require a payment from one owner to the 

46 See id.

47 Id. at 376, 820 N.W.2d at 877.
- 724 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

other, placing them in irreconcilably conflicting positions, 

particularly where one owner was somehow involved with 

a bankruptcy.

In the district court, Rist Farm did not contend that an equal 

division without owelty was possible. And the record makes it 

clear that even with owelty, partition in kind could not be made 

without great prejudice to one or both of the owners.

Upon our de novo review, we conclude that FTR Farms sustained its burden to establish that partition in kind could not be 

had without great prejudice. It follows that a partition in kind 

was not feasible and that the district court did not err in accepting the referee’s report and ordering partition by sale.

Partition in Kind Alternatives

Rist Farm argues that the district court erred by failing to 

consider all reasonable options for partition in kind before 

partition by sale. It contends that the district court only considered the options it proposed to the court and did not consider 

alternative options to partition that property into equal tracts.

Rist Farm relies upon In re Estate of McKillip for the proposition that the court must consider all alternative methods to 

partition in kind before partition by sale can be ordered. 48 This 

argument is flawed. In In re Estate of McKillip, we reversed 

the district court’s order to partition by sale, because the party 

seeking the sale did not prove that partition in kind would 

greatly prejudice the owners. Here, FTR Farms satisfied its 

burden of proof.

Moreover, neither party presented evidence regarding a division other than one based on the Nemaha River. At this point, 

an argument for an alternative division in kind rests upon pure 

speculation. This assignment also lacks merit.

CONCLUSION

The district court did not err in rejecting the owelty award 

and finding that partition in kind would cause great prejudice 

48 See In re Estate of McKillip, supra note 8.
- 725 -

Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

FTR FARMS v. RIST FARM

Cite as 305 Neb. 708

to the owners. Accordingly, we affirm the district court’s order 

imposing partition by sale. We recognize that the default of 

the 2018 payment to the Dowells and the effect of other payments or defaults regarding that indebtedness not shown in our 

record may affect the ultimate distributions to the parties. Upon 

remand, the district court may make the adjustments necessary 

to achieve complete justice to the parties.

Affirmed and remanded for 

further proceedings.