## Facts

- Co-tenants in common owned approximately 112.5 acres of inherited agricultural land in Turner County, South Dakota, with one co-tenant holding an undivided one-third interest.
- Two co-tenants sued for partition and requested sale of the land as a single unit with proceeds divided.
- The opposing co-tenant requested partition in kind into three parcels of roughly equal value and testified she wanted to keep the land in the family.
- The tract had a “backward L” shape, consisted of two tax parcels, and lacked significant improvements and rural water.
- Evidence indicated soil quality and agricultural characteristics were generally uniform across the tract.
- Expert testimony indicated the land could be divided into three comparable parcels, each usable as a farm and separately marketable.
- Other evidence indicated the aggregate market value would be approximately 10–20% lower if the property were divided and sold as three smaller parcels rather than sold as a single unit.
- The opposing co-tenant stated she would accept any of the proposed parcels and would grant necessary easements to preserve access and value for the other tracts.
- The circuit court found partition in kind would cause “great prejudice” primarily due to the projected reduction in overall sale price and ordered a public auction sale of the entire tract.

## Issues

1. Whether a projected 10–20% reduction in aggregate market value from dividing co-owned farmland, by itself, constitutes “great prejudice” sufficient to justify a forced sale instead of partition in kind.
2. Whether the evidence that the property could be equitably divided into usable, marketable parcels required partition in kind under South Dakota’s partition statute.

## Decision

- The South Dakota Supreme Court reversed the order directing sale of the property and remanded.
- The court held the record did not support a finding of “great prejudice” sufficient to overcome the preference for partition in kind.
- The court concluded that showing the property would sell for more as a single unit, without more, is insufficient to justify a forced sale when the land is feasibly and fairly divisible into economically usable tracts.

## Legal Principles

- Partition in kind is the preferred remedy; a forced sale is disfavored and permitted only upon proof that partition in kind would result in “great prejudice” to the owners.
- The party seeking a forced sale bears the burden to show “great prejudice.”
- A higher price for the property sold as an undivided whole is a relevant consideration but is not, standing alone, “great prejudice.”
- Evidence that property can be divided into parcels of roughly comparable value that remain usable and marketable weighs strongly against ordering a forced sale.
- Courts may consider non-economic interests (such as a co-owner’s desire to retain family land) when evaluating the equity of partition remedies, consistent with the statutory preference for partition in kind.

## Conclusion

The court held that a modest loss in aggregate value from division does not, by itself, establish “great prejudice” and reversed the forced-sale order because the farmland was feasibly divisible into comparable, usable parcels under the statutory preference for partition in kind.


Eli v. Eli, 557 N.W.2d 405 (S.D. 1997)