## Facts

- Donald Wittinger, Kenneth Wittinger, and Alfred Wittinger (brothers) inherited and owned equal, undivided interests as cotenants in Dunn County, North Dakota farmland.
- Kevin Schmidt leased the farmland from the Wittinger brothers under a lease that included a purchase option.
- Schmidt, Donald, and Kenneth sued Alfred seeking specific performance of Schmidt’s purchase option or, alternatively, a partition sale; the specific-performance claim was later withdrawn.
- Donald and Kenneth also sought compensatory damages from Alfred, alleging he failed to pay his pro rata share of farm expenses and property taxes and refused to sign documents needed to receive federal farm-program payments.
- The farm’s physical characteristics made physical division difficult: a river ran through the property, cutting off portions from convenient access to the nearest road, and some areas lacked access to running water.
- Alfred filed a counterclaim seeking damages tied to alleged losses in value and payments (including government and CRP-type payments).
- After a bench trial at which Alfred did not appear and was not represented by counsel, the district court ordered a partition sale with proceeds divided equally among the three cotenants, awarded Donald and Kenneth compensatory damages for expenses/taxes and for lost federal program payments, and dismissed Alfred’s counterclaim.
- Alfred appealed, challenging the order of a partition sale and the compensatory damages award.

## Issues

1. Did the district court err by ordering a partition sale rather than a partition in kind of the farmland?
2. Could Donald and Kenneth recover compensatory damages for loss of federal farm-program payments based on Alfred’s refusal to sign program documents?

## Decision

- Affirmed the judgment ordering a partition sale because the district court’s finding that partition in kind could not be made without great prejudice to the owners was not clearly erroneous.
- Reversed the portion of the compensatory damages award based on loss of federal farm-program payments because that award was not supported by the record evidence.
- Left intact the compensatory damages tied to Alfred’s failure to pay his share of expenses and taxes, and did not reinstate Alfred’s counterclaim.
- Affirmed in part and reversed in part (with further proceedings as needed to conform the judgment to the opinion).

## Legal Principles

- Partition in kind is generally preferred, but a court may order a partition sale when partition in kind cannot be made without great prejudice to the owners.
- Whether an in-kind partition would cause great prejudice is a question of fact reviewed on appeal under the clearly erroneous standard.
- A cotenant who pays more than his share of necessary common expenses (such as property taxes and farm expenses necessary to preserve the property) may seek contribution from the other cotenants.
- Compensatory damages must have an adequate evidentiary basis in the record; an award lacking such support cannot stand.
- Absent a supported legal theory and record proof, a cotenant is not liable in damages for another cotenant’s loss of payments connected to participation in voluntary federal farm programs.

## Conclusion

The North Dakota Supreme Court upheld a partition sale of the Wittinger brothers’ jointly owned farm because the district court’s great-prejudice finding was supported by the farm’s conditions and the practical limits on an in-kind split, but it reversed the part of the damages award that compensated Donald and Kenneth for lost federal farm-program payments because the record did not support awarding those losses as damages.


Schmidt v. Wittinger, 687 N.W.2d 479 (2004)