## Facts

- Larry and Nancy Von Behren owned an undivided three-fourths interest in a 170-acre tract of rural land; Shirley Oberg owned the remaining one-fourth interest.
- The tract was hilly, and a river ran through it, effectively separating a field on the lower portion of the property from the rest of the acreage.
- The Von Behrens filed a petition seeking partition of the property.
- Oberg presented testimony from a witness qualified to give value-related opinions, who stated that the tract would be worth less if kept as one parcel than if divided into smaller tracts.
- The trial court ordered partition in kind rather than ordering a sale of the entire tract.
- The trial court’s division awarded Oberg 50 acres and awarded the Von Behrens 120 acres.
- The Von Behrens appealed, challenging both the choice of partition in kind and the fairness of the resulting division.

## Issues

1. Did the trial court err by ordering partition in kind instead of ordering a sale because a physical division would cause “great prejudice” to the owners?
2. Did the trial court abuse its discretion by confirming a division that allocated 50 acres to the one-fourth owner and 120 acres to the three-fourths owners?

## Decision

- The Missouri Court of Appeals, Eastern District affirmed the judgment.
- The court held that the record supported the trial court’s finding that partition in kind would not result in great prejudice requiring a sale.
- The court held that the challenged allocation (50 acres to Oberg; 120 acres to the Von Behrens) was not shown to be so unequal in value or effect as to require the partition to be set aside.

## Legal Principles

- Partition in kind is preferred; a sale is ordered only when a physical division would cause great prejudice to the owners.
- “Great prejudice” is tested by comparing the value each owner would receive after partition in kind with the money share each would probably receive from a sale of the property as a whole; a sale is justified only if the partitioned shares would be materially less valuable.
- Whether land can be partitioned in kind without great prejudice is a fact-driven determination committed to the trial court.
- A partition in kind need not mirror the parties’ fractional interests in acreage; the aim is a fair division in value considering the land’s character and circumstances.
- Trial courts have broad discretion in accepting or rejecting a proposed division in kind, and appellate review is limited to whether the ruling is supported by the evidence and reflects no abuse of discretion.

## Conclusion

Von Behren v. Oberg affirmed a trial court’s decision to physically divide a 170-acre, hilly tract crossed by a river, where evidence supported that the land could be divided without materially reducing the owners’ value compared with a sale, and where the resulting 50/120-acre allocation was not shown to be unfair in value so as to warrant reversal.


Von Behren v. Oberg, 902 S.W.2d 338 (1995)