25-2181. Report of referees.

If it appears to the referee or referees that partition cannot be made without great prejudice to the owners, they shall so report to the court.

Source

Annotations

Under this section, the referee is required to report to the court if it appears to the referee that partition in kind cannot be made without great prejudice to the owners. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

When the evidence showed that only two of four tracts were contiguous, the tracts had different uses, the tracts would not typically be offered for sale together and would not bring a higher price if sold together, and another party proposed an in-kind distribution that came close to dividing the land into equal thirds based on appraised value, a plaintiff for partition failed to show partition in kind would result in great prejudice to the owners and did not rebut the presumption that real estate should be distributed in kind. In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

Presumption is in favor of partition in kind; however, the character and location of the property, or the amount of interest sought to be assigned, or both, may be such that it will be presumed that partition in kind cannot be made. Nordhausen v. Christner, 215 Neb. 367, 338 N.W.2d 754 (1983).

As between partition in kind or sale of land, partition in kind is preferred. Phillips v. Phillips, 170 Neb. 733, 104 N.W.2d 52 (1960).

The effect of this section, in connection with section 25-2183, is to make uncertain whether property should be partitioned in kind or sold and the proceeds distributed, until a judicial determination of that issue is made by the court. Trowbridge v. Donner, 152 Neb. 206, 40 N.W.2d 655 (1950).

Effect of this section, together with section authorizing court to order sale if satisfied with report, is to make uncertain whether land will be physically divided or sold. Heiser v. Brehm, 117 Neb. 472, 221 N.W. 97 (1928).

Impracticability of partition does not render action adversary; attorney's fees should be allowed if amicable. Smith v. Palmer, 91 Neb. 796, 137 N.W. 843 (1912).