Iowa Court of Appeals Affirms Referee’s Proposed Partition-in-Kind

October 12, 2021 | Kitt Tovar Jensen

On October 6, 2021, the Iowa Court of Appeals affirmed an order from the district court, dividing a 50-acre parcel between two brothers pursuant to a partition in kind action. Robert Tolle sought a partition in kind of the parcel he owned as a tenant in common with his brother, Rickey. Instead of adopting either brothers’ division proposals, the district court accepted the appointed referee’s plan. The Court of Appeals affirmed, holding that the district court did not err when considering “what would be most equitable and practicable.”


Rickey and Robert each paid $20,000 to purchase a 50-acre tract of land from their father’s estate. They owned the land as tenants in common. A creek runs from the center of the property in the north to the southwest corner. This creek frequently flooded, limiting the use of the land as pasture for cattle and horses, as well as recreational activities like hunting. A significant junk pile was located in the southwest corner of the property.

Unable to agree on how to divide the property, Robert filed this lawsuit, requesting a partition in kind. Although the brothers each consented to the partition in kind, they disagreed on how the land should be divided. Robert, primarily concerned about equality, proposed that the land be divided into two equally sized parcels running north and south. This plan would require Robert to cross the creek to access the southern portion of his land. Rickey, concerned about an identifiable boundary line, proposed that the land be divided along the creek. Because this would result in unequally sized parcels, he proposed that the brother with the larger parcel would pay $800 per acre for the difference in size.

The brothers agreed to appoint a referee for the partition action. The referee suggested a third plan, proposing that the land be divided into two equally-sized parcels created by drawing a straight-line, north-to-south. Although the western parcel had significantly more land on the other side of the creek, both brothers would be required to cross the creek to access parts of their respective property. Additionally, the referee proposed that each party contribute equally to the estimated $15,000 cost to remove the junk pile since each brother had contributed to its formation. The district court accepted the referee’s proposal, and both brothers appealed.

Partition Plan

On appeal, Rickey argued that because it was impractical for Robert to cross the creek to access part of his property, the district court erred in adopting the referee’s plan. A judge may adopt, modify, or reject a referee’s partition plan. Iowa Code § 651.16(5). The district court considered “what will be most equitable and practical in this case within the parameters of the parties’ agreement.” Here, the referee’s plan addressed both Robert’s concerns about equal parcel size and Rickey’s concerns about identifying the boundary.

Iowa Code § 651.31 lists several factors to determine whether the court must order a partition in-kind or partition by sale. These include “whether division is practicable, whether the resulting division would materially diminish property value, evidence of duration of ownership, sentimental attachments, use by owners, and contribution to taxes and other expenses associated with use of the land.” The Court of Appeals, noting that these factors do not dictate how to choose competing partition-in-kind plans, found that to the extent they are applicable, they too supported the referee’s plan. For example, the division would still allow for the land to be used for pasture and hunting, it would not diminish the land’s value, and both brothers had a sentimental attachment to the land.


Robert also appealed, claiming that the district court erred in ordering Rickey to pay an “owelty” for half the cost of the junk pile removal only after Robert removed it. Owelty is a payment of money to equalize the value of property received in a partition in kind action. Iowa Code § 651.1(6). To calculate the equalization payment, the district court used the cost to remove the junk pile, instead of the diminished value of the property. While this does not strictly satisfy the definition of owelty, the court nevertheless determined that the district court correctly divided the cost. Both brothers had contributed to the pile and it was reasonable to wait until after Robert removed the pile for Rickey to pay. Otherwise Robert could collect the payment and then decide to not remove the pile.

Attorney Fees & Costs

Lastly, the court considered whether the district court erred in refusing to award attorney fees to Robert. Robert argued that chapter 651 only allows for one losing contestant and that he was not that losing contestant. In a partition action, attorney fees are awarded to the plaintiff, unless he is the “losing contestant.” Iowa Code § 651.23. Similarly, costs of a partition action are also assessed against the losing contestant.

The court rejected this argument, finding that unless specifically provided, “the singular includes the plural, and the plural includes the singular.” Iowa Code § 4.1(17). The statute here does not suggest there can only be one losing contestant. In this case, neither Robert nor Rickey were the prevailing party because the court accepted the referee’s proposal. As such, they were both losing contestants. The district court did not err in dividing fees and costs between them.