Branscomb v. Gillian

7 N.W. 523, 55 Iowa 235

• Court: Supreme Court of Iowa
• Decided: December 14, 1880
• Status: Published

Opinion

Rothrock, J.

i. j?AitTiTi<»r: courUo order sale. I. The court was fully justified in finding from the evidence that the land was so situated with regard to improvements, and other considerations, that a division thereof between the parties would very much diminish the value of each share. But it is claimed -that the evidence shows that a division can be made by which the two parts will be of equal value. This may be correct, and yet the court was warranted in finding that the parts, taken separately, would be of very much less value than the whole tract taken together. Section 3289 of the Code provides that a sale may be ordered if it is apparent “ that the property cannot be equitably divided into the requisite number of shares.” If by a partition the value of all the shares would be much less, by reason of the partition, than the value of the whole tract as an entire farm, a partition would be manifestly inequitable. What is said in Cooper v. Cedar Rapids Water Power Co., 42 Iowa, 398, with, reference to the practicability of a partition, lias no application to a case like this. That was an action to partition a waterpower. Neither party asked nor desired a sale of the property, and a division and partition of the proceeds. The facts in the case were peculiar to that character of property, as will readily be seen.

II. Appellee presents a motion asking that damages be assessed by this court against the defendant because, as is alleged, this appeal was taken for delay. The motion must be overruled. It is only where a judgment or order for the payment of money is appealed from, or where the damages can be accurately known to this court, without an issue and trial, that we are authorized to make such an award. Code, § § 3195, 3196.

Affirmed.