Property I, Pages 369–372

Schmidt v. Wittinger

Supreme Court of North Dakota, 2004


Defendant and his brothers inherited undivided equal interests in harm. They leased it to plaintiff Schmidt. Schmidt and defendant's brothers sued him for a partition sale of the property. His brothers also sued for compensatory damages, asserting that he did not pay his pro rate share of property expenses and taxes and did not sign documents to receive federal funds for not growing on the land. Defendant filed a counterclaim for damages to compensate him for loss of "value, rental payments, government payments, CRP payments and market value."

Procedural History:

At the bench trial, defendant did not appear. Trial court then ordered a partition sale of the property, with the funds to be equally divided among the cotenants; awarded plaintiffs $2,821.87 and $2,244.50 in compensatory damages; and dismissed defendant's counterclaim.


  • Should the property have been partitioned in kind or sold at a partition sale?

  • Is a joint tenant liable for not helping to apply to receive federal funds the land entitles the tenants to?

Defendant's Argument:

Trial court erred in ordering a partition sale instead of a partition in kind.


  • There is a presumption that partition in kind should be made unless great prejudice is shown.

  • A joint tenant is liable only for his share of expenses.


  • If the land was partitioned in kind, fences would have to be rebuilt, parts of the land would not have road access or a water supply, defendant would not cooperate in the partition effort, it would reduce the overall value and usefulness of the land due to being smaller and less efficient to farm, the house would not be partitionable, and the profit for the brothers in the sales would be reduced. Such a partition would result in great prejudice.

  • A federal program such as CRP can be declined. Defendant has no duty partake. That is not an expense the brothers would have to share.


  • The partition sale was proper.

  • A joint tenant is not liable for not partaking in a voluntary federal program.


Partition affirmed. Compensatory damages reversed.