                                   T o 83-218
                                    J.
                IN THE SUPREPIE COURT OF THE STATE OF MONTANA
                                       1983



VIOLA      LAWRENCE,
           Plaintiff and Respondent,


SHARON LEE DONOVAN and VICTORIA
RAE ROSBARSi<Y,
           Defendants and Appellants.




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis & Clark,
                The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD:

        For Appellants:
                Carl A. Hatch; Small, Hatch, Doubek       &   Pyfer,
                Helena, Montana

        For Respondent :
                Galt   &   Swanberg, Helena, Montana




                                   Submitted on Briefs:       September 15, 1983
                                                ~ecided: December 8, 1983




                                                   -
                                  Clerk
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


      Sharon Lee Donovan and Victoria Rae Rosbarsky appeal
from a decree of the District Court of the First Judicial
District, Lewis and Clark County, confirming the partition of
certain properties located near Hauser Lake.                           Sharon Lee
Eonovan and Victoria Rae Rosbarsky also appeal from an order
of the District Court denying their motion to amend the
findings of        fact and conclusions of law entered by                       the
District Court as to the partition.               We affirm the actions of
the District Court.
      Sharon Lee Donovan, Victoria Rae Rosbarsky and Cleber
Amundson     are    the    children      of    Viola    Lawrence       and    Harry
Amundson.      Harry Amundson purchased the property which is
sought to be partitioned in 1933.                   Sometime thereafter he
married     Viola    Lawrence      and     during      the    course    of    their
marriage it was decided that Harry and Viola would hold the
property as tenants in common, with each receiving a one-half
interest in the property.            Harry Amundson died in April 1972,
and   approximately one year             later, Viola married             Mallory
Lawrence.     Viola and Mallory Lawrence moved into the house
that had been built on the property soon after their marriage
and were living there at the time of the partition.
      According to the terms of Harry Amundson's will, Viola
was to receive a life estate in Harry's one-half interest in
the   property      with     the   remainder      interest to go             to his
children.          Shortly    after      the    close    of    probate,       Viola
initiated a partition action seeking d.ivision of her one-half
interest     in    the    property    as      tenant    in common       from the
one-half interest that had belonged to Harry as tenant in
common and was now subject to the terms of Harry's will.           The
partition was contested and it was eventually decided in
Lawrence v. Donovan (Mont. 1980), 619 P.2d 1183, 37 St.Rep.
1756, that Viola Lawrence had the right to a partition of the
property as a tenant in common and the holder of a life
estate in the property.      Viola Lawrence then moved for an
order directing partition of the property and the appointment
of a referee to make recommendations to the court concerning
partition.
     The District Court appointed a referee who partitioned
the land     into two parcels of approximately equal value,
disregarding the value of any improvements upon the land.           Of
the two parcels, the referee recommended that Viola Lawrence
receive Site No. 1, the parcel containing the house and other
improvements.
     The    appellants objected to      the referee's       report on
various grounds and filed their objections with the District
Court.     The court considered the appellant's objections, but
finding    them   unpersuasive,    issued   findings   of   fact   and
conclusions of law affirming the referee's report and denying
the appellant ' s objections   .    The appel-1-ants then filed a
motion to amend the court's findirgs of fact and conclusions
of law.     The District Court denied the motion and entered a
decree confirming partition.
     The following issues are raised on appeal:
     1.     Whether the District Court erred in awarding Viola
Lawrence that portion of the property containing all of the
improvements.
     2.     Whether the District Court erred in adopting the
referee's valuation of the lands bordering the lakeshore.
        3.    Whether the District Court erred by             failing to
consider any mineral potential of the property.
        4.    Whether the District Court's description of the
tracts comprising Site No. 1 and Site No. 2 are in. error.
        5.    Whether the District Court erred in assessing 50
percent of the surveyor fees, referee fees, and other costs
of partition to the defendants as holders of the remainder
interest.
ALLOTMENT OF THE PROPERTY CONTAINING ALL IMPROVEMENTS
     The appellants contend that when the referee attempted
to divide the land without considering the value of the
improvements upon them, he committed an error in equity.
They further contend that the District Court compounded that
error    by   following      the    referee's    recommendation without
recognizing      in   some    way     that   the   children   should   be
compensated for their remainder interest in the improvements
which were present upon             the   land   at the time of Harry
Amundson's death.
     Section 70-29-207, MCA, sets forth the manner in which
the referee should allot shares when partitioning land as
fol.lows:
    "70-29-207.      Allotment   of  shares    of  land
    --improvements. I    nc z e s the c o u z shall
    direct the referees, in making partition of land,
    to allot the share of each of the parties owning an
    interest in the whole or in any part of the
    premises sought to be partitioned and to locate the
    share of each cotenant so as to embrace a.s far as
    practicable the improvements made by such cotenant
    upon   the property, and      the value of      the
    improvements made by the tenants in common must be
    excluded from the valuation in making allotments,
    and the land must be valued without regard to such
    improvements, in case the same can be done without
    material injury to the rights and interests of the
    other tenants in common owning such land."
    From this, it is apparent that the referee properly
excluded the improvements in appraising the property, and
that he properly included the improvements in allocating the
two parcels between the parties.      Although the appellants may
have a remainder interest in the improvements that were in
existence on the property at the time of Harry Amundson's
death, the terms of the statute direct the referee to locate
each cotenant's      share so as to embra-ce the improvements
attributable to that cotenant only "as far as practicable."
Because the improvements made by Viola Lawrence were placed
near the house and Viola and her husband were living in the
house, i-t was practicable to allot Site No.              1 to Viola
Lawrence rather than to the children.
THE VALUE OF THE PROPERTY BORDERING THE LAKESHORE
      The a.ppe1lants contend that the referee undervalued a
certain     piece   of   lakeshore   property   awarded    to   Viola
Lawrence.      The referee placed a value of approximately $7,500
on the 4 . 2   acre tract in question.    However, the appellants
contend that because they have received an offer of $24,500
for the tract if title can be conveyed fee simple, the
valuation of the referee is obviously in error.
      The rule laid down by this Court in In re Moran's Estate
(1954), 128 Mont. 1-89, 195, 273 P.2d 671, has bearing on this


      "It is a well settl-ed rule that where a partition
      has been made by       commissioners, the court
      interferes with their action with reluctance. It
      is only where a. clear mistake has been made that
      their proceedings will be interfered with. Cooper
      v. Long, 115 Okl. 286, 244 Pac. 167, 46 A. L. R.
      343.
      "Ordinarily where the commissioners have arrived at
      a value and there is a showing that other persons
      think the property is of a higher value, the
      presumption is that the commissioners have acted
      fairly and honestly and the presumption must obtain
      unless overthrown by a clear preponderance of the
      evidence. See Aldrich v. Aldrich, 75 S. C. 369, 55
      S. E. 887, 117 Am. St. Rep. 909."
     Here,    as     in   Moran,    the   appellants    must    present
sufficient evidence to overcome the presumption that the
value of the property was arrived at fairly and honestly.
The $24,500 offer presented by the appellants was dependent
on the transfer of a fee simpl-e title.            However, no present
fee simple title could be transferred by reason of Viola
Lawrence's   life estate in the property.              Therefore, the
presumption has not been overcome and the value of the
property arrived at by the referee will be presumed to be the
correct valuation of the property.
CONSIDEaATION OF MINERAL POTENTIAL
     The appellants contend that the referee should have
considered the mineral potential of the property because of
the proximity of the sapphire mine located on the Wesley
Castle property to the southeast boundary of Site No. 1.
                                                       .
     However the District Court, after considering all of the
evidence,    found    "that   the   evidence   introduced      fails   to
establish that there are valuable mineral deposits which
should receive consideration in the partition of the subject
property."    We have reviewed the record and are in agreement
with the District Court.           The mere assertion of a mineral
potential, without more, cannot render the finding of the
District Court clearly erroneous.
THE DISTRICT COURT'S DESCRIPTION OF THE PARTITIONED LAND
     Both parties agree that there are discrepancies between
the amount of acreage partitioned by the referee in his
report and the amount of acreage awarded by the District
Court in its decree confirming partition.
     The referee in his report lists the total amount of
acreage to be partitioned as 216.6          acres.     Of this, 122.5
acres were placed         in Site No.     1 with    a total value of
$1-27,420,and the remaining 94.10 acres were placed into Site
No. 2 with a total value of $127,690.          When the total number
of acres awarded by the District Court is calculated the
result is that 156.4 acres are contained in Site No. 1 and
                                                      .
97.15    acres   are   contained    in   Site No.    2.         This    is a
difference from the referee's totals of 34 acres and 3.05
acres, respectively.       There must he a remand for correction
of the land descriptions.
THE ASSESSMENT OF PARTITION COSTS
     The    appellants    contend    that   all     of    the    costs    of
pa.rtition must be borne by Viola Lawrence because she alone
will benefit from the partition.
        Section 70-29-218 sets forth the manner in which the
costs of partition shall be apportioned among the parties as
follows:
    "70-29-218.    Costs - partition--apportionment
                           of
    among parties--lien      .The costs of partition,
    including reasonable counsel fees, expended by the
               or either of the defendants £0; the
    common benefit, fees of referees, or other
    disbursements must be pa-id by          the parties
    respectively entitled to share in the lands
    divided, in     proportion   to   their    respective
    interests therein, and may be included and
    specified in the judgment.      In that case, they
    shall be a lien on the several shares a.nd the
    judgment may be enforced by execution against such
    shares and against other property held by the
    respective parties.     When, however, litigation
    arises between some of the parties only, the court
    may require the expense of such litj-gation to be
    paid by the parties thereto or any of them." (sic)
        It is difficult to conclude that on117 Viola Lawrence
will be benefited by the partition of the property.                    First,
Site No. 2 is in effect set aside for the appellant's future
use with     the   life   tenant bearing     the burden         of making
necessary repairs and paying taxes upon the land until the
life estate is terminated.         Section 70-16-103, MCA.         Second,
future    arguments    over which    portion   of    the property         is
subject to the remainder interest are eliminated and if Viola.
Lawrence's fee interest should be             sold or mortgaged      the
boundaries of the property will be cl.early established.            From
this, it is clear that Viola Lawrence will not be the only
beneficiary of the partition.         The District Court followed
the statute in apportioning the costs of partition.
     Therefore,     the   District    Court    is   affirmed   in    all
respects except for the description of the parcels, and the
cause is remanded solely for the purpose of correcting the
descriptions of the lands consti.tuting Site No. 1 and Site
No. 2.
                                 \.
                                 -

                                                    Justice


We Concur:


                          ..
    Chief Justice




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         Justices
