Withee v. Garnett
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 30
Docket:	Som-96-726
Submitted
 on Briefs:	November 24, 1997
Decided:	February 12, 1998	

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
		SAUFLEY, JJ.

TERRANCE WITHEE, et al.

v.

CLARENCE GARNETT, et al.

DANA, J.

	[¶1]  Clarence Garnett appeals from the judgment of the Superior
Court (Somerset County, Alexander, J.) ordering the sale of property held as
tenant in common.  Garnett contends that the court should have ordered a
physical partition instead.  We affirm the judgment.
	[¶2]  Terrance and Christine Withee brought this action for equitable
partition against various heirs of Dorothy and William Garnett.  The Withees
owned a 13/15 interest in the subject property pursuant to a deed from
William Garnett's second wife.  A number of Garnett family members shared
in the remaining proportion of the property as heirs of Dorothy and William,
and were named as defendants in this action.  Each of the family members
subsequently conveyed their interest to Clarence Garnett.{1}  The Withees
asked the court to order a sale of the property, which measures between
two and two and one-half acres, with the proceeds to be divided
proportionally among the parties.  Clarence Garnett, who held a 19/150
interest in the property, objected to the sale of the property and asked the
court to order a physical partition because he wished to keep a section of
the lot in the Garnett family, even though he recognized that his portion of
the lot would not meet the minimum lot size requirements of the Town of
Detroit.  The matter was submitted to the court on a stipulation together
with written arguments of the parties.  The court refused to "act to create a
nonconforming lot, violative of local subdivision rules," and ordered the sale
of the property.
	[¶3]  Garnett contends that the court should have ordered a physical
partition of the land because he is willing to accept a lot with which he can
do nothing and a physical partition of the land would leave the Withees with
a fully conforming lot.
	[¶4]  The trial court's equity power is broad and flexible, and is
reviewed on appeal for an abuse of discretion.  See Littlefield v. Adler, 676
A.2d 940, 942 (Me. 1996).  "The equity court will order sale and division of
the proceeds where physical division is impractical or would materially
injure the rights of the parties."  Libby v. Lorrain, 430 A.2d 37, 39 (Me.
1981).  Equitable partition actions necessarily require a trial court to weigh
the competing interests of common landowners.  The court's decision to
order a sale of the property over Garnett's objection clearly was within its
discretion where, as here, a division of the property would result in the
creation of an essentially worthless parcel approximately one-quarter the
size of the town's one acre minimum lot size requirement.
	The entry is:
					Judgment affirmed.
Attorney for plaintiffs:

Michael A. Weirs, Esq.
P O Box 395
Hartland, ME 04943-0395

Attorney for defendant:

Schuyler G. Steele, Esq.
P O Drawer F
Newport, ME 04953