APPEAL from the Circuit Court of Iroquois County; the Hon.
ROBERT J. IMMEL, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendants Adrian R. Johnson and Ruth Irene Johnson appeal from a decree of the Circuit Court of Iroquois County, which ordered a partition in kind of a lot found to be owned jointly by plaintiffs Lawrence W. Ostema and Dorothy Ostema and defendants. The decree also awarded defendants Johnsons owelty in the sum of $2,400 to equalize the value of the physical partition in kind and ordered that plaintiffs' attorneys' fees in the amount of $2,000 be taxed as a cost of the partition proceedings with the cost of such proceedings to be paid one-half by plaintiffs and one-half by defendants.
The action was instituted (in 1972) to compel partition, on behalf of plaintiffs, of a certain lot known as Outlot 19 which is an irregularly shaped parcel of real estate lying between Lot 12 owned by plaintiffs and Lot 14 owned by defendants in Block 9 of Bayles Lake Subdivision in Iroquois County.
Plaintiffs Lawrence W. Ostema and Dorothy Ostema are the owners in possession of Lot 12 by virtue of a contract for sale. Defendants Adrian R. Johnson and Ruth Irene Johnson are the owners of Lot 14. The sole improvement on the Outlot 19, located between Lots 12 and 14, is a two-stall garage. The garage rests primarily on Outlot 19 but a substantial part (approximately 20% of the garage) occupies a portion of Lot 12. At times prior to the start of this action and during the pendency of this proceeding, the use of the garage was shared by the owners of Lot 12 and the owners of Lot 14.
During the period of time following the purchase of Lot 12 and what plaintiffs Ostemas presumed was the north half of Outlot 19, the Ostemas used the entire garage for their purposes. No use was made of the garage by the defendants until the instant action was filed. After the partition suit was filed, the defendants and the Ostemas both used one-half of the garage. The defendants, however, did not use the garage for motor vehicles, but simply for storage in the south half of the garage. Their motor vehicles were apparently kept outside and not in the garage.
Commissioners were appointed in the partition action. The commissioners reported as follows:
"In view of the fact that the sole improvement on the property consists of a garage, which partially rests upon a portion of Lot 12, it would be inadvisable to allow the garage to become the sole property of the owners of Lot 14; because, by doing so, they would acquire property which in part, they had no legal interest in whatsoever.
It is, therefore, the opinion of the commissioners that the garage should finally repose in the legal hands of the owner of Lot 12.
The commissioners further recommend a partition rather than a sale; because, in their opinion, a sale would actually injure both parties. The front yards of both parties would be seriously and adversely altered, and in the opinion of the commissioners, neither litigant could possibly profit therefrom."
The physical partition reported by the commissioners gave the plaintiffs the entire garage with an additional three feet to the south and east of the garage to enable the plaintiffs to maintain the east and south walls of the garage, as shown by a copy of the survey in evidence, which is hereto attached.
Objections were filed to the commissioners' report on the ground that there would be manifest prejudice to the owners of Lot 14, with a loss in value of their property without a one-stall garage, and also recited the difficulty of erecting a garage on the property remaining to the owners of Lot 14. The court at that time entered an order disapproving the report of the commissioners and the court appointed new commissioners who reported to the court that the premises were not susceptible of division without prejudice to the parties in interest and appraised the value of Outlot 19 in the amount of $5,000.
Plaintiffs, however, filed a motion to reconsider, and asked the court to reconsider the court order disapproving the original report of commissioners (and also filed objections to the second commissioners' report). Plaintiffs contended that manifest prejudice would result to plaintiffs because the portion of the garage located on Lot 12 would be a worthless structure without the rest of the garage. The parties also agreed that the trial judge should view the premises, which he did. There was evidence that cost of a new garage to be constructed by the owners of Lot 14 would be approximately $2,500 and that no alternative location was available for a garage on Lot 12. The owners of Lot 14 also stated that no practicable location could be obtained by the owners of Lot 14 for construction of a garage although they admitted that a garage could be built in an area where it would block the view from the owners' living room window.
At the conclusion of the hearing, the trial court sustained the objections to the reports of the second group of commissioners and reconsidered the prior disapproval and discharge of the original commissioners. The court confirmed the first report of commissioners directing that the premises be physically partitioned as previously described. Such division, in addition to providing for the garage as an entity to go with Lot 12, gave 50 square feet more to the owners of Lot 14, the defendants, and provided an additional frontage on the lot of 30 feet for the owners of Lot 14. The trial court also allowed $2,400 to defendants in owelty to equalize the value of property obtained by the owners of Lot 12 under such physical division, with the owners of Lot 12 ordered to pay such sum to defendants. An order was also entered by the trial court allowing attorneys' fees for plaintiffs' attorneys in the sum of $2,000 to be taxed as costs in the partition action.
• 1, 2 In a partition action, the law favors a division of land in kind, rather than a division of proceeds from the sale of the land. A sale under partition is proper only where the division of the premises cannot be made without manifest prejudice to the rights of the interested parties. (Peck v. Peck (1959), 16 Ill.2d 268.) When property is susceptible to partition in kind, but the shares of the partition are not equal, the court may award owelty to equalize the shares taken in the partition. (Cooter v. Dearborn (1886), 115 Ill. 509, 4 N.E. 388; Stegeman v. Smith (4th Dist. 1966), 67 Ill. App.2d 451.) It is apparent, therefore, that what the law favors is an equitable, but not necessarily equal, division of property, with the possible award of owelty to attempt to equalize the interests of the parties. In determining whether division can be made without manifest prejudice to the rights of parties, it is proper to consider the special circumstances which we find in the instant case, that the owners of the undivided interest in Outlot 19 owned the lots adjacent to Outlot 19 on opposite sides ...