Kaberna v. Brown, 864 N.W.2d 497

Frank E. and Josephine Kaberna created two trusts that, when distributed in 2012, resulted in four cotenants (the four children and their spouses) each owning an undivided one‑fourth interest in 533 acres including a Homestead with residence and livestock facilities.
Karen and David Brown lived adjacent to the Homestead, operated a portion of the livestock business there under leases, and made about $41,072 in improvements to Homestead facilities while Karen leased portions of the property.
Cotenant Frank lived in the Homestead residence for over 20 years; other family members lived elsewhere. Relations among the siblings were antagonistic, and the parties agreed any partition should minimize contact between Frank and Karen.
Plaintiffs (Frank, Jean and Bob Rademacher, and Don’s estate/trust) sought partition. Appraisers produced a Maas Plan (initial partition) and the Browns produced an alternative Hubner Plan; Plaintiffs later submitted a Modified Maas Plan giving Frank a 6‑acre site plus 18 adjacent acres and giving Karen most of the Homestead improvements.
The circuit court adopted the Modified Maas Plan, declined to award the Browns compensation for improvements, and denied the Browns’ request for a forced sale; Browns appealed arguing (1) the court erred in adopting the Modified Maas Plan and (2) admitting the Modified Maas Plan violated the pretrial order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether adoption of the Modified Maas Plan was an abuse of discretion	Modified Maas is fair, minimizes contact between cotenants, and protects Frank’s long‑time residence	Plan prejudices Browns by depriving them of improvements and forcing relocation of their livestock operation	Court did not abuse discretion: partition in kind favored, improvements were outdated, Browns showed no great prejudice or unrebutted evidence of severe harm
Whether admitting Modified Maas Plan violated the pretrial order and prejudiced Browns	Plaintiffs used the Modified plan demonstratively in response to Browns’ late proposals; court allowed it for analysis	Browns objected that exhibit was untimely under pretrial exchange	No reversible error: exhibit was demonstrative, related facts about improvements were already in evidence, Browns not prejudiced

Englehart v. Larson, 566 N.W.2d 152 (S.D. 1997) (partition is equitable proceeding allowing court to adjust equities)
Eli v. Eli, 557 N.W.2d 405 (S.D. 1997) (equitable actions reviewed for abuse of discretion)
Gartner v. Temple, 855 N.W.2d 846 (S.D. 2014) (proponent of forced sale bears burden to prove great prejudice)
Iverson v. Iverson, 213 N.W.2d 708 (S.D. 1973) (court has discretion to deny recovery for improvements in partition action)
Commercial Trust & Savings Bank v. Christensen, 535 N.W.2d 853 (S.D. 1995) (lessee not entitled to compensation for nonremovable leasehold improvements absent agreement)