Partition in Kind Prevails: Montana Supreme Court Reaffirms Authority to Modify Referees’ Plans and Impose Reciprocal Easements under the UPHPA

Introduction

In Barce v. Filler (Supreme Court of Montana, Oct. 7, 2025), the Court affirmed a district court’s decision to partition heirs property on Flathead Lake in kind, modifying a court-appointed referees’ recommendation by adopting an alternative configuration that preserved equal acreage and lake frontage and imposed reciprocal easements for shoreline, well, and septic use. Although issued as a memorandum opinion (noncitable and nonprecedential under the Court’s Internal Operating Rules), the case provides clear, practical validation of district courts’ equitable flexibility under Montana’s Uniform Partition of Heirs Property Act (UPHPA) and Title 70, Chapter 29, Montana Code Annotated (MCA).

The dispute arose between siblings and tenants in common, George W. Barce (Appellant) and Judi C. Filler (Appellee), who inherited a 1.29-acre parcel with approximately 50 feet of Flathead Lake frontage. After years of cooperative use—a shared well, septic, shore, and dock—relations deteriorated over access, parking, and proposed agreements. Barce sued under the UPHPA seeking partition in kind; later, he pivoted to request a partition by sale. The district court ultimately ordered partition in kind, with modifications favoring an access corridor location proposed in an “Alternative Partition” developed by one of the referees. The Montana Supreme Court affirmed.

Summary of the Opinion

The Montana Supreme Court affirmed the district court’s order modifying referees’ recommendations and adopting an alternative in-kind partition of the property. The Court held:

• Montana law prefers partition in kind unless it would cause “great prejudice to the cotenants as a group” (§ 70-29-412(1), MCA), and district courts may confirm, modify, or set aside referees’ reports (§ 70-29-212(1), MCA).
• Reciprocal easements to effectuate a fair partition are permissible and consistent with Montana precedent (Kellogg; Hughes; LeFeber).
• Barce’s due process claim failed because he had notice of and a full opportunity to litigate the Alternative Partition, and he did not request a continuance.
• His constitutional “takings” theory was inapposite to a court-ordered partition between cotenants, and in any event, was not preserved in the district court; no basis existed for plain error review.
• Substantial evidence supported the district court’s findings regarding practicability, value, and fairness, and the findings were not clearly erroneous.

The Court emphasized that the case presents no constitutional issues or questions of first impression and does not establish new precedent, thus warranting a memorandum disposition.

Case Background and Procedural History

• 2003: Siblings inherit the lakefront parcel as tenants in common. The parcel includes 1.29 acres with ~50 feet of frontage. It is the family’s last remaining Flathead Lake property.
• 2013: With Filler’s permission, Barce builds a residence on the northwest corner and installs an oversized well, drain field, and septic anticipating shared use. The parties share costs and use of shore improvements.
• 2021: Relations deteriorate. Barce sues under the UPHPA seeking partition in kind.
• July 2022: Three agreed referees are appointed under §§ 70-29-202, -211, and -405, MCA.
• October 2022: Referees recommend a partition in kind: equal acreage; equal split of lake shore; reciprocal shoreline easements; a 12-foot corridor from Barce’s residence to the shore.
• December 2022: Referee Marc Carstens drafts an Alternative Partition (still equal acreage and frontage, with reciprocal shore easements) relocating the access corridor to the eastern boundary. The other referees disfavor it due to possible Hydeaway Road congestion and future parking disputes.
• January 2023: Barce objects to in-kind partition and for the first time requests appraisal and a partition by sale under the UPHPA.
• September–December 2023: Appraisal is ordered and completed at $1.6 million; the district court offers Filler the UPHPA buyout option (§ 70-29-411, MCA). Filler declines.
• October 2024: Evidentiary hearing. Witnesses include referees and experts on access, feasibility, and valuation. Conflicting testimony on road costs ($133,150 vs. $30,000/$15,000) and valuation methodology.
• December 2024: The district court confirms partition in kind but modifies the plan to adopt the Alternative Partition.
• Appeal: Barce asserts unconstitutional taking, due process violations, lack of substantial evidence, and clear-error in findings. The Supreme Court affirms.

Analysis

Precedents and Authorities Cited

• Statutory framework:
  • § 70-29-212(1), MCA: Court may confirm, modify, or set aside referees’ reports.
  • § 70-29-412(1), MCA: Preference for partition in kind unless it causes great prejudice to the cotenants as a group.
  • § 70-29-413(1), MCA: Non-exclusive factors for assessing “great prejudice” (including practicability, aggregate value, lawful use/harm, contributions, improvements).
  • §§ 70-29-402, -410(4), -411, MCA: UPHPA procedures including appraisal and buyout option before sale.
• Standards of review and appellate principles:
  • Troglia v. Bartoletti: Findings reviewed for clear error; substantial evidence standard.
  • Flood v. Kalinyaprak: Conclusions of law reviewed for correctness.
  • In re Estate of Boland: Due process review is plenary.
  • Issue preservation/waiver: Issues not raised below are generally waived; plain error is sparingly applied.
• Partition and equitable tools:
  • Kellogg v. Dearborn Info. Servs., LLC: Trial courts may impose equitable servitudes (including easements) as “owelty” to effectuate a fair partition.
  • Hughes v. Hughes: Upholds imposition of a water easement as part of a partition; recognizes broad equitable powers.
  • LeFeber v. Johnson: Upholds equitable adjustments to preserve fairness in partition; reinforces substantial-evidence deference.
• Due process and takings:
  • Britton v. Brown: Due process requires notice and an opportunity to be heard appropriate to the nature of the case.
  • Knight v. City of Billings; Knight v. City of Missoula: Municipal “takings” restrictions are distinguishable from equitable servitudes in a judicial partition between private cotenants; the constitutional concerns in those Knight cases do not apply here.

Legal Reasoning

The Court’s reasoning tracks the UPHPA’s core architecture and Montana’s equitable partition jurisprudence:

1. Preference for partition in kind. The UPHPA directs courts to partition in kind unless doing so would cause “great prejudice to the cotenants as a group” (§ 70-29-412(1), MCA). The district court found practicable division and no great prejudice, supported by evidence that:
   • Equal acreage (.616 acres each) and equal lake frontage were preserved.
   • Reciprocal easements would protect both parties’ shoreline use and continued joint reliance on the well and septic.
   • The access corridor’s relocation (east boundary) made road construction shorter and more feasible.
   • The aggregate value of the two parcels would likely equal or exceed the undivided whole (consistent with referees’ testimony), undermining a showing of “great prejudice.”
2. Authority to modify referees’ plans. Section 70-29-212(1), MCA expressly empowers courts to “confirm, change, modify, or set aside” referees’ reports. Exercising this authority, the district court adopted Referee Carstens’s Alternative Partition to address access concerns while preserving the essential equality and functionality of the division. The Supreme Court approved that exercise of discretion.
3. Reciprocal easements as equitable tools. Relying on Kellogg and Hughes, the Court reaffirmed that trial courts may impose easements as equitable servitudes—sometimes described as “owelty”—to ensure a fair and workable partition. In the heirs-property context, reciprocal shoreline, well, and septic easements are particularly apt to avoid unnecessary prejudice and to preserve lawful uses.
4. Due process satisfied. Barce argued that adopting the Alternative Partition without additional notice violated his rights. The Court rejected this, noting that:
   • He received the Alternative Partition in 2022, referenced it in filings, and knew it was an exhibit for the hearing.
   • He examined witnesses on it at the evidentiary hearing and did not seek a continuance.
   • Thus, he had both notice and an opportunity to be heard, satisfying due process.
5. Takings claim and waiver/plain error. The Court explained that municipal takings precedents (the Knight cases) address police-power restrictions by government entities and do not translate to equitable servitudes imposed in a judicial partition between private cotenants pursuant to statutory authority. In any event, Barce did not preserve the constitutional claim in the district court, and the Court found no basis to apply plain error review because the use of reciprocal easements is well settled and presents no manifest injustice.
6. Substantial evidence and absence of clear error. The Court deferred to the district court’s weighing of expert evidence on road feasibility and costs (contrasting estimates of $133,150 vs. $30,000 and $15,000), historic shared uses, and indicia that aggregate value would not be materially diminished by partition. Those findings supported the statutory factors under § 70-29-413(1), MCA, including practicability, value, lawful use and harm, and improvements and contributions.

Impact and Practical Significance

Formal precedential impact is limited: this is a memorandum opinion that cannot be cited and does not establish new precedent. Even so, the decision usefully reinforces several practical points for Montana partition practice—especially in heirs property cases:

• Partition in kind remains the default. Parties seeking a partition by sale carry a meaningful burden to demonstrate “great prejudice,” often requiring credible, property-specific evidence that the aggregate value of the divided parcels would be materially less than the whole, or that in-kind division is impracticable.
• Reciprocal easements are expected tools. Montana trial courts have broad equitable authority to impose easements for access, utilities, and shared amenities to ensure functional and fair divisions; courts are not constrained by a rigid notion of exclusive possession.
• Referees’ recommendations are not binding. Courts may confirm, modify, or set aside referees’ plans; a thoughtfully developed alternative—if fair and practicable—can be adopted even when not preferred by a majority of referees.
• UPHPA buyout steps matter. The appraisal and buyout procedural stages must occur before a court orders sale; if a buyout is declined, courts still must assess the statutory preference for in-kind partition.
• Preserve constitutional claims and ask for time if needed. Due process challenges falter when the record shows notice, an opportunity to be heard, and no request for a continuance. Unpreserved constitutional theories are generally waived, and plain error review is rare.
• Evidence wins partition disputes. Practitioners should marshal:
  • Dual-parcel appraisals to compare aggregate post-partition value with whole-property value.
  • Engineering/feasibility assessments and cost estimates for access solutions.
  • Evidence of historic use, sentimental/ancestral value, and improvements—especially relevant in heirs-property contexts.

Complex Concepts Simplified

• Tenants in common: Co-owners each hold an undivided fractional interest in the whole property. Neither has the right to exclude the other from the commonly owned property absent agreement or court order.
• Partition in kind vs. partition by sale:
  • Partition in kind physically divides the property into separate parcels allotted to each co-owner.
  • Partition by sale sells the entire property and divides the proceeds. Under the UPHPA, sale is disfavored unless in-kind division would cause “great prejudice.”
• UPHPA (Montana): A statute governing partition of “heirs property,” emphasizing fairness, family ties, appraisal-based procedures, buyout opportunities, and a strong preference for partition in kind.
• Referees in partition: Neutral real-estate professionals appointed to inspect the property, take input, and recommend a fair plan for division; their report can be confirmed, modified, or set aside by the court.
• Reciprocal easements: Mutually granted rights allowing both parcels to use certain features (e.g., shared shoreline, well, and septic), ensuring function and fairness after division.
• Owelty: Equitable adjustments—monetary or non-monetary (like easements)—used to achieve fairness when physically dividing property.
• “Great prejudice” (UPHPA): A statutory threshold to overcome the default of partition in kind, typically involving proof that division is impracticable or would materially diminish aggregate value or lawful use.
• Standards of review:
  • Substantial evidence/clear error: Appellate courts defer to trial courts on factual findings if supported by credible evidence; they overturn only when left with a firm conviction of mistake.
  • Plenary (de novo) review: Applied to questions of law like due process.
• Waiver and plain error:
  • Waiver: Arguments not raised in the trial court are generally forfeited on appeal.
  • Plain error: A narrow doctrine allowing review of unpreserved issues only to prevent a manifest miscarriage of justice or to protect the integrity of the judicial process.

Conclusion

Although nonprecedential, Barce v. Filler underscores the practical mechanics and equitable flexibility of Montana’s UPHPA-guided partition process. The Supreme Court affirmed a district court’s authority to modify referees’ recommendations, adopt an alternative plan that preserved equal lake frontage and acreage, and impose reciprocal easements to ensure the continued functionality and fairness of both parcels. The Court also reinforced key procedural principles: due process requires notice and an opportunity to be heard—which occurred here—and unpreserved constitutional claims are generally waived, with plain error reserved for exceptional cases.

The central takeaway is straightforward: in Montana heirs-property cases, partition in kind remains the default. To displace it with a sale, litigants must produce strong, property-specific evidence of “great prejudice.” Courts retain robust equitable power to use easements and other adjustments to make in-kind division fair and practicable. Practitioners should accordingly build records focused on valuation comparisons, access feasibility, and the historic and ongoing uses that often define heirs property.