Camicia v. Camicia

ADAMS, P. J.—

This action was brought by plaintiffs to secure the partition of certain property owned by plaintiffs and defendants as tenants in common. Trial by jury was waived. Pursuant to stipulation of the parties the trial court made and entered an interlocutory decree which adjudged that the two plaintiffs, husband and wife, were the owners of an undivided one-fourth interest each, in the property in controversy, and that defendant Antone J. Camicia was the owner of an undivided one-half interest therein, and appointed three referees to make partition. Thereafter said referees made their report in which they alleged that they had divided

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the property according to the respective rights of the parties “quality and quantity relatively considered, as nearly as could be without prejudice to the rights and interests of the said parties, into two equal parts. ...” Plaintiffs then moved the trial court to modify or set aside the report of the referees, contending that the division was not fair or just. This motion was denied, and a motion made by defendants to confirm the referees’ report was granted. A decree confirming said report, and partitioning the property pursuant to the division made by the referees, followed. Plaintiffs have appealed on the sole ground that the division is not fair and equitable under the undisputed evidence.

The record shows that, in support of their contention that the report of the referees was unfair and inequitable, plaintiff Louis J. Camicia testified that in his opinion defendants had been allotted more than a fair share of the property according to the nature of the land and the values which he put upon it; also that the division made by the referees would necessitate the erection of a fence by plaintiffs in order to separate the lands allotted to them from those allotted to defendants should it become desirable for plaintiffs to use their portion for the pasturage of livestock, and that the erection of such fence along a portion of the division line would be impossible because of the swampy nature of the area it must traverse. Defendants, in support of the report, called the county surveyor who stated that he had made an analysis of the land involved in the action and had assisted the referees in arriving at their conclusions. In support of his motion to confirm, defendant Antone J. Camicia testified as to the quality and value of the various portions of the land, the purport of his testimony being that plaintiffs had received a fair and just division. Counsel for the parties then stipulated that the trial court might call the referees and get their reasons for making the division reported by them; also that the court should view the premises.