Chaney v. Upchurch

The trial court properly ruled that agriculturally-zoned land should be equitably partitioned after finding that it would be impossible to divide the property by metes and bounds in a manner which would enable each cotenant to comply with the zoning requirements.

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This is an appeal from a judgment ordering the equitable partition of a 101.7 acre tract of land in Harris County, Georgia. The property has passed through inheritance, intestacy, and acquisition to Arnelia Chaney and other individual members of the Chaney family, appellants herein. In December 2000, approximately 20 members of the Chaney family owned individual undivided interests in the property as tenants in common. At about that time, appellee Harold Upchurch began buying interests from various Chaney family members. As of July 2003, approximately 14 members of the Chaney family still owned interests in the property, ranging from 15 percent to .15 percent;1 and Upchurch had acquired 43 percent of the property as a tenant in common with them. The remaining Chaney family members refused to sell any more of their interests in the land. Upchurch filed a complaint for partition in equity pursuant to OCGA § 44-6-140 et seq., seeking a public sale and division of the proceeds in proportion to the respective interests of the parties. The Chaneys counterclaimed for statutory partition, seeking to have the property divided by metes and bounds under the provisions of OCGA § 44-6-160 et seq.

A survey of the property was prepared. The surveyor testified at an evidentiary hearing that the property is zoned agricultural; the Harris County zoning ordinance requires that subdivisions in this zone contain lots at least five acres in size with a minimum of 50feet of frontage on a public road; that a portion of the property is accessed by an unpaved road which does not qualify as a county road the survey established that only approximately 450 feet fronts on a public road; and approximately 25 acres is included in a 100-year flood zone. The surveyor concluded that a plat dividing the property by metes and bounds in accordance with the percentages of ownership would not be approved by the county because it would result in substandard lots and inadequate road frontage. The Chaneys voiced no objection and offered no expert evidence to counter this testimony.

Chaney v. Upchurch

The trial court properly ruled that agriculturally-zoned land should be equitably partitioned after finding that it would be impossible to divide the property by metes and bounds in a manner which would enable each cotenant to comply with the zoning requirements.

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