dissent">ELLETT, Chief Justice:

(dissenting).

This is an appeal by Chournos from an order of partition of 5,238 acres of dry, desert, mountainous land which is owned in joint tenancy by the parties to this lawsuit. Each party owns other land in the same area. The Arthurs lease their land to a tenant who runs cattle and sheep upon it. Chournos has a large sheep operation and utilizes the jointly-owned land along with his own in that business.

The parties could not agree on the use of the jointly-owned land and Arthur began this suit for partition. The parties each appointed a referee to advise the court on the method of the partition and the share to be allotted to each. The court may affirm, change, modify, or set aside the report of the referees; and if necessary, appoint new referees.1

In this case the two referees could not agree so the court appointed a third referee and they filed two reports with the court: a majority report and a minority report. The court accepted the majority report and Chournos appeals asking this Court to order a sale of the jointly-held property or to remand for a new trial.

Our statute2 provides for a sale and distribution of the funds in cases where great prejudice to the owners would result from partition.

*726Two of the referees testified in court. The third could not attend because he had suffered a heart attack. The testimony of the two who did attend court was of interest. The referee appointed by respondent testified as follows:

Trying to be fair in dividing this as close to fifty-fifty as we could with all of the factors involved. We couldn’t solve it all because of the lay of the land. There’s no way that those lands colored in green [jointly held] can be divided to solve all of the problems of all the parties. But it certainly sets a base from which further negotiations could be made. [Emphasis added.]

* * * * * *

Q. Now I’ll ask you if this division as proposed here would open the way further exchanges and assist in those exchanges in the future.

A. I would certainly think so. Reasonable neighbors should be able to negotiate after each knows exactly what the other — what he and the other party owns.

The referee appointed by the court said:

As I mentioned, since we had recognized that there could be considerable detrimental impacts, and since we were not in a position as a committee to determine the severity of these impacts, we had intended to let the plaintiff and the defendant make that judgment themselves. We were aware at the time we wrote this document [the report to the court] that it was not within our charge to make the decision as to whether or not the land could be divided. We have done the best we could as far as attempting to make a division that is equitable, but we had hoped and our intent was with this paragraph to provided the opportunity for the plaintiff and the defendant to make the judgment as to whether or not the severity of the division was such that they could not accept our division.

Q. Did you consider or determine then that the possibility existed there that detrimental effect, substantial detriment, would result or could result from the partition?

A. We did think it was possible. We did think it might be possible, and as I mentioned we did not think we were in a position to make that judgment as to severity to either party.

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Q. Did you insert the rest of the paragraph — I assume you did?

A. Yes, sir, we did.

Q. And for what reason?

A. This was, as I tried to say before, to provide the opportunity for the two principals in the case to make their own judgment as to whether or not our purposed division was fair and equitable to each of them.

Q. And if they made a determination that it was not fair, what was your intention from your report?

A. Our intent, as stated in the report, if such a determination was made by the principals or either of the two principals, then our intent was to simply recommend — we realized we have no authority here, but to simply recommend to the court that the property be sold.

The division of the land was as fair as possible under the circumstances, but the situation was fraught with problems. The referee appointed by the court further testified:

Q. Any other factors that weighed upon you in considering what detrimental impact this partition would have?

A. Well, there was one final one. I do have occasion to work in real estate. There’s a principle in real estate which simply states that usually the value of a grazing tract as a unit is somewhat greater than the value of that same unit divided into portions, which would then have to be grazed individually. This probably was one of the main reasons why we inserted the acceptance clause.

Q. Do I understand you correctly then it was your intent from the language you used in the report you made to leave to the parties a determination as to whether or not the damage to them was substantial?

*727A. Yes, sir, that was our intent, as a recommendation to the court.

A reading of the record shows that the appraisers were cognizant of the prejudice that would result to the owners if a partition was made. Apparently they thought that the parties would begin trading lands with each other if partition was made. Of course, the possibility that great prejudice occasioned by partition could be alleviated through trading by and between the parties is not a concern of either the referees or of the court. The parties were unable to agree on the joint use of their commonly-owned land and they ought not be forced, by economic distress created by partition, to agree where they never did agree before this lawsuit.

The partition as made by the court gave sections of land to the parties which only cornered on each other — like giving Utah and New Mexico to one party and Colorado and Arizona to the other party. No travel could be made from one section to the other without a trespass being made on the land of the other. Besides, there was a serious problem about a right-of-way into some of the assigned tracts.

In the judgment entered by the court, an easement 500 feet wide was given to Chour-nos across some of the land awarded to Arthur, but on the condition that Chournos give Arthur a like right-of-way over other land owned by Chournos.

The court should partition the jointly-owned land, if possible, and not torture the order by attempting to force a grant of a right-of-way over other land owned by a party in order to lessen the obvious great prejudice that otherwise would result from the division.

In equity cases such as this, we have the right to consider the evidence and to make our own findings and decisions when we are convinced that the trial court did not rule properly under the evidence given in the case.3

There are five springs located on the jointly-owned land, and in attempting to give two springs to one party and three to the other, the land was so divided that the partition cannot be sustained. We, therefore, should reverse the judgment as rendered and remand the case to the trial court with directions to order a sale of the property pursuant to law and to divide the funds equally after making allowance for any improvements by either party to which that party would be entitled as contribution from the other in case no sale was made.

Costs should be awarded to appellants.

CROCKETT, J., concurs in the views expressed in the dissenting opinion of EL-LETT, C. J.

. U.C.A., 1953, 78-39-15.

. U.C.A., 1953, 78-39-12.

. In re Demiris, 10 Utah 2d 405, 354 P.2d 97 (1960).

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