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Northwest Realty Co. v. Jacobs, 273 N.W.

2d1 Supreme Court of South Dakota 1978



Chapter 4 Title Non-Possessory Interests
Page 343 Topic Express Easements: Classifications & Manner of Creation
Quick Notes
Ted and Olive Jacobs purchased two lots on either side of a ditch. When the property owners (Ted and Olive Jacobs) filled a portion of the ditch,
a realty company (Northwest Realty) which was a successor to the company which dug the ditch claimed fee title to the ditch and filed an
injunction seeking to have the owners (Ted and Olive Jacobs) remove the fill dirt. A judgment was rendered in favor of the realty company and the
owners sought review. The court determined by examining the original conveyance that only a right of way easement was conveyed and not a
fee title. Therefore, the realty company did not own the fee title to the ditch. The judgment of the trial court was reversed

4-Corners: It writing ambiguous. If Yes, then look at the rules of construction
Rules of Construction
o The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be ascertained by a fair
consideration of the entire instrument and the language therein, without undue emphasis on any particular part or provision of the document.

Words are to be construed
o Words are to be construed in pari material (construed together) and a construction should be adopted which gives effect to all words.
o Each word and provision should be given that significance which is consistent with, and will effectuate the manifest intention of the parties.

Grant Rule
o A grant is to be construed in favor of the grantee.

Fee Simple is presumed
o A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was
intended.

Right of Way
o Where the term "right of way" is used in a deed it usually indicates that ONLY an easement or a right of passage is being conveyed or
reserved.
o In such a case the instrument should be construed as conveying an easement UNLESS the instrument, considered as a whole,
indicates that the parties intended the passage of fee title.

Intention of parties are in doubt
o If, however, construction of the instrument as a whole leaves the intention of the parties in doubt, consideration must be given to the
situation and circumstances of the parties at the time of the execution of the deed in order to determine what was within their
contemplation at that time.

Determining if Deed was conveyed in fee simple or an easement.
1. the amount of consideration;
2. the particularity of the description of the property conveyed;
3. the extent of the limitation upon the use of the property;
4. the type of interest which best serves the manifested purpose of the parties;
5. the peculiarities of wording used in the conveyance document;
6. to whom the property was assessed and who paid the taxes on the property; and
7. how the parties to the conveyance, or the heirs or assigns, have treated the property.

Public Policy
o It is discourage to give in fee simple narrow strips of land, because the parcels are split which bring down the value as a whole.
o (But that does not mean we cannot do it).
Book Name Fundamentals of Modern Property Law: Rabin; Kwall, Kwall. ISBN: 978-1-59941-053-1.

Issue o Whether the Smith-Iowa Ditch deed conveyed a fee title or only a right-of-way easement? Easement.

Procedure
Lower o Judgment in favor of Northwest Realty Co.
Supreme o Reverse

Facts Discussion Key Phrases Rules
Pl Northwest Realty Co.
Df Jacobs

Description
o Northwest Realty Co. (plaintiff) sought an
injunction requiring Ted and Olive Jacobs
(defendants) to remove large amounts of
fill dirt from the property in dispute.
o Defendants counter-claimed seeking a
judgment quieting title to the property in
them and enjoining the plaintiff from
interfering with defendants' use and
enjoyment of the property in question.
Lower Court
o From the judgment in favor of plaintiff,
defendants appeal.
Supreme Court
o We reverse.

Historical
o Iowa Ditch Company began to obtain quit
claim deeds along the course of the
proposed irrigation ditch.
o Various deeds obtained range from
unconditional fee to easements with
reverter to grantor clauses.
o Smith executed and delivered a quitclaim
deed to Iowa Ditch Company.
o A flood, destroyed the head gate of the ditch
and destroyed portions of the ditch itself.
o Iowa Ditch decided to dissolve the
corporation and delivered a quitclaim to the
stockholders who owned adjacent property
to the Ditch.
o Later the land in question (the ditch) was
conveyed the to Pl.
Rule of Construction
o The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be
ascertained by a fair consideration of the entire instrument and the language therein, without undue emphasis
on any particular part or provision of the document.

Words are to be construed
o Words are to be construed in pari material (construed together) and a construction should be adopted which
gives effect to all words.
o Each word and provision should be given that significance which is consistent with, and will effectuate the
manifest intention of the parties.

Grant Rule
o A grant is to be construed in favor of the grantee.

Fee Simple is presumed
o A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant
that a lesser estate was intended.

Right of Way
o Where the term "right of way" is used in a deed it usually indicates that ONLY an easement or a right of
passage is being conveyed or reserved.
o In such a case the instrument should be construed as conveying an easement UNLESS the instrument,
considered as a whole, indicates that the parties intended the passage of fee title.

Intention of parties are in doubt
o If, however, construction of the instrument as a whole leaves the intention of the parties in doubt, consideration
must be given to the situation and circumstances of the parties at the time of the execution of the deed in
order to determine what was within their contemplation at that time.

Determining if Deed was conveyed in fee simple or an easement.
1. the amount of consideration;
2. the particularity of the description of the property conveyed;
3. the extent of the limitation upon the use of the property;
4. the type of interest which best serves the manifested purpose of the parties;
5. the peculiarities of wording used in the conveyance document;
6. to whom the property was assessed and who paid the taxes on the property; and
o The Df - later acquired land acquired land on
both sides of the ditch.
7. how the parties to the conveyance, or the heirs or assigns, have treated the property.

Consideration
o The record shows that Smith had acquired the entirety of Lot 4 consisting of 41 acres for $120 seven months prior
to the grant in question.
o In comparison, it may appear that the consideration given is more than nominal and is evidence of an intent to
grant an estate in fee to Iowa Ditch.

Consideration is inconsistent
o However, the consideration is not inconsistent with a perpetual easement of an irregular irrigation ditch that
divides the property by a meandering trench.

Description is lacking, look more like an easement
o The degree of precision of the description of the strip of land is lacking and is much more indicative of a grant
of easement than a fee.

Could be 40 feet on either side
o The description in the deed indicates that it is not to exceed 40 feet along the course of the survey.
o The line on the survey is not designated as the center line, and, therefore, the actual ditch could be 40 feet on
either side of that line.

Easement not definite
o Easements do not require a definite statement of their width, dimensions, or exact location.

Fee title reasonable certainty
o The conveyance of fee title requires a reasonable certainty of the boundaries.

"its successors and assigns forever."
o No assistance, because it could create either a fee simple title or a perpetual easement.

Factor: Over and Across
The deed recites that Smith did "grant * * * all of his estate, right, title, interest, claim, property and demand,
of, and to * * * a strip of land * * * across lot four * * * to be used as a right of way for an irrigation ditch."
o Court: Although use of the terms "over and across," "across," or "over" when used alone in a deed does not
imply an easement, when used in conjunction with a restriction of the use as a right-of-way, it is
considered to be evidence that an easement was intended.

Factor: Irrigation Restriction
o The deed quite clearly restricts the use to a right-of-way for irrigation purposes.
o In addition, it provides that part of the consideration of the grant is the providing of irrigation water for grantor's
land "as soon as the ditch contains water."
o Court: There seems to be little doubt that the grantor's intention was to restrict the use of the strip of land to
that of an irrigation ditch and irrigation purposes.

Factor: Rights granted best served by an easement or a fee estate
o A perpetual easement would provide Iowa Ditch with all the rights necessary for the construction and repair of an
irrigation ditch.
o The indefiniteness of the location of the strip could allow the corporation to deviate from the course of the original
construction.
Court:
o The latitude of an easement would appear to suit the requirements of Iowa Ditch more than the original
construction area, which title would be restricted to if a fee simple were intended.
o The indefinite but restricted width and meandering length of the grant suggests that any use other than that
of an irrigation ditch is unlikely.

Holding
o The Smith-Iowa Ditch deed only conveyed a right-of-way easement.
o The deed contained no specific measurement of the property conveyed.
o The granting of an easement was consistent with the needs of Iowa Ditch as is the language in the instrument
and the use of the land.
o In addition, Iowa Ditch never paid the property taxes on the strip of land.
o These factors and the public policy discouraging separate ownership on narrow strips of land. Require reversal
of the judgment of the trial court.

Quitclaim Deed
KNOW ALL MEN BY THESE PRESENTS:

That Jacob A. C. Smith of the County of Pennington in the State of South Dakota, party of the first part, in consideration of the sum of Fifty Dollars in hand paid by
The Iowa Irrigation Ditch Company a Corporation with its principal office at Rapid City, County of Pennington and State of South Dakota, party of the second part, the
receipt whereof is hereby acknowledged, do hereby grant, remise, release and quit-claim unto the said party of the second part, its successors and assigns
forever, all his estate, right, title, interest, claim, property and demand, of, in and to the following real property, situate in the County of Pennington, State of
South Dakota, and described as follows:

A Strip of land not exceeding forty (40) feet in width following the course of the survey of the Iowa Irrigation Ditch Co. as shown by the recorded plat thereof
across lot four (4) Section five (5) in Township One (1) North of Range Eight (8) East B.H.M. to be used as a right of way for an Irrigation Ditch,

It is hereby agreed as a further consideration for payment of this right of way, that the party of the second part will furnish water at the regular established price
fixed by said second party, for the purpose of irrigating all the land owned by the party of the first part, as soon as the ditch contains water that can be used for this
purpose, and the party of the second part also agrees to place a bridge over said ditch at such place as the party of the first part may demand.



TO HAVE AND TO HOLD the same, together with all the hereditaments and appurtenances thereunto in anywise appertaining.
WITNESS my hand and seal this 26th day of April A.D. 1898.

Jacob A. C. Smith (SEAL)

Determining if Deed was conveyed in fee simple or an easement.
1. the amount of consideration;
a. in consideration of the sum of Fifty Dollars
2. the particularity of the description of the property conveyed;
a. A Strip of land not exceeding forty (40) feet in width following the course of the survey of the Iowa Irrigation Ditch Co. as shown by the recorded plat
thereof across lot four (4) Section five (5) in Township One (1) North of Range Eight (8) East B.H.M. to be used as a right of way for an Irrigation Ditch,
3. the extent of the limitation upon the use of the property;
4. the type of interest which best serves the manifested purpose of the parties;
5. the peculiarities of wording used in the conveyance document;
6. to whom the property was assessed and who paid the taxes on the property; and
7. how the parties to the conveyance, or the heirs or assigns, have treated the property.



Rules
o

Class Notes
IN PARI MATERIA.
o Upon the same matter or subject.
o Statutes in pari materia are to be construed together are to be construed together.

Sneaky
o NW does not really want the property; they just want to be bought out. That is why NW is arguing so strongly that they own the ditch in fee.

How to avoid litigation
o You take out anything that is on the Fee Side of the Analysis.
o I hereby grant of easement right of way for only one purpose irrigation.

o Analysis
First, Analyze the 4 corners of the Document. If clear, stay within and interpret the document accordingly. If not clear, have to go beyond the
document to determine what was granted based upon the factors.
Second, can you say that the document from corner to corner is ambiguous.
i. Rules of Construction
i. The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be ascertained by a fair
consideration of the entire instrument and the language therein, without undue emphasis on any particular part or provision of
the document.
ii. Each word and provision should be given that significance which is consistent with, and will effectuate the manifest intention of the
parties.
iii. A grant is to be construed in favor of the grantee.
iv. A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser
estate was intended. (Jacobs Easement Argument)
v. Where the term "right of way" is used in a deed it usually indicates that ONLY an easement or a right of passage is being
conveyed or reserved
vi. If, however, construction of the instrument as a whole leaves the intention of the parties in doubt, consideration must be given to
the situation and circumstances of the parties at the time of the execution of the deed in order to determine what was within
their contemplation at that time.

Determining if Deed was conveyed in fee simple or an easement.
1. the amount of consideration;
a. Lots Either fee (or, perhaps perpetual easement)
b. Not much - easement
2. the particularity of the description of the property conveyed;
a. Very particular fee
b. Not particular - easement
3. the extent of the limitation upon the use of the property;
a. Few limitations Fee (general use)
b. Lots of limitation easement (limited use)
4. the type of interest which best serves the manifested purpose (irrigation ditch) of the parties;
5. the peculiarities of wording used in the conveyance document;
a.
6. to whom the property was assessed and who paid the taxes (the owners in fee) on the property; and
7. how the parties to the conveyance, or the heirs or assigns, have treated the property. (Jacobs filled the ditch, and make a parking
lot, he treated it like he owned it)


If the document is ambigious, the court has to find out the general intent of the parties.
o Public Policy
It is discourage to give in fee simple narrow strips of land. (But that does not mean we cannot do it).
Why is this the case? I does not increase the value, and it splits the parcels, which will bring down the value as a whole.

T-Analysis
NW Reality (Arguing for fee grant, and not easement)

o Jacobs (arguing that easement was granted, not fee).
o Paid $120 earlier for 41 acres (2.92/acre) and $50 or the strip of the
land. This indicates that a fee was intended most likely since the
considerations is significant compared to what they had earlier paid
for a much larger parcel in fee.
o No accurate description was contained in the grant, which cuts toward it being an
easement. The more descriptive it is, the more it indicates a fee grant, and not an
easement
o Bridge May the was part of the deal to buy it in fee o Water was shared indicating that it probably was an easement
o Granting clause specified all his estate, right, title, interest, claim,
property and demand a strip of land Sounds more like a fee
conveyance, than easement.
o Bridge may be this was negotiated to provide access
o Strip of land sounds like a fee, but it was not described with leaps
and bounds.
o Strip of land written vaguely, not identifying where it goes
o To be used as a right of way used for a limited purpose as an irrigation ditch. When
you own in fee you get unlimited uses

-----
Greaves v. McGee, 492 So. 2d 307 Supreme Court of Alabama 1986

Chapter 4 Title Non-Possessory Interests
Page 343 Topic Express Easements: Classifications & Manner of Creation
Quick Notes
Steps to Scrutinize
o Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument.
1. The court should be careful to try to give meaning to every clause and provision of the instrument.
2. Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created.
3. Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument.
Book Name Fundamentals of Modern Property Law: Rabin; Kwall, Kwall. ISBN: 978-1-59941-053-1.

Issue
o Whether the Yorks conveyed a fee simple interest in a strip of their land to Lamar Country or simply a right of way across their land?
Easement, Right of Way.

Procedure
Circuit o Found for the appellees (McGee).
Supreme o Affirmed

Facts Discussion Reasoning Rules
Pl McGee is the Appellee
Df Greaves is the Appellant
Dispute Description
o This is a dispute over mineral rights.
o The appellees filed a complaint for a
declaratory judgment in the Circuit Court
Greaves and the Lamar County
Commission.
o Seeking to establish their ownership of
the minerals underlying a public road which
crosses their land.
o The appellant, Greaves, counterclaimed
for a declaratory judgment to establish his
right to the minerals in question.
Circuit Court
o Found for the appellees.
Supreme Court
o We affirm.
History
o York acquired title to the land in question
from Gault and wife by a deed.
Exhibit A
o York and wife executed a instrument in favor
of Lamar Country.
o we do hereby release, quitclaim and
convey to the County of Lamar, a body
corporate, for the use and purpose of
Implication: Fee Simple vs Right of Way

Fee Simple Implication
o If a fee simple interest was conveyed, then the judgment of the trial court would have to be reversed.
o The appellant would have the right to the minerals by virtue of his oil, gas, and mineral lease from Lamar County.

Right of Way Implication
o If only a right of way was conveyed, then the judgment would have to be affirmed.

Construing Instrument
o It is a fundamental precept of property law that courts should construe instruments so as to give effect to the
intent of the parties.

Court has the burden of scrutinizing deeds.
o Which is facilitated by a body of judicially and legislatively created guidelines for the construction of deeds
conveying property.

Steps to Scrutinize
o Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument.
1. The court should be careful to try to give meaning to every clause and provision of the instrument.
2. Second, the court should look to the factual situation and the circumstances existing at the time the
instrument was created.
3. Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the
instrument.

Court
o Yorks conveyed only a right of way to Lamar County.
maintaining a public highway, all of our
right, title, interest and claim in and to
the following strip of land twenty feet wide
to be used for the purpose of
constructing a road of second grade.
Covenant Language
o "A right of way for public road twenty feet
in width.
Oil, Gas and Mineral Lease
o The Lamar County Commission executed an
oil, gas and mineral lease in favor of
Greaves.
(See Issue)

Replete with Limited Purpose of the Conveyance
o "a right of way for [a] public road twenty feet in width."
o The instrument is replete with references to the limited purpose of the conveyance (i.e., to allow for the
construction and maintenance of a public road across the Yorks' land).

Strip of land Disagree
o Disagrees with the granting clause to convey a fee.

way intended to be a strip through any of the Yorks land
o The road was already in construction at the time of the conveyance.
o The remainder of the road to be constructed was to be discretionary with the county.
o The language also gives rise to an inference that the road, once completed, was subject to future relocation
anywhere on the York land at the discretion of the county.

Appellees Right of Way Argument (McGee)
o The appellees argue that the uncertain description of the "strip of land" renders the instrument ineffective as a
conveyance of a fee simple title as a matter of law.
o They further argue that such an uncertain description is indicative of the Yorks intent to convey only a right of
way.

Appellant Argument (Greaves)
o The appellant insists that the instrument is effective as a conveyance of fee simple title, because the location of
the strip is capable of ascertainment.
o He argues that it is where the road was located at that time or where it was eventually located and exists
presently.

Court No fixed locatable Boundary
o The trial court found that no evidence was presented at trial that the "strip of land" could be ascertained and
determined to have a fixed and locatable boundary.
o It further found that the road had been moved and relocated on several occasions.

Court No consistent with intent
o The "open" description contained in the instrument strongly implies that no conveyance of a fee was
contemplated by the Yorks.
o It is not reasonable to infer that the Yorks would have intended such a result.
o Quite obviously, the Yorks were not certain at the time of the conveyance where the road would ultimately be
located or relocated on their land.
o This kind of uncertainty is simply not consistent with an intent to convey a fee interest.

Court Lamar County
o Judge Allen, Chairman of the Lamar County Commission, testified that the county had never claimed any interest
in the minerals underlying the road.

In both Schneider and Rowell
o The deeds in question affirmatively showed that a conveyance of specifically described land was made,
accompanied by a recitation of the use to which that land was to be put, and the Court held that a fee simple
title was conveyed to the land described.

In this case
o The granting clause is followed by a description that uses the language right of way.
o When the granting and description clauses are considered together, it can be seen that the "strip of land" referred
to in the last line of the granting clause is characterized in the description clause as a right of way.

Affirmed

Rules


Greaves (Fee to Lamar City)
o He is arguing fee so he can have mineral rights underneath the road.
McGee (Easement to Lamar City)
o McGee is arguing that Greaves has a easement instead of a FEE, therefore
McGee would have the FEE and the mineral rights.
o More consideration would have point to a fee, but it was only $1. o Consideration was $1, which was nominal (not very much).

o If use was general and not limited for a specific purpose, it would have point
to a FEE. In this case, the specific use of land was for a public highway.
o Public Highway - The land will be SPECIFICALLY used as a public high way.
o Language - for the use and purpose of maintaining a public highway.
o Language - all of our right, title, interest

o Language - strip of land twenty feet wide.
o Language - for the purpose of constructing a road .
o Metes in bounds, in this case, was the description of the WHOLE land, and
not the road. (Tricky)
o No metes and bound of the road.
o o Language - right of way for public road
o Metes and bounds do not change if it is a fee. o Language - is located now, or may hereafter be located - means it can be
relocated.
Language - forever, for the purpose of public road - This sounds like a perpetual
easement.

Class Notes
Analysis
o Look at 4 corners
IF NOT ambiguous, THEN court will give full force to words.
IF ambiguous, THEN look outside of the 4-corners at
RULES OF LAW
o RULES OF CONSTRUCTION (Page 345)
1. The paramount rule of construction is that the intention of the parties, and the grantor in particular, is to be
ascertained by a fair consideration of the entire instrument and the language therein, without undue emphasis on
any particular part or provision of the document.
2. Each word and provision should be given that significance which is consistent with, and will effectuate the manifest
intention of the parties.
3. A grant is construed in favor of the grantee.
4. A fee simple title is presumed to be intended to pass by grant of real property UNLESS it appears from the grant that a
lesser estate was intended.
o Yes
5. Where the term right of way is used in a deed, it usually indicates that ONLY an easement or a right of passage is being
conveyed or reserved.
o An instrument should be construed as conveying an easement UNLESS the instrument, considered as a whole,
indicates that the parties.

o IF still in doubt, THEN LOOK AT OTHER FACTORS.
1. the amount of consideration;
a. Lots Either fee (or, perhaps perpetual easement)
b. Not much - easement
2. the particularity of the description of the property conveyed;
a. Very particular fee
b. Not particular - easement
3. the extent of the limitation upon the use of the property;
a. Few limitations Fee (general use)
b. Lots of limitation easement (limited use)
4. the type of interest which best serves the manifested purpose (irrigation ditch) of the parties;
Would the original parties have best been served granting an easement or fee?
The strip of land could be relocated. (Easement).
5. the peculiarities of wording used in the conveyance document;
a. Right of way - Easement
6. to whom the property was assessed and who paid the taxes (the owners in fee) on the property; and
McGee - Was paying.
7. how the parties to the conveyance, or the heirs or assigns, have treated the property.
a. Fee - if you act like you own it.
PUBLIC POLICY.

Hurst v. Baker, 1997 WL 215767 Court of Appeals of Ohio 1997

Chapter 4 Title Non-Possessory Interests
Page 351 Topic Express Easements: Classifications & Manner of Creation
Quick Notes
o The well settled principle that it is the intent of the parties to this instrument which will control its interpretation.
o If that intention is clear from the language of the deed, then it will be given effect regardless of technical rules of construction.
Book Name Fundamentals of Modern Property Law: Rabin; Kwall, Kwall. ISBN: 978-1-59941-053-1.

Issue o Whether road in 40 acre track conveyed to William Lork was in fee simple? Yes.

Procedure
Bench o In favor for the Appellee (Baker)
Appellate o Trial Court is in error. Reversed and remanded showing the appellants (Hurst) are the fee simple owners of the roadway.

Facts Discussion Key Terms Rules
Pl Hurst (Appellants), who appealed. [40 acre
track].
Df Baker (Appellees), who won last time. [54
acres track]
Description
o This case involves a dispute over a
roadway by contiguous property owners.
o Both the roadway, and the properties
appurtenant were originally part of a much
greater tract of land acquired by a common
title holder more than eighty (80) years ago.
Appellants Commenced Action (Fee Simple Arg)
o Appellants commenced the action below on April 7, 1995, asserting that they were the owners of the fee simple
interest in the roadway specified in their chain of title to the forty (40) acre tract.
o They sought to have that interest quieted against any claim of interest by the owners of the fifty-four (54) acre
tract.

Appellees Easement (Easement Arg)
o Appellees filed an answer denying that appellants owned a fee simple interest in the disputed roadway. It was
asserted by appellees that the road through their property was merely an easement ... to be used in common
by the owners of both tracts.

o Approximately ninety-four (94) acres of
real estate which referred to as the master
tract) were conveyed to John and Effie
Lowks.
Conveyed Land to Son (William)
o Lowks split off a portion of the master
tract and conveyed it to William A. Lowks.
o The deed for this property was forty (40)
acre tract)
William died without will
o His heirs sold land to Haynes.
o Same legal tree description.
Haynes
o Sold land to Burton.
o Different legal description.
o The deed also provided that the grantees
(Mr. and Mrs. Burton) would receive an
open roadway in common, twenty feet
wide, extending westerly across the land
formerly owned by Lowks, now owned by
Baker, extending to the county road known
as Lowks road.
Roadway in Common
o Was continued in all further conveyances.
o Including the acquisition of the 40 acre
track by the appellants.
Appellees
o Also acquire their property through mesne
conveyances from the original master track.
o The 54 acre remainder was conveyed to
Perry and Cora Lork.
o Same legal description was used except
for the forty acre track and the road.
Baker
o The identify description was used 18
years later when conveyed to Ernest Baker.
o Baker sold land with new legal
description.
o The deed further provided that a roadway
20 feet in width running through the
property was excepted from the
conveyance.
o This sort of description was thereafter
used in all instruments affecting title to the
fifty-four (54) acre tract up to, and including,
the most recent transfer in 1994.
Bench Court
o The bench trial concluded with both parties stipulating that they, and their predecessors in title, had all made
continual use of the road at issue herein.
o Awarded appellees the fee simple owners of the roadway.

Bench Court Concerns
o At first the conveyance looked like it was made in fee.
o However, the authority of a grantor to erect fences and gates around a roadway was more consistent with the
grant of an easement.
o A deed purporting to convey a road or roadway is usually construed as passing an easement.
o The court found it unlikely that John and Effie Lowks would convey a fee interest in the roadway through the
remainder of their property to the back forty (40) acre tract.
o Such action would have, effectively, cut the remaining fifty-four (54) acres into two (2) separate parcels.

Second hearing
o To determine the nature of the easement and the parties rights and responsibilities with respect to each other's
interest(s).
o The trial court entered judgment finding that the easement was non-exclusive and could be used in common
by both parties.
o Appellants were adjudged to have the responsibility for maintaining the roadway in good repair and appellees
were instructed that they could not farm the fifty-four (54) acre tract (i.e. the servient estate) in any manner
which could interfere with ingress/egress to the back forty (40) acre tract.
o A survey giving a precise location and metes and bounds description of the easement was later approved by the
trial court.
o This appeal followed.

Appellate Court
o Construction of a deed is a matter of law.
o The standard of review is de novo.
o The appellant court will conduct their own standard of review.

Appellants Argue
o The lower court erroneously ruled in favor of appellees and that they are, in fact, the fee simple owners of the
disputed roadway.
Appellate Court
o We agree.
o The outcome of this case is governed by the original deed from John and Effie Lowks to William A. Lowks in
1912.

Appellate Court - Roadway was conveyed in Fee Simple
o Our analysis begins with the well settled principle that it is the intent of the parties to this instrument which will
control its interpretation.
o If that intention is clear from the language of the deed, then it will be given effect regardless of technical rules of
construction.
o We find that the language of this deed is sufficiently clear to determine that a fee interest to the disputed roadway
was conveyed to William A. Lowks and continued in the chain of title to the forty (40) acre tract down to
appellants.

Legal Description Analysis
o The road was also included in the grant.
o The word also means in addition or likewise.
o Mean it is equal in weight to what precedes it.

Logically Follows
o Given that the grant of such forty (40) acres was in fee simple, it logically follows that the grant of the road was
also in fee simple.

Never used terms
o The grantors never once made use of any terms such as easement or right-of-way which would have clearly
indicated that only a means of ingress/egress was being transferred.

keep both sides of said road fenced with no gates
o This is in the deed simply to ensure that the grantee has unimpeded access back along the road to the forty (40)
acre tract.
o This would be of concern to the owner of that tract irrespective of whether he owned the road in fee or merely had
an easement to use it.

Rule
o Deeds must be construed most strongly in favor of the grantee, and against the grantor, in order to derogate
[detract] as little as possible from the extent of the grant.
o To pass the roadway as an easement would derogate the grant.

Rule
o Deeds must be construed as conveying the grantor's entire interest in the land described therein unless a clear
limitation is placed.
o A fee interest is obviously a greater estate than an easement.

Rule
o In the absence of language relating to the use or purpose of the grant, or language limiting the estate conveyed,
a transfer of a strip of land is generally construed as passing an estate in fee.


Appellate Court two separate parcels
o There was no legal impediment to conveying a fee simple on the road way.
o The court recognizes that it would be unusual.

Holding
o Trial Court is in error. Reversed and remanded showing the appellants are the fee simple owners of the
roadway.

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