Nw. Realty Co. v. Jacobs

273 N.W.2d 141 (S.D. 1978)



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. 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.


Individuals purchased two lots on either side of a ditch. When the property owners filled a portion of the ditch, a realty company which was a successor to the company which dug the ditch claimed fee simple title to the ditch and filed an injunction seeking to have the owners remove the fill dirt. Their title proceeds from a quitclaim deed which, although contains a clause granting interest in the strip of the property to the grantee, also contains a description of the property which restricts the grant to an easement for a right-of-way. A judgment was rendered in favor of the realty company and the owners sought review.


Did the deed conveyed a fee simple title?




The court determined by examining the original conveyance that only a right of way easement was conveyed and not a fee simple title. 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 simple title. The plat of the survey for the irrigation ditch is simply a single line crossing several parcels of property. It does not indicate the width or final location of the proposed ditch. Therefore, the realty company did not own the fee simple title to the ditch. The judgment of the trial court was reversed. Furthermore, the granting of an easement was consistent with the needs of the realty company as is the language in the instrument and the use of the land. In addition, the realty company never paid the property taxes on the strip of land.

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