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 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)

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.

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.