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Hurst v. Baker, 1997 WL 215767

Court of Appeals of Ohio






Non-Possessory Interests




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.



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




o         In favor for the Appellee (Baker)


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




Key Terms


Pl Hurst (Appellants), who appealed. [40 acre track].

Df Baker (Appellees), who won last time. [54 acres track]


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.

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.


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.


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.


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.

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.


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.



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.



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.



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.



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






Class Notes