Hurst (Appellants), who appealed. [40 acre track].
Baker (Appellees), who won last time. [54 acres track]
This case involves a dispute over a roadway by contiguous
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.
Approximately ninety-four (94) acres of real estate which
referred to as the master tract) were conveyed to John and
Conveyed Land to Son (William)
Lowks split off a portion of the master tract and conveyed it to
William A. Lowks.
The deed for this property was forty (40) acre tract)
William died without will
His heirs sold land to Haynes.
Same legal tree description.
Sold land to Burton.
Different legal description.
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
Was continued in all further conveyances.
the acquisition of the 40 acre track
by the appellants.
Also acquire their property through mesne conveyances from the
original master track.
The 54 acre remainder was conveyed to Perry and Cora Lork.
Same legal description was used except for the forty acre track
and the road.
The identify description was used 18 years later when conveyed
to Ernest Baker.
Baker sold land with new legal description.
The deed further provided that a
roadway 20 feet in width running through the
property was excepted from the
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)
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
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)
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.
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.
Awarded appellees the fee simple owners of the roadway.
Bench Court Concerns
At first the conveyance looked like it was made in fee.
However, the authority of a grantor to erect fences and gates
around a roadway was more consistent with the grant of an
deed purporting to convey a road or roadway is usually
construed as passing an easement.
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.
Such action would have, effectively, cut the remaining
fifty-four (54) acres into two (2) separate parcels.
To determine the nature of the easement and the parties rights
and responsibilities with respect to each other's interest(s).
The trial court entered judgment finding that the easement was non-exclusive
and could be used in common
by both parties.
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.
survey giving a precise location and metes and bounds
description of the easement was later approved by the trial
This appeal followed.
Construction of a deed is a matter of law.
The standard of review is de novo.
The appellant court will conduct their own standard of review.
The lower court erroneously ruled in favor of appellees and that
they are, in fact, the fee simple owners of the disputed
The outcome of this case is governed by the original deed from
John and Effie Lowks to William A. Lowks in 1912.
- Roadway was conveyed in Fee Simple
Our analysis begins with the well settled principle that it is
the intent of the parties to this instrument which will control
If that intention is clear from the language of the deed, then
it will be given effect regardless of technical rules of
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
The road was also included in the grant.
The word also means in addition or likewise.
Mean it is equal in weight to what precedes it.
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
Never used terms
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
This is in the deed simply to ensure that the grantee has
unimpeded access back along the road to the forty (40) acre
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
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.
To pass the roadway as an easement would derogate the grant.
Deeds must be construed as conveying the grantor's entire
interest in the land described therein
unless a clear
limitation is placed.
fee interest is obviously a greater estate than an easement.
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
two separate parcels
There was no legal impediment to conveying a fee simple on the
The court recognizes that it would be unusual.
Trial Court is in error. Reversed and remanded showing the
appellants are the fee simple owners of the roadway.