Rule of Construction
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
Words are to be construed in
pari material (construed together)
and a construction should be adopted which gives effect to all
Each word and provision should be
given that significance which is consistent with, and will
effectuate the manifest intention of the parties.
A grant is to be construed in favor
of the grantee.
Fee Simple is presumed
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
Where the term "right of way" is
used in a deed it usually indicates that
easement or a right of passage
is being conveyed or reserved.
In such a case the instrument
should be construed as conveying an
the instrument, considered as a whole, indicates that the
parties intended the passage of fee title.
Intention of parties are in doubt
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.
particularity of the description of the property
the extent of the
limitation upon the use of the
the type of
interest which best serves the manifested purpose of the
peculiarities of wording used in the conveyance document;
to whom the property was assessed
and who paid the taxes on the
how the parties to the conveyance,
or the heirs or assigns, have treated the property.
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.
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
However, the consideration is not
inconsistent with a perpetual easement of an irregular
irrigation ditch that divides the property by a meandering
Description is lacking, look more like an easement
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
The description in the deed
indicates that it is not to exceed 40 feet along the course of
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.
Easements do not require a definite
statement of their width, dimensions, or exact location.
The conveyance of fee title requires
a reasonable certainty of the boundaries.
"its successors and assigns forever."
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."
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
Factor: Irrigation Restriction
The deed quite clearly restricts the
use to a right-of-way for irrigation purposes.
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."
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
A perpetual easement would provide
Iowa Ditch with all the rights necessary for the construction
and repair of an irrigation ditch.
The indefiniteness of the location
of the strip could allow the corporation to deviate from the
course of the original construction.
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.
The indefinite but restricted
width and meandering length of the grant suggests
that any use other than that of an irrigation ditch is
The Smith-Iowa Ditch deed only
conveyed a right-of-way easement.
The deed contained no specific
measurement of the property conveyed.
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.
In addition, Iowa Ditch never paid
the property taxes on the strip of land.
These factors and the public policy
discouraging separate ownership on narrow strips of land.
Require reversal of the judgment of the trial court.