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Northwest Realty Co. v. Jacobs
Supreme Court of South Dakota, 1978
P, Northwest Realty Co. sought an injunction requiring D, Jacobs to remove large amounts of fill dirt (the parking lot) from the property. D counter-claimed seeking a judgment quieting title.1
1895 Iowa Ditch Company began to obtain quit-claim deeds 2 along the ditch.
1898 Smith delivered a quitclaim deed to Iowa Ditch. (Character of this deed is the issue of the case)
1973 D, Jacobs acquired this lot, and filled the ditch, part of the ditch is now a parking area.
Iowa Ditch dissolved and Smith’s quitclaim deed was conveyed to P, the Northwest.
P subsequently brought the action, claiming fee title to the ditch, to have D remove the fill from the ditch.
The quitclaim deed in question contains wording representing both a fee and only a right-of-way.
Rule
The paramount rule of construction is that the intention of the parties, the grantor in particular.
A grant is to be construed in favor of the grantee.
And a fee simple title is presumed to be intended.
Where the term "right of way" is used in a deed it usually indicates that only an easement is being conveyed.
In this case,
(1) the amount of consideration
(It covers only 1 for $50, more than nominal. indecisive)
(2) the particularity of the description of the property conveyed
(The description of the strip of land is lacking, indicative of Easement)
(3) the extent of the limitation upon the use of the property
(The grantor's intention was irrigation purposes. Easement)
(4) the type of interest which best serves the manifested purpose of the parties
(The indefiniteness might be necessitated by future construction. Easement)
(5) the peculiarities of wording
(Either a fee simple or an easement.)
(6) who paid the taxes on the property; and
( Iowa Ditch never paid the taxes, Easement)
(7) how the parties have treated the property.
(Filling the ditch, Jacobs believes the conveyed deed was a right of way. On the other hand, the Northwest must have believed they are fee owner for they kept the deed, and sought for injunction)
Consequently, the Smith-Iowa Ditch deed is easement. (By 4/7)
1.
ACTION TO QUIET TITLE.
One in which plaintiff asserts his own estate and declares generally that defendant claims some estate in the land, without defining it, and avers that the claim is without foundation, and calls on defendant to set forth the nature of his claim, so that it may be determined by decree.
It differs from a "suit to remove a cloud," in that plaintiff therein declares on his own title, and also avers the source and nature of defendant's claim, points out its defect, and prays that it may be declared void as a cloud on plaintiff's estate. Manning v. Gregoire, 97 Or. 394, 192 P. 406, 407. ...
2.
Quitclaim deed.
A deed of conveyance operating by way of release; that is, intended to pass any title, interest, or claim which the grantor may have in the premises, but not professing that such title is valid, nor containing any warranty or covenants for title. Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 1095, 3 A.L.R. 940; Pierson v. Bill, 133 Fla. 81, 182 So. 631, 634.
Motel 6 v. Pfile
Third Circuit, 1983
Motel 6 originally operated the motel under a long-term lease agreement with the owner of the motel, Pfiles.
After the motel was partly destroyed by fire, P, the lessee, Motel 6 purchased the motel from D, Pfile and spent two million dollars for rebuilt for the business.
The purchase agreement, however, did not provide for sewage service so that Motel 6 is unable to operate the motel.
Motel 6 sought a permanent injunction in the district court requiring the Pfiles to furnish sewage treatment. Misapplying the Pennsylvania law, the district court denied.
The Circuit court found that Motel 6 is entitled implied easement.
The issue is whether the purchaser of the Motel entile to use the sewage service as implied right of way?
The federal court in diversity applied Burns in Pennsylvania case.
In Burns
easements by implied reservation are to be distinguished from easements which are implied on the grounds of necessity.
Easements by implied reservation are based on the theory that continuous use of a permanent right of way gives rise to the implication that the parties intended that such use would continue, notwithstanding the absence of necessity ..."
In Burns test, implied easement is,
Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement, in favor of another and then sells either, the purchaser takes subject and this irrespective of necessary.
“open" and "visible" mean the system is of a "notorious character."
That the underground pipes may not be "visible" in the literal sense is beside the point, because the existence of the sewage connection was known to the parties.
Under Burns, an implied easement must also be "permanent and continuous".
The "test of a continuous easement is whether or not it is of a nature adapted to continuous use."
In Pennsylvania as long as there is nothing to indicate that the right-of-way was intended to be non-permanent, it is intended to be permanent.
Thus, all of the elements of the Burns test are met.
In sum, the Pfiles subjected the sewage system to an open, visible, continuous, and permanent easement in favor of another, and then sold the motel.
The Pfiles have argued
this case turns on the absence of a provision for sewer treatment services in the contract.
The Burns test governs.
If the test is satisfied, the court imputes the intent to the parties.
The Pfiles argued
the relief requested is improper because it require a personal service.
The sewage service is not a "personal service" in the sense of a labor.
The sewage treatment plant has sufficient capacity to handle the Motel 6.
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