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10. Northwest Realty Co. v. Theodore C. Jacobs and Olive I. Jacobs,
Supreme court of South Dakota 1978 --- 273 N.W.2d 141
1. Fact
On April 26, 1898, Jacob A. C. Smith executed and delivered a quitclaim deed to Iowa Ditch. In consideration, the Iowa Ditch issued shares of stock to the owners of each tract of land irrigated from the ditch. Three shares of them were assigned to the defendants on January 1, 1977. Later, the land on either side of the ditch which had been owned by Smith was replatted and the defendants acquired the land in question on October 19, 1973, and on January 24, 1975.
After acquiring the lots, defendants filled a portion of the ditch for parking lot and automobile dealership.
In the meantime, on February 12, 1973, the directors of the corporation adopted a resolution to convey "the real property owned by the corporation" to Kenneth Shabina and four others. A quitclaim deed to the property in question was issued to Shabina. finally, the deed to the property in question was conveyed to the plaintiff.
Later, plaintiff brought an action claiming fee title to the ditch and to have defendants remove the fill from the ditch.
2. Issue
whether the Smith-Iowa Ditch deed conveyed a fee title or only a right-of-way easement.
3. Rule
1> Black Hills Power and Light Co. v. Schuft 1972, 86 S.D. 194, 193 N.W.2d 429
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.
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.
2> SDCL 43-4-16, 26 C.J.S. Deeds § 82e
a grant is to be construed in favor of the grantee
3> SDCL 43-25-15; 26 C.J.S. Deeds § 104c
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.
4> Sohio Petroleum Company v. Hebert, 1962 La.App., 146 So.2d 530
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. In such a case the instrument should be construed as conveying an easement unless the instrument, considered as a whole, indicates that the parties intended the passage of fee title.
The resolution of the problem of determining whether a deed intended to convey a fee simple title or an easement involves the consideration of the following factors: (1) the amount of consideration; (2) the particularity of the description of the property conveyed; (3) the extent of the limitation upon the use of the property; (4) the type of interest which best serves the manifested purpose of the parties; (5) the peculiarities of wording used in the conveyance document; (6) to whom the property was assessed and who paid the taxes on the property; and (7) how the parties to the conveyance, or the heirs or assigns, have treated the property.
4. Application
Supreme Court of South Dakota considered that following factors in its judgment. First of all, the degree of precision of description of the land in question is lacking, which indicates much more to a grant of easement than a fee. Secondly, the deed expressly limits the use to a right of way for irrigation purposes and shows that the part of the consideration of the grant is to supply water for grantor’s land. thirdly, a perpetual easement was sufficient for Iowa Ditch to carry out its business necessary for the construction and repair of an irrigation ditch. Finally Iowa Ditch never paid the property taxes on the strip of land.
5. Conclusion
reversal of the judgment of the trial court.
6. Classnote/ Feedback
Generally, a quitclaim is a formal renunciation of a legal claim against some other person, or of a right to land.[1] A person who quitclaims renounces or relinquishes a claim to some legal right, or transfers a legal interest in land.[2] Originally a common-law concept dating back to Medieval England, the expression is in modern times mostly restricted to North American law, where it often refers specifically to a transfer of ownership or some other interest in real property.
in pari materia
A canon of construction holding that the meaning of an ambiguous law can be determined in light of other statutes on the same subject matter.
Conveyance: an instrument, including a conditional sales contract, affecting title to, or an interest in, property.
An action to quiet title is a lawsuit brought in a court having jurisdiction over property disputes, in order to establish a party's title to real property, or personal property having a title, of against anyone and everyone, and thus "quiet" any challenges or claims to the title.
Quitclaim deed: 주로 가족끼리, notary public 은필요, real property lawyer는 없어도 됨.
Injunction: imminent 한 damage가 입증이 된 경우- TRO(temporary restraining order)
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