Hurst v Baker
Ct. App Ohio [1997]
Author:- Sam Biers

Relevant Facts: Approximately 94 acres, master tract, was conveyed originally to John and Effie Lowks in 1912.   They conveyed 40 acres to their son William. William died intestate 9 yrs later. His heirs sold the land to Haynes, who sold it to Burton.  Haynes made a change in the description “roadway in common.”  This description continued until Hurst purchased it in 1981.  The remaining 54 acres was acquired through mesne (intervening) conveyances, first by Perry and Cora Lowks, and then by Baker.  When Baker sold the property a new description provided that “a roadway 20 feet in width” running through was excepted from conveyance.  This description continued until the Elliotts purchased it in 1994.   Both parties stipulated that they had all made continual use of the road.

Legal Issue(s): Whether the language of the deed is sufficiently clear to determine that a fee interest to the roadway was conveyed to William and continued in the chain of title to the 40 acre tract to the appellants?

Court’s Holding: Yes

Procedure: Bench trial in favor of Df/ee, Ct of App Reversed; Reversed

Law or Rule(s): It is the intent of the parties of an instrument which will control its interpretation. If the intentions are clear from the language of the deed, then it will be given effect regardless of technical rules of construction.

Court Rationale:   There is no dispute that a fee interest was conveyed in the 40 acres.  The legal description then goes on to state that the road was “also” included in the grant.  The word “also” generally means ‘in addition’ or ‘likewise.’  Given that the grant was in fee, it follows that the grant of the road was in fee simple.  The grantors never included language indicating an easement or right of way.  The requirement that the grantor maintain fences w/o gates is in the deed to ensure that the grantee has unimpeded access.  Instruments such as deeds must be construed strongly in favor of the grantee, and against the grantor in order to derogate as little as possible from the extent of the grant.  In the absence of language, or limitation, relating to the use or purpose of the grant, a transfer of a strip of land is generally construed as passing in fee.

Plaintiff’s Argument:(Df/ee) The language requirement that fences w/o gates evidences on the passing of right to ingress/egress, not fee.

Defendant’s Argument:(Ant’s) The language of the deed conveying the roadway and the forty acres together are in fee.

An Exception - retains for the grantor a pre-existing interest in a described geographical part of the property or recognizes a previously existing property right in a 3^rd party.