Summary of Northwest Realty v. Jacobs, S. Ct. S. Dakota 
Relevant Facts: Iowa Ditch began to obtain quitclaim deeds along the course of a proposed irrigation ditch. The various deeds ranged from unconditional fees to easements with “reverter to grantor," clauses. Several tracts of land had no conveyance to Iowa. Smith executed and delivered a quitclaim deed to Iowa for a tract 40 ft wide in exchange of irrigation water. In a flood the head gate of the ditch was destroyed. The next year the stockholder’s of Iowa voted to dissolve the corp and deliver the quitclaim deeds to the stockholders who owned property along the ditch. One mo later a resolution was passed where the deed in question passed to Shabina, who in turn conveyed it to the PL. After acquiring specific lots, Dfs filled a portion of the ditch with fill dirt, and paved it for use as an automobile dealership.
Legal Issue(s): Whether the original transfer of the deed conveyed a fee title or only a right of way easement?
Court’s Holding: Right of way.
Procedure: Trial ct granted an injunction for Pl; Df appealed, Reversed.
Law or Rule(s): Where clauses in a deed are inconsistent construction is determined from the intention of the parties ascertained by fair consideration of the entire instrument and the language therein, w/o undue emphasis on any particular part or provision. Each word or provision is given significance consistent with, and what will effectuate the intent of the parties. A grant is construed in favor of the grantee, and a fee 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.
Court Rationale: Where the words right of way are used in a deed it usually indicates that only an easement or a right of passage is being conveyed or reserved. The deed contained no specific measurement of the property conveyed, which is indicative of an easement. The granting of an easement is consistent w/ the needs of Iowa as is the language in the instrument and the use of the land. Iowa never paid the property taxes on the strip of land. The manifest purpose of the parties is best served by an easement and not a fee simple. Words of inheritance in this deed are of no assistance. Use of the terms “over and across," “across’ or ‘over’ when used alone in a deed does not imply an easement, but 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 intended. Public policy also discourages separate ownership on narrow strips of land.
Plaintiff’s Argument: A restriction in a deed in the use of the property conveyed does not create an easement.
Defendant’s Argument: The intent of the parties and the language of the deed indicate that the purpose of the use was as a right of way easement.
Perpetual easement – easement that never ceases.