Northwest Realty Co. v. Jacobs
Supreme Court of South Dakota
273 N.W.2d 141 (1978)
A 1898 deed to an irrigation ditch company used quitclaim language and referenced a plat showing only a single line, recited additional water-rate consideration "of this right of way," and the company never paid property taxes on the strip; after the ditch company dissolved and conveyed "real property" through successors to Northwest Realty, and the ditch itself was destroyed by flood, the Jacobs filled part of the old ditch for a parking lot, prompting Northwest's injunction suit premised on holding fee title.
Whether, if a deed is ambiguous about whether the interest conveyed is a fee simple or an easement, the ambiguity is resolved by considering the amount of consideration, the particularity of the description of the property, the extent of any limitation of use of the property, the type of interest which best serves the objective intent of the parties, the language of the instrument of transfer, who bears the burden of paying property taxes, and how the parties or their successors have treated the property.