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Ten Rules for Land Deed Interpretation

The following 10 rules of construction, which Judge William J. Hughes of Hamilton Superior Court used in his decision for the Monon Trail in November, 1996, are important because they provide, for the first time, comprehensive rules that are generally applicable to a wide variety of deeds.

1. When interpreting an instrument of conveyance, the Court will look first to the specific wording of the granting clause to determine the object of the conveyance.

2. The interpretation of an instrument of conveyance must consider the instrument in light of the relevant statues in effect at the time of conveyance.

3. The use of titles such as "Warranty Deed," "Right of Way Deed," "Right of Way," or "Deed of (grantor)" is not dispositive of the parties' intent, but when read in context may provide additional evidence of the parties' intent.

4. Conditions in an instrument of conveyance that require later performance by a party to the conveyance should be construed as covenants running with the land or as conditions subsequent and will not necessarily defeat what is otherwise a clear conveyance of fee simple title.

5. Deeds generally contain three important clauses: the granting clause, the habendum clause, and the clause identifying the subject of the conveyance-the "descriptive clause." The significance of the granting clause in deed interpretation has been addressed in Rule 1 above. The habendum clause may modify, limit and explain the grant, but it cannot defeat a grant that is expressed in clear and unambiguous language. The descriptive clause will not defeat an otherwise clear and unambiguous grant, but a vague or indefinite descriptive clause may be considered as evidence of the parties' intent when the instrument of conveyance contains other limiting language or is otherwise ambiguous.

6. Railroads were empowered to receive fee simple conveyances of land upon which railroad lines were located both prior to and subsequent to 1905.

7. "Upon," "across," "through," "over," "on" or any other preposition does not create an ambiguity, in and of itself, in a statutory fee simple form deed that clearly grants a strip of land or parcel of real estate with no other limiting language.

8. The term "right-of-way" had dual usages in the era when the instruments of conveyance at issue were drafted. This dual usage can create confusion in the modern day interpretation of these deeds, and where the Court cannot determine the proper usage of the term, in the context of other deed language, the instrument will be adjudged ambiguous.

9. In construing an instrument of conveyance, the Court must read the entire document in context, giving meaning to every part.

10. In construing an instrument of conveyance, the Court will look at the consideration paid by the grantee railroad as providing additional evidence of the parties' intent. rail.