Colorado § 38-30-107 - Estate granted deemed fee simple unless limited.

§ 38-30-107. Estate granted deemed fee simple unless limited.

Every estate in land which is granted, conveyed, or devised to one, although other words necessary to transfer an estate of inheritance are not added, shall be deemed a fee simple estate of inheritance if a lesser estate is not limited by express words or does not appear to be granted, devised, or conveyed by operation of law.

Source: R.S. p. 107, § 7. G.L. § 166. G.S. § 204. R.S. 08: § 675. C.L. § 4876. CSA: C. 40, § 8. CRS 53: § 118-1-7. C.R.S. 1963: § 118-1-7.

ANNOTATION

Law reviews. For article, "Some Rules of Future Interests Can be Used to Clear Titles", see 12 Colo. Law. 1229 (1983).

Words of inheritance still give rise to fee simple estate. The use of words of inheritance, even though not required under this section, still gives rise to an estate in fee simple; the meaning or effect has not been changed, only the necessity for their use has been removed. In re Newby's Estate, 146 Colo. 296, 361 P.2d 622 (1961).

Rebuttable presumption of fee simple estate. The use of the word "deemed" in this section shows that only a rebuttable presumption is intended. Bd. of County Comm'rs v. Morris, 147 Colo. 1, 362 P.2d 202 (1961); Farmers Reservoir & Irr. v. Sun Prod., 721 P.2d 1198 (Colo. App. 1986).

Estate in fee created by will. Where an estate in lands is created by will, it will be deemed to be in fee simple, unless the language of the will clearly shows that a lesser or different estate was intended to be established. Tarr v. Newby, 146 Colo. 296, 361 P.2d 622 (1961).

Title passes by use of word "convey". The word "convey" is the equivalent of the word "grant"; and by the use of the word "convey" in a deed, the title passes. City of Leadville v. Coronado Mining Co., 29 Colo. 17, 67 P. 289 (1901).

Use of the word "heirs" is not necessary to create a fee. Haymaker v. Windsor Reservoir & Canal Co., 81 Colo. 168, 254 P. 768 (1927); Tarr v. Newby, 146 Colo. 296, 361 P.2d 622 (1961).

Ambiguity construed in favor of grantee. Where ambiguity exists in the terms of an instrument creating an interest in real estate, the construction thereof must favor the grantee. Clevenger v. Continental Oil Co., 149 Colo. 417, 369 P.2d 550 (1962); Farmers Reservoir & Irr. v. Sun Prod., 721 P.2d 1198 (Colo. App. 1986).

Where the deed contains no language expressly limiting the fee interest, but language creating an interest in real property is ambiguous, it is to be construed in favor of the grantee. Kanarado Mining & Dev. Co. v. Sutton, 36 Colo. App. 375, 539 P.2d 1325 (1975).

Interpretation of parties' intent allowed only when ambiguous. The intention of the parties to a conveyance is open to interpretation only when the words used are ambiguous. Radke v. Union P. R. R., 138 Colo. 189, 334 P.2d 1077 (1958).

Reservation construed to retain fee simple in granter. A reservation will be construed as an exception where that is the plain intent and a grantor will retain in himself a fee simple estate in the portion reserved. Radke v. Union P. R. R., 138 Colo. 189, 334 P.2d 1077 (1958).

Right to prospect for minerals is license, not reservation. A right to prospect for and to remove minerals if found, is not a reservation of an estate in real property, but a mere license, subject to revocation before its exercise by the owner of the fee simple estate. Radke v. Union P. R. R., 138 Colo. 189, 334 P.2d 1077 (1958).

Grant of privilege to take coal is easement. If an owner grants to another the right or privilege of taking coal from his lands, this grant, if not an exclusive one, is not the grant of an interest in land, but of an easement or incorporeal right, which leaves the title to the coal in place remaining in the grantor. Radke v. Union P. R. R., 138 Colo. 189, 334 P.2d 1077 (1958).

Fee simple determinable conveyed. Where a block of ground within the limits of a city was conveyed to the county, with the proviso that if any part thereof should be used otherwise than for a courthouse, the premises should revert to the city, the conveyance conveyed a fee simple, determinable upon the condition expressed. Bd. of Comm'rs v. City of Colo. Springs, 66 Colo. 111, 180 P. 301 (1919).

Grant of all coal on land is sale. Grant of all the coal on the grantor's land, or of the exclusive right to mine the coal, is a sale of the coal in place. Radke v. Union P. R. R., 138 Colo. 189, 334 P.2d 1077 (1958).

Applied in Teller v. Hill, 18 Colo. App. 509, 72 P. 811 (1903); Huston v. Gaffner, 67 Colo. 377, 176 P. 952 (1919); Simson v. Langholf, 133 Colo. 208, 293 P.2d 302 (1956).