dissenting.
[¶ 53] I respectfully dissent.
[¶ 54] A hundred years ago, when the railroad sought the legal right to cross their land in Mountrail County, some landowners gave deeds to the railroad in lieu of condemnation. We are asked to decide whether the railroad actually took greater property rights from those landowners than it took from condemnation or from the federal government deeds. For its rights-of-way from condemnation and from the federal government, the railroad received only an easement. There is compelling law and fact on which to conclude the railroad took through those deeds from private landowners only what it would have received from condemnation, that is, easements.
[¶ 55] Early in the twentieth century, the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, the predecessor to the Soo Line Railroad Company, sought continuous right-of-way across Mountrail County to construct and operate its rail line. It obtained that right-of-way in part under the 1899 Act of Congress, in part by condemnation, and in part by deeds from private landowners. The various segments of right-of-way under deeds from private landowners were interspersed with right-of-way secured under the 1899 Act and by condemnation. If the private landowners had not conveyed the right-of-way by deed, the railroad had the authority to take the right-of-way by eminent domain (“condemnation”).
[¶ 56] I note the majority agrees that through condemnation and from the federal government, the railroad received only easements.
[¶ 57] In analyzing most of the deeds from private landowners, the majority focuses on the pre-printed “boilerplate” language of the deeds, and omits and ignores the crucial typewritten language. See the majority opinion, at ¶ 22, where it omits the typewritten provisions and replaces them with “[property description].” The typewritten provisions prevail over the pre-printed language, and any handwritten *324language would prevail over both. See N.D.C.C. § 9-07-16. The typewritten language in the deeds, the main portion of which is omitted in the majority’s analysis, supports the logical conclusion that the deeds from private landowners conveyed to the railroad only what it would have taken through condemnation.
[¶ 58] Here is the typewritten language from the Olson deed, which parallels language of the other deeds:
—All that part of the South half of Southwest quarter (S/⅛ of SWjé) of Section Twenty-seven (27), in Township One hundred fifty-two (152) North of Range Ninety (90) West, which lies Southerly of a line that is Northerly of, parallel with and one hundred twenty-five (125) feet distant from the center line of the main track of said Railway Company’s railroad as the same is now located over and across Sections Twenty-seven (27) and Thirty-four (34), in said Township and Range. The land hereby conveyed containing eight and sixty-five (8.65) hundredths Acres, more or less, being a part of the land selected by and now occupied by the first party, by virtue of the Homestead laws of the United States under Homestead entry No. 09385, made at the Minot Land Office, on October 29,1912.—
—And for the consideration aforesaid, said party of the first part, for himself, his heirs, successors and assigns, does hereby release and discharge said party of the second part, its successors and assigns of and from all and every obligation now existing or hereafter arising to locate, establish, maintain or permit any crossing, over, upon, under or across its tracks, right of way or other land for the use or benefit of the owners or occupants of the lands and premises now owned by the party of the first part adjoining the second party’s said railroad.
(Emphasis added.)
[¶ 59] The deed language reflects an intent not to convey all, but to convey “all of that part,” and talks of the “railroad as the same is now located over and across” the land. I believe this language is reflective of an easement. The second typewritten paragraph recited above is also inconsistent with conveyance of the entire fee ownership in that the paragraph would not have been necessary had the railroad been taking more than an easement. The deeds from the private landowners also carry the label “Right of Way” in their titles.
[¶ 60] While the majority may point to boilerplate and other language to argue the railroad took more than an easement, ambiguity would properly be resolved against the railroad which drew the language. See N.D.C.C. § 9-07-19.
[¶ 61] Ambiguity takes us beyond the four corners of the deeds to the context of the deeds and suggests that the deeds from the private landowners conveyed to the railroad only what the railroad would have taken by condemnation — an easement — and that the mineral interests in dispute here properly belong not to the railroad but to the heirs and successors of the homesteaders of a hundred years ago.
[¶ 62] In Lalim v. Williams Cnty., 105 N.W.2d 339, 341 syll. 7 (N.D.1960), this Court held:
A deed must be interpreted to further the intention of the parties and in determining that intention the court may consider the subject matter, the object to be obtained, and the circumstances and conditions existing at the time the deed was executed.
[¶ 63] Here the purpose was undisput-ably to provide right-of-way for the rail*325road. This Court further held in Lalim, 105 N.W.2d at 341 syll. 10:
In determining the intent of the parties to a deed, the grantee of which possesses the power to acquire the property granted by eminent domain for public use and it appears that the property is being obtained for such use, the limitations of the estate which the grantee may acquire by eminent domain may be considered in determining the intent of the parties.
[¶ 64] In Lalim, this Court held that when a party which possesses the power to take by eminent domain obtains a property interest by private deed, “the limitations of the estate which the grantee may acquire by eminent domain may be considered in determining the intent of the parties.” Lalim, 105 N.W.2d at 341 syll. 10. And the" Court held the deed to an entity that could take by condemnation conveyed only an easement. Lalim, at 347.
[¶ 65] As Professor James E. Leahy in his treatise on our North Dakota Constitution makes clear, the railroad had the authority to take by eminent domain (condemnation). James E. Leahy, The North Dakota State Constitution 50 (2003). See Gram Const. Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 36 N.D. 164, 161 N.W. 732, 734 (1916).
[¶ 66] Here, again, it is undisputed that by condemnation the railroad could have taken only an easement. The Lalim precedent says that the railroad received only an easement here.
[¶ 67] The majority argues, at ¶ 5, “The parties did not argue these deeds were involuntary and there is no evidence in the record indicating the deeds were made in lieu of condemnation.” While Lalim would say that where the taking entity has the authority to take by condemnation this does not matter, it seems absurd to argue that if the private landowners had not executed the right-of-way deeds, the railroad would not have used condemnation. Without the right-of-way over the private landowners’ property, the record clearly shows that the rail line in question would have consisted of unconnected segments of track.
[¶ 68] Although a strong argument can be made for the district court’s analysis ruling as a matter of law for the heirs and successors of the homesteaders, I would conclude that the boilerplate language of the deeds relied on by the majority and the crucial typewritten language of the deeds omitted by the majority, as well as the legal authority of the railroad to take by condemnation and the historical context, create a question of fact to be resolved by trial.
[¶ 69] DALE V. SANDSTROM.