Background
The dispute centers on surface and mineral interests along the Yellowstone River in McKenzie County, near the North Dakota-Montana border. In 2015, Whiting Oil and Gas Corporation filed an interpleader action to resolve competing claims to oil and gas interests. The State initiated a separate quiet title action in 2019, and the cases were consolidated. Two parcels were at issue: the “North Island,” situated in Section 30, and the “West Bank,” situated between the river and the state line in Section 31. The parties stipulated that the Yellowstone River was navigable at statehood, giving North Dakota sovereign title to the riverbed up to the ordinary high water mark.
After a five-day bench trial, the district court found that the North Island was created when an avulsive event caused the river to surround previously existing farmland — not by gradual in-channel accretion — and therefore belonged to the private shoreland owners rather than the State. As to the West Bank, the court found that it originally formed as an in-channel island that later attached to the shore, supporting State ownership, but then granted summary judgment to defendant Norby on the ground that a 1950 deed from the State Treasurer conveyed lots whose western boundary extended all the way to the North Dakota-Montana border, thereby transferring the West Bank to Norby’s predecessors. The State appealed both rulings; Norby and the Kuykendall Group cross-appealed.
The central legal questions were (1) whether the North Island arose through avulsion — leaving ownership with the private landowners under N.D.C.C. § 47-06-10 — or through in-channel accretion belonging to the State under N.D.C.C. § 47-06-08; and (2) whether the 1950 deed’s western boundary was the Yellowstone River (an ambulatory riparian boundary) or the fixed state line, which would determine whether the State had already conveyed away its interest in the West Bank.
The Court’s Holding
The Supreme Court affirmed that the State does not own the North Island and reversed the ruling that the State does not own the West Bank. On the North Island, the court upheld the district court’s factual finding — based on aerial photographs from 1939 and 1949 and expert geological testimony — that the river surrounded existing farmland to create the island rather than depositing sediment in the riverbed. Under N.D.C.C. § 47-06-10, when a stream divides itself and surrounds land belonging to a shore owner, the island belongs to that owner, regardless of whether the surrounding process was sudden or gradual. The court rejected the State’s argument that a legal presumption from Woodland v. Woodland, 147 N.W.2d 590 (N.D. 1966), required the court to treat the change as accretion absent direct evidence, holding that the Woodland presumption applied only to how a river changes its channel, not to the ownership rule triggered by § 47-06-10. The court also rejected the State’s reclamation theory under N.D.C.C. § 47-06-06, which applies when land is swept to an opposite bank, a scenario not present here.
On the West Bank, the court reversed the summary judgment in Norby’s favor. The court concluded that the 1950 deed, which conveyed government lots “less parts eroded by the Yellowstone River,” did not extend the conveyed property west of the river to the state line. The lots were originally surveyed and patented with the Yellowstone River forming their western boundary. Because the deed’s western boundary was the river — an ambulatory riparian line — the common law doctrines of accretion and erosion governed the boundary’s movement over time. The river later moved eastward, entirely eroding the original lot acreage; the West Bank, lying west of the river, was never part of what the deed conveyed. The court also held the State’s claim is not barred by laches, and that the defendants forfeited any statute-of-limitations defense by failing to raise it below.
Key Takeaways
- Under N.D.C.C. § 47-06-10, if a river surrounds existing land to form an island — whether gradually or through avulsion — the island belongs to the original shoreland owner, not the State, even in a navigable waterway.
- The Woodland presumption favoring accretion over avulsion applies only to determining how a river changed course, not to the ownership rule under § 47-06-10, which is triggered regardless of the speed of the surrounding process.
- Where a government patent or deed describes lots with a river as a boundary, that boundary is ambulatory: if the river later migrates and leaves new land between the old channel and the state line, the deed does not carry title to that new land — it remains with the State.
- N.D.C.C. § 47-06-06 (reclamation from land “united” to an opposite bank) does not apply to a freestanding island not deposited on a riverbank.
- A statute-of-limitations defense not raised in the district court is forfeited and will not be addressed on appeal.
Why It Matters
This decision provides important guidance for title disputes involving shifting rivers in the Williston Basin and other oil-producing regions where mineral rights track surface boundaries. By clarifying that the avulsion/accretion distinction does not control ownership of an island formed when a river surrounds existing land, the court limits the State’s ability to claim mineral-rich riverine islands through the navigable-waters doctrine. At the same time, the court’s ruling that an ambulatory river boundary in a government deed does not expand the grantee’s title to newly exposed land on the far side of the migrated river reinforces the State’s retained sovereign interest in the riverbed corridor.
For practitioners handling oil and gas title opinions in western North Dakota, the case underscores that ownership of acreage near meandering rivers requires careful analysis of historical aerial photography, hydrological expert evidence, original government surveys, and the precise language of conveyances — and that the outcome may turn on whether the controlling statute is § 47-06-08 (in-channel accretion), § 47-06-10 (river surrounding existing land), or § 47-06-05 (bank accretion), each of which points to a different owner.