262 N.W.2d 726 (N.D. 1978), 9396, Amoco Oil Co. v. State Highway Dept.

Docket Nº:Civ. No. 9396.
Citation:262 N.W.2d 726
Opinion Judge:Erickstad
Party Name:AMOCO OIL COMPANY, Plaintiff and Appellee, v. STATE HIGHWAY DEPARTMENT of the State of North Dakota, Defendant and Appellant.
Attorney:Peter Pantaleo, Sp. Asst. Atty. Gen., State Highway Department, Bismarck, for defendant and appellant., Pringle & Herigstad, Minot, for plaintiff and appellee; argued by Herbert L. Meschke, Minot. [7] Peter Pantaleo, Special Assistant Attorney General, State Highway Department, Bismarck, for def...
Judge Panel:VOGEL, PEDERSON, PAULSON and SAND, JJ., concur.
Case Date:February 16, 1978
Court:Supreme Court of North Dakota

Page 726

262 N.W.2d 726 (N.D. 1978)

AMOCO OIL COMPANY, Plaintiff and Appellee,


STATE HIGHWAY DEPARTMENT of the State of North Dakota,

Defendant and Appellant.

Civ. No. 9396.

Supreme Court of North Dakota.

February 16, 1978

Page 727

Peter Pantaleo, Sp. Asst. Atty. Gen., State Highway Department, Bismarck, for defendant and appellant.

Pringle & Herigstad, Minot, for plaintiff and appellee; argued by Herbert L. Meschke, Minot.

ERICKSTAD, Chief Justice.

In this case, the State Highway Department of the State of North Dakota, hereinafter known as the State, desirous of obtaining certain lots owned by Amoco Oil Company, hereinafter known as Amoco, which were adjacent to the Mouse River in the City of Minot, made an offer to purchase those lots. In conjunction with the offer, it deposited $73,000 with the Clerk of the Ward County District Court. Amoco, believing the amount insufficient, appealed to the district court where it waived a jury. After due hearing, the district court awarded Amoco an additional $53,300 together with interest, costs, disbursements, and attorneys' fees. Included in this judgment was the sum of $23,300 for Amoco's interest in the river bed in conjunction with its lots.

Prior to the State's taking of this property by eminent domain, the Mouse River was diverted by the Corps of Engineers and thereafter filled by the Corps of Engineers, so that at the time of the trial, the river was no longer in existence in this area.

The issues are: (1) whether or not Amoco owned the land which was created by the diversion of the Mouse River, and (2) if it owned the property, whether or not the district court had before it sufficient evidence upon which to base a finding that the riverfill property had a value of $23,300.

The property which was condemned was described as follows:

"Lots 3, 4, and 5 of Section 14, Township 155 North, of Range 83 West, described as follows: Beginning on a line bet. secs. 13 and 14 in said Twp. and Range at a point one hundred eighty-three (183) ft. N. from the SE Cor. of said sec. 14 and running thence north along the sec. line one hundred and twenty-five (125) ft., thence west at right angle to said sec. line 133 ft. to the left bank of the Mouse River thence down stream along said left bank to a point eighty-six (86) ft. west from the point of beginning, thence east and parallel with the north bdry. of tract 86 ft. to the point of beginning and containing three tenths (.3) of an acre, more or less and divided into lots 3, 4 and 5 as shown on plat. Lot 3 having 30 ft. frontage, lot 4 having 33 ft. frontage, and lot 5 having 62 ft. frontage. The E. and W. line i. e. the N. and S. bdry. lines of the several lots are parallel lines.

"Beginning at the SECTION CORNER common to SECTIONS 13, 14, 23 and 24, TOWNSHIP 155 NORTH of RANGE 83 WEST; thence running NORTH along the SECTION LINE between SECTIONS 13 and 14 of the said Township and range, a distance of one hundred eighty-three feet (183) to a point, thence running WEST at right angles to the last described line, a distance of eighty-six feet (86) to the east bank of the MOUSE RIVER; thence meandering SOUTHERLY along the said EAST BANK of the MOUSE RIVER to a point on the section line between SECTIONS 14 and 23 of the above described township and range ; thence running EAST along the section line between the said SECTIONS 14 and 23, a distance of one hundred three and five tenths feet (103.5) to the above described SECTION CORNER common to SECTIONS 13, 14, 23, and 24 the place of beginning of described land, has caused the same to be surveyed and platted and hereafter known as 'PLAT of OUTLOT

Page 728

NUMBER 9 of the SOUTHEAST 1/4 of SECTION 14, TOWNSHIP 155 NORTH, of RANGE 83 WEST of the CITY of MINOT, WARD COUNTY, NORTH DAKOTA', and hereby donates and dedicates to the public use forever all streets and avenues hereby shown." (Emphasis added.)

The State asserts that an owner of property bordered by a nonnavigable stream owns to the middle of the stream unless an intent to the contrary is manifested. It contends that in this instance an intent to the contrary is manifested by reference in the descriptions of the property to the term "bank". It argues that, had the reference merely been to the "river" rather than to the "bank", the land under the river to the middle of the stream would have been the property of the adjacent landowner, in this case Amoco; but as the word "bank" was used, that an intent to restrict the conveyance to the land not covered by the water was clearly intended.

The pertinent statute in this case reads:

"Except when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream, takes to the edge of the lake or stream at low watermark. All navigable rivers shall remain and be deemed public highways. In all cases when the opposite banks of any stream not navigable belong to different persons, the stream and the bed thereof shall become common to both." (Emphasis added.) § 47-01-15, N.D.C.C.

Although our court has apparently never decided whether the word "common" means that two opposite shore owners will own the bed as tenants in common, or whether each shall own a part of the bed, we conclude, now, as the United States Supreme Court has previously concluded in construing similar language of the Federal statute, that each riparian owner owns to the center of a nonnavigable stream, the "center" being synonymous with "thread". 1

The thread of a stream is defined by one authority as "the line midway between the opposite shore lines when the water is at its ordinary stage and neither swollen by freshets nor shrunken by droughts, no account being taken of main channel, current, or of line of greatest depth." 1 Patton on Titles § 140 (2d ed.).

Both parties to this lawsuit assume that the Mouse River is nonnavigable. In Bissel v. Olson, 26 N.D. 60 at 66, 143 N.W. 340 at 341 (1913), this court said:

"1. When a stream claimed to be navigable is not meandered nor declared navigable by the Legislature, it is presumed to be nonnavigable, and the burden is upon the party claiming it to be navigable to show that it is so in fact."

As there is no legislative declaration of navigability of the Mouse River, the presumption that it is nonnavigable applies. We will especially apply the presumption here where neither party contends to the contrary.

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