Amoco Oil Co. v. State Highway Dept.
Decision Date | 16 February 1978 |
Docket Number | No. 9396,9396 |
Citation | 262 N.W.2d 726 |
Parties | AMOCO OIL COMPANY, Plaintiff and Appellee, v. STATE HIGHWAY DEPARTMENT of the State of North Dakota, Defendant and Appellant. Civ. |
Court | North Dakota Supreme Court |
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.
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:
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:
(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:
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.
To support its contention that the use of the term "bank" limited the property, the State relies upon citations including 1 Patton on Titles, § 132 Water Boundaries Nonnavigable Rivers and Streams, p. 345; 6 Powell on Real Property, P 891 Description Boundary a monument having width, pp. 219-221 (1970); St. P. & P.R.R. Co. v. Schurmeier, 74 U.S. (7 Wall.) 272, 19 L.Ed. 74 (1868); and Hutton v. Yolo Orchard Co., 203 Cal. 724, 265 P. 933 (1928).
The State quotes extensively from Allen v. Weber, 80 Wis. 531, 50 N.W. 514 (1891), as follows:
We think it significant to note in Allen, that the court, in arriving at its conclusion relative to the meaning of the description which read to "low-water mark", considered other circumstances.
In that respect, the court commented:
Allen v. Weber, supra 50 N.W. at 515.
We think that Hutton, supra, is also distinguishable. In Hutton the reference in the various deeds was "to the Bank of Cache Creek". The court concluded that, in addition to the reference to the bank, there were other circumstances in the case which justified the conclusion that the descriptions were intended to be limited to the bank. In that connection, the court said:
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