Kim-Go v. J.P. Furlong Enterprises, Inc., KIM-G

• Decision Date: 05 September 1990
• Docket Number: KIM-G,No. 900002,H,900002
• Parties: K. Minerals, Inc., a North Dakota corporation, R.N. Erickson, Nora S. Erickson, Mildred Erickson, Alice Langsdorf, Ruth Bovee, Mary A. Olson, Gladys Monson, E.W. Erickson, James G. Erickson, Wayne Dobie, individually and as guardian for Steven Dobie and Joseph Dobie, Jr., William K. Erickson, and Steven Jay Erickson, Plaintiffs and Appellees, v. J.P. FURLONG ENTERPRISES, INC., a North Dakota corporation; Nantasket Petroleum Corporation, a Colorado corporation; David A. Papineau and Catherine Mary Papineau, Defendants and Appellants, Sun Exploration and Production Company, a corporation; State of North Dakota; Grace M. Oyloe; Orville Oyloe; Ladd Petroleum Corporation; a corporation; R.E. Puckett; and Bruce P. Alfson, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 694

460 N.W.2d 694

KIM-GO, H.K. Minerals, Inc., a North Dakota corporation R.N. Erickson, Nora S. Erickson, Mildred Erickson, Alice Langsdorf, Ruth Bovee, Mary A. Olson, Gladys Monson, E.W Erickson, James G. Erickson, Wayne Dobie, individually and as guardian for Steven Dobie and Joseph Dobie, Jr., William K. Erickson, and Steven Jay Erickson, Plaintiffs and Appellees, v. J.P. FURLONG ENTERPRISES, INC., a North Dakota corporation Nantasket Petroleum Corporation, a Colorado corporation; David A. Papineau and Catherine Mary Papineau Defendants and Appellants, Sun Exploration and Production Company, a corporation; State of North Dakota; Grace M. Oyloe; Orville Oyloe; Ladd Petroleum Corporation; a corporation; R.E. Puckett; and Bruce P. Alfson, Defendants.

Civ. No. 900002.

Supreme Court of North Dakota.

Sept. 5, 1990.

Winkjer, McKennett, Stenehjem, Murphy & Reierson, Williston, for plaintiffs and appellees; argued by Richard A. McKennett.

Owen L. Anderson (argued), Texas Tech University School of Law, Lubbock, Tex., and Fred C. Rathert (appearance), of Bjella, Neff, Rathert, Wahl & Eiken, P.C., Williston, N.D., for defendants and appellants.

LEVINE, Justice.

In J.P. Furlong Enterprises, Inc. v. Sun Exploration and Production Co., 423 N.W.2d 130 (N.D.1988) [Furlong I ], we held that Section 47-06-07, N.D.C.C., applies to determine ownership of oil and gas interests underlying an abandoned riverbed. This case presents the question whether, under Section 47-06-07, N.D.C.C. parties who lose separately owned tracts of land as a result of a river abandoning its old bed and forming a new bed acquire ownership of the old bed in severalty or on an undivided basis. The trial court decided that ownership was on an undivided basis. We reverse and remand for proceedings consistent with this opinion.

In 1957, the Missouri River followed an oxbow course through portions of Sections 3, 4, 9, 10, 11, 14, 15 and 16, in Township 152, Range 103, McKenzie County. The United States of America acquired land by eminent domain in Sections 14 and 15 in the neck of the oxbow and diverted the river through a trench in the neck of the oxbow, leaving a long oxbow of abandoned riverbed north of the new channel. The west end of the new riverbed is on land which was owned by the Papineaus, and the east end of the new riverbed is on land which was owned by the Ericksons. ¹ From 1982 to 1985, five producing oil and gas wells were drilled on tracts which included parts of the west end of the abandoned riverbed. No producing oil and gas wells have been drilled affecting the east end of the abandoned riverbed.

After our decision in Furlong I, the plaintiffs ² brought this quiet title action, seeking a determination that the parties who lost separately owned land under the new riverbed were entitled to an undivided interest in the abandoned riverbed in proportion to their former ownership of the new riverbed. The defendants answered, seeking ownership of the abandoned riverbed in severalty. Alternatively, the defendants counterclaimed for contribution for the value of work, labor, and materials expended in proving and preserving the plaintiffs' interest in the property in Furlong I.

The trial court granted partial summary judgment in favor of the plaintiffs, concluding that "in interpreting Section 47-06-07, N.D.C.C., and in applying principles of justice and equity ... the subject abandoned riverbed be awarded to Plaintiffs and Defendants in proportion to the acres that each lost under the new river channel and that the parties be awarded the land and minerals on an undivided basis in proportion to acres lost." The trial court severed the defendants' counterclaim and also entered a Rule 54(b) certification on the issue of whether ownership of the abandoned riverbed should be undivided or several. ³

Section 47-06-07, N.D.C.C., provides:

"Ancient stream bed taken by owners of new course as indemnity.--If a stream, navigable or not navigable, forms a new course abandoning its ancient bed, the owners of the land newly occupied take by way of indemnity the ancient bed abandoned, each in proportion to the land of which he has been deprived."

The defendants claim ownership of the abandoned riverbed in severalty because they say that result is intended by Section 47-06-07, N.D.C.C., and is consistent with analogous principles of riparian law and other well-settled principles of property law, as well as being good public policy. The plaintiffs respond that accretion principles and riparian land rights are not applicable and that the trial court correctly determined that they should be indemnified under "principles of justice and equity," with undivided ownership of the abandoned riverbed. We agree with the defendants' position.

The interpretation of a statute is a question of law, fully reviewable by this court. Ladish Malting Co. v. Stutsman County, Etc., 351 N.W.2d 712 (N.D.1984). The primary purpose of statutory construction is to ascertain the intent of the Legislature. E.g., County of Stutsman v. State Historical Society, 371 N.W.2d 321 (N.D.1985). The Legislature's intent initially must be sought from the language of a statute. Id. Unless words in a statute are defined in the code, they are to be given their plain, ordinary, and commonly understood meaning. Sections 1-02-02, 1-02-03, N.D.C.C.; County of Stutsman v. State Historical Society, supra. If the language of a statute is ambiguous or of doubtful meaning, extrinsic aids may be used to interpret the statute. Id.

Section 47-06-07, N.D.C.C., describes who owns an abandoned riverbed when a river abandons its ancient bed and forms a new course, i.e., the former owners of the new riverbed. It also provides that the new owners take the old riverbed "by way of indemnity ... in proportion to land" lost to the new riverbed. Section 22-02-01, N.D.C.C., defines "indemnity" as "a contract by which one engages to save another from a legal consequence of the conduct of one of the parties or of some other person." Webster's New World Dictionary, Second College Edition, defines "proportion" as the "comparative relation between parts, things or elements with respect to size, amount, degree." These definitions indicate that the intent of the statute is to compensate former owners of the new riverbed for loss by bestowing upon them ownership of the abandoned bed in a quantity proportionate to their former ownership. The purpose of that indemnity is to restore the parties to their former positions as closely as possible. However, these definitions do not clearly resolve whether the former owners of separate interests in the new riverbed take the abandoned riverbed in severalty or on an undivided basis. Section 47-06-07, N.D.C.C., is therefore ambiguous and of doubtful meaning in this respect, and we may look to extrinsic aids to ascertain the intent of the Legislature.

Extrinsic aids which may be used to determine legislative intent include the laws upon the same or similar subjects and the consequences of a particular construction. Section 1-02-39, N.D.C.C.

We have found no case from any jurisdiction which has created undivided interests in comparable circumstances. Instead, we note and rely on the general rule in real property law that favors divided interests over undivided interests. The preference for divided interests is demonstrated in cases involving the rights of riparian landowners and the consequences of accretion, erosion, avulsion, and reliction. ⁴ Those cases lead us to conclude that Section 47-06-07, N.D.C.C., authorizes ownership of the abandoned riverbed in severalty if former ownership of the land under the new bed was several.

In Amoco Oil Co. v. State Highway Dept., 262 N.W.2d 726, 728 (N.D.1978), we construed language of Section 47-01-15, N.D.C.C., ⁵ that says when the opposite banks of land adjacent to nonnavigable streams belong to different persons, the stream and bed "shall become common to both":

"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

* * * * * *

Although the language "common to both" rationally could have been construed to mean a tenancy in common, we nonetheless held that ownership of the riverbed was in severalty. Our holding illustrates a preference for divided interests.

Our decisions have recognized that a landowner with several ownership of land abutting a nonnavigable lake owns the bed of the lake in severalty. State v. Brace, 76 N.D. 314, 36 N.W.2d 330 (1949); Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042 (1916). Thus, in State v. Brace, supra, 36 N.W.2d at 334, we quoted with approval from Brignall v. Hannah, supra:

"In paragraph 6 of the syllabus the common law rule is stated thus, 'The owners of land abutting upon a meandered, nonnavigable lake own the lake bed in severalty, their respective titles extending to the center of the lake.' " [Emphasis added.]

So too, our decisions have consistently permitted landowners with several ownership of land abutting a lake or stream to take land bared by accretion in severalty. See, e.g., Jennings v. Shipp, 115 N.W.2d 12 (N.D.1962); Hogue v. Bourgois, 71 N.W.2d 47 (N.D.1955); Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622 (1921). These cases illustrate a preference for divided ownership of accretions where the prior ownership of the land abutting the lake or river was divided.

In Perry v. Erling, 132 N.W.2d 889 (N.D.1965), land, originally surveyed as riparian, was submerged by encroaching river erosion causing land, originally surveyed as non-riparian, to become riparian. The river subsequently shifted...