Norby v. Estate of Kuykendall

• Decision Date: 17 September 2015
• Docket Number: No. 20140380.,20140380.
• Parties: Rocky NORBY, Plaintiff, Appellant and Cross–Appellee v. ESTATE OF Doris W. KUYKENDALL, James R. Kuykendall individually and as guardian and conservator for Doris W. Kuykendall, Todd Hermanson, and Terry Sivertson, Defendants, Appellees and Cross–Appellants.
• Court: North Dakota Supreme Court

869 N.W.2d 405

Rocky NORBY, Plaintiff, Appellant and Cross–Appellee
v.
ESTATE OF Doris W. KUYKENDALL, James R. Kuykendall individually and as guardian and conservator for Doris W. Kuykendall, Todd Hermanson, and Terry Sivertson, Defendants, Appellees and Cross–Appellants.

No. 20140380.

Supreme Court of North Dakota.

Sept. 17, 2015.

869 N.W.2d 406

Ariston E. Johnson, Watford City, N.D., for plaintiff, appellant and cross-appellee.

Kevin J. Chapman, Williston, N.D., for defendants, appellees and cross-appellants.

Opinion

KAPSNER, Justice.

¶ 1] Rocky Norby appeals, and the Estate of Kuykendall and others (collectively “Kuykendalls”) cross-appeal, from a judgment quieting title to certain McKenzie County property in James Kuykendall and dismissing Norby's action to eject Kuykendall from the disputed property. Because Norby cannot claim title to accretions beyond the fixed boundary line set forth in his deed, we affirm the judgment.

I

[¶ 2] In 1912, Nels Olsen Walla received a patent from the United States for land in McKenzie County that abuts the Montana–North Dakota border. The Yellowstone River flows through the area, but the patent does not recite the river as a boundary of the property. In 1971, James Kuykendall purchased the land from his parents through a contract for deed. The deed does not describe the river as the boundary line of the property, but deeds in the chain of title state the conveyance was “less parts eroded [by or into] the Yellowstone River.” James Kuykendall received a warranty deed to the property in 1994, stating the grant was “[s]ubject to exceptions, reservations, easements and rights of way of record.”

[¶ 3] In 1984, Richard and Rocky Norby purchased a section of Richland County, Montana, property contiguous to the Kuykendall's property in North Dakota. The deed from which the Norbys received ownership of the property does not describe the Yellowstone River as the boundary line of the property and grants them property located only in Montana.

[¶ 4] From its formation to the present, the Yellowstone River has moved slowly east, eroding land from its east bank and accreting land to its west bank. At some point, a portion of the river crossed over from Montana into North Dakota and onto the land now owned by the Kuykendalls. This migration has left approximately 96 acres of accreted land between the North Dakota–Montana border and the west bank of the Yellowstone River. The Kuykendalls have paid the real estate taxes on the accreted land. In 2005, the Norbys executed a quit claim deed conveying the accreted land in North Dakota to Rocky Norby.

[¶ 5] Norby brought this action in 2012 to eject the Kuykendalls from the 96 acres of land between the North Dakota–Montana border and the west bank of the Yellowstone River and to have title to the disputed property quieted in him. Norby alleged he owned the land through the doctrine of riparian accretions. The Kuykendalls answered, claiming Norby does not own any land located in North Dakota and asserting the action was barred by the statute of limitations and laches. On cross-motions for summary judgment, the

[869 N.W.2d 407

district court dismissed the action and quieted title in the Kuykendalls, concluding “Norby does not have title to property in North Dakota, Norby cannot claim title to property by accretion in North Dakota, and the true owner of the North Dakota Property is the Kuykendalls.” The court did not address the Kuykendalls' alternative defenses of the statute of limitations and laches.

II

¶ 6] Norby argues the district court erred in quieting title to the 96 acres of land in the Kuykendalls because, as a matter of law, he is entitled to the disputed property under the law of riparian accretions.

[¶ 7] The standard for reviewing summary judgments is well established:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Hamilton v. Woll, 2012 ND 238, ¶ 9, 823 N.W.2d 754 (quoting Wenco v. EOG Res., Inc., 2012 ND 219, ¶ 8, 822 N.W.2d 701 ).

[¶ 8] Unlike the Red River, which forms the boundary between North Dakota and Minnesota, the boundary between North Dakota and Montana is fixed at “the twenty-seventh meridian of longitude west from Washington.” N.D. Const. art. XI, § 1. The law on riparian accretions is found in N.D.C.C. § 47–06–05, which provides:

Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.

Subject to exceptions not pertinent here, “[t]his statute ‘is essentially a restatement of the well-established common law rule governing riparian rights.’ ” J.P. Furlong Enters., Inc. v. Sun Expl. and Prod. Co., 423 N.W.2d 130, 133 (N.D.1988) (quoting Hogue v. Bourgois, 71 N.W.2d 47, 53 (N.D.1955) ). The common law doctrines of “[a]ccretion, dereliction (or reliction), erosion and avulsion” apply “[w]here title to real property describes a boundary line as a body of water.” 9 Richard R. Powell, Powell on Real Property § 66.01[1] (2015). See also State ex rel. Sprynczynatyk v. Mills, 1999 ND 75, ¶ 5, 592 N.W.2d 591 (“ ‘Where a water line is the boundary line of a given lot, that line, no matter how it shifts, remains the boundary.’ ” (internal citation omitted)).

[¶ 9] Accordingly, it appears well settled that “ ‘when the boundary is fixed by the deed at a specified line without

[869 N.W.2d 408

reference to the water, the grantee cannot claim accretions beyond such line.” Maunalua Bay Beach Ohana 28 v. State, 122 Hawai‘i 34, 222 P.3d 441, 444 (App.2009) (quoting 4 Herbert Thorndike Tiffany, The Law of Real Property § 1220, at 1075 (3rd ed.1975)). See also Van Deventer v. Lott, 180 F. 378, 382 (2nd Cir.1910) ( “[I]t has never been held that the owner of property, a portion of which has been washed away by the sea, has title to land which has formed over a half a mile distant on the other side of a wide, navigable channel at a place to which his title never extended.”); Greenfield v. Powell, 218 Ala. 397, 118 So. 556, 558 (1928) (“Lands on one side of a stream within a given subdivision cannot by accretion ever pass the outside boundary limited in the deed.”); Perry v. Sadler, 76 Ark. 43, 88 S.W. 832, 833 (1905) (“This tract was not described by name or number ... thereby carrying the boundary to the shifting water line, but this boundary was fixed, and the acreage determined by the contract and deed.”); State v. Esselman, 179 S.W.2d 749, 751 (Mo.Ct.App.1944) (“It thus appears that to give the owner of a tract of land the right...