Nord v. Herrman

Decision Date28 April 1998
Docket NumberNo. 970161,970161
Citation1998 ND 91,577 N.W.2d 782
PartiesSidney NORD, Joyce Nord, Lyder Nord, and Gloria M. Nord, Plaintiffs and Appellees, v. David HERRMAN and Richard Herrman, Defendants and Appellants. and Arlen Peterson, Intervenor and Appellant. Civil
CourtNorth Dakota Supreme Court

Todd A. Schwarz, of Frith, Schwarz & Steffan, Devils Lake, for plaintiffs and appellees. Submitted on brief.

J. Thomas Traynor, Jr., of Traynor, Rutten & Traynor, Devils Lake, and Maren H. Halbach, of Haugland, Halbach & Halbach, Devils Lake, for defendants, intervenor, and appellants. Submitted on brief.

MARING, Justice.

¶1 David Herrman, Richard Herrman and Arlen Peterson appealed from a judgment quieting title to real property located on the shoreline of Devils Lake, and awarding Sidney, Joyce, Lyder, and Gloria M. Nord $2,500 in damages to the property and $500 in attorney fees. We hold the trial court's decision does not adequately meet the legal requirement of proportional allocation, and we reverse and remand for further proceedings.


¶2 In May 1982 the Nords bought from Ted and Jan Shelver a 1.69 acre tract of Ramsey County land located in Lot 4, Section 18, Township 153N, Range 63W. The property is located along the shoreline of Devils Lake's East Bay and was purchased by the Nords for a family retreat. The deed description used the meander line 1 as the waterside boundary. In July 1982 the Shelvers transferred to the Nords an additional .42 acres in Lot 4 to correct the description in the earlier conveyance. The same meander line was again used as the waterside boundary.

¶3 In June 1983 the Shelvers created and platted a subdivision called Old Townsite Estates in Lot 4. 2 Old Townsite Estates used the same meander line as the waterside boundary and was adjacent to the northwest side of the Nords' property.

¶4 In May and August 1987 the Herrmans acquired from the Shelvers and Cordell Dobson Lots 4 and 7 of Block 2 in Old Townsite Estates. Lot 7 is immediately adjacent to and northwest of the Nords' property. In April 1987 Arlen Peterson acquired from the Shelvers Lots 5 and 6 of Block 2 in Old Townsite Estates. The deed also granted to Peterson any riparian land 3 pertaining to the two lots.

¶5 The Nords improved their property above and below the meander line by removing rocks and old tree stumps and mowing a part of the property they regularly used for camping and family gatherings. The Nords also placed a small mobile home and campfire pit on the property, and fenced a part of the property on the boundary between the Herrmans' Lot 7 and their own property.

¶6 In the late 1980s the level of Devils Lake receded, exposing more land. The Herrmans and Peterson began to exercise control over the property immediately in front of their lake lots. The Nords, however, began using their property less because of disputes with the Herrmans over ownership of the now exposed property below the meander line. David Herrman and Peterson cut down trees which had formed a tree border between the Nord and Herrman properties, rolled up the boundary fence, and pushed large rocks from the front of their lots onto the Nord property.

¶7 Sidney Nord believed their property extended from the meander line to the water's edge following a line extending straight west along the north boundary of their property. Herrman and Peterson claimed their property interest extended down to the water because the Shelvers had told them they would have lake access off of their land to the water's edge. Herrman said he removed the trees because he believed they were on his property. On Memorial Day 1989, a confrontation occurred and the Nords told the Herrmans to stay off of their property. The Nords, however, allowed Peterson to use a 20 foot strip across their property so he would have access to the lake.

¶8 In September 1992 the Nords sued the Herrmans seeking a declaratory judgment that the property which they believed they owned below the meander line was theirs to enjoy free of any claims of the Herrmans. The Nords also sought damages for injury to their property caused by the Herrmans. The Herrmans asserted they owned the disputed property and counterclaimed for damages resulting from the Nords' acts of trespass. In September 1995 the trial court allowed Peterson to intervene in the lawsuit. Peterson's claims against the Nords essentially parroted those of the Herrmans. By the time the case was tried to the court without a jury, the waters of Devils Lake had risen, inundating a substantial portion of the disputed property.

¶9 The court issued its decision in January 1997, 16 months after trial. The court concluded this Court's decisions in Matter of Ownership of Bed of Devils Lake, 423 N.W.2d 141 (N.D.1988) and North Shore, Inc. v. Wakefield, 530 N.W.2d 297 (N.D.1995), governed the parties' property dispute. The court reasoned:

All of the deeds of the parties used the meander line as the boundary of the conveyance. The Peterson Quit Claim Deed is the only deed reserving (sic) any riparian land. It is common for the legal description in deeds affecting upland tracts around Devils Lake to use the meander line as boundary. Plaintiffs purchased property before the Defendants or Intervenor owned the lots in the subdivision.

From Matter of Ownership of Bed of Devils Lake, 423 N.W.2d 141 (N.D.1988), an upland owner owns riparian land to the ambulatory ordinary high watermark and has correlative interests vis-a-vis the State in the area between the ordinary high watermark and the ordinary low watermark except when the grant under which the land is held indicates a different intent. Thus, the water line when it is below the meander line becomes the land boundary. Thereafter, the rules of apportionment require allocation of any new shoreline in proportion to each owner's share of the original shoreline. North Shore v. Wakefield, 530 N.W.2d 297 (N.D.1995).

Based upon first ownership rights, and language in the deeds, the side line on the north side of the Nord property is extended westerly to the ambulatory ordinary high watermark which has been established at an elevation of 1426 feet above sea level. This extension is in conformity with the section line extension in the North Shore case. This ruling still preserves a limited riparian land interest as granted in the Peterson deed below the meander line, but first excludes the property awarded to the Plaintiff by the extension to the westerly line. (See attached map.) Below the 1426 elevation, the shoreline is apportioned in proportion to each owner's share of the shoreline at the 1426 elevation.

[Emphasis in original]. 4

¶10 The court awarded the Nords $2,500 damages for "fence improvements" and "trees" on their property, finding the damages were not as much as the Nords claimed because the "rising waters would have destroyed many trees and improvements as with all lake shore property around Devils Lake." The court awarded the Nords $500 in attorney fees and dismissed the Herrmans' and Peterson's counterclaims. The Herrmans and Peterson appealed.


¶11 The Nords assert the appeal should be dismissed because the case is moot. They claim because the lake's waters have risen, all of the boundary lines in question are below the meander line and are presently under water. The Nords argue no effective relief can be given at this time, and therefore, the boundary line issue is moot.

¶12 This Court cannot render advisory opinions. See Ashley Education Association v. Ashley Public School District, 556 N.W.2d 666, 668 (N.D.1996). The premise behind the prohibition of advisory opinions is there must be an actual controversy to be determined before a court can properly adjudicate. See Bies v. Obregon, 1997 ND 18, p 9, 558 N.W.2d 855. An actual controversy does not exist when an issue has been mooted by a lapse of time, or the occurrence of related events which make it impossible for a court to render effective relief. See State v. Dalman, 520 N.W.2d 860, 862 (N.D.1994). Nevertheless, an issue technically moot will not be considered moot if it is capable of repetition yet evading review, see State v. Liberty Nat'l Bank and Trust Co., 427 N.W.2d 307, 309 (N.D.), cert. denied, 488 U.S. 956, 109 S.Ct. 393, 102 L.Ed.2d 382 (1988), or if the controversy is one of great public interest and involves the power and authority of public officials. See Medical Arts Clinic v. Franciscan Initiatives, 531 N.W.2d 289, 294 (N.D.1995).

¶13 In North Shore, Inc. v. Wakefield, 542 N.W.2d 725 (N.D.1996), this Court confronted an argument similar to the Nords' assertion in this case. The appellant asserted the trial court erred in denying its motion for relief under N.D.R.Civ.P. 60(b)(vi) from paying the appellees damages for future loss of use of their property because it actually was the recent flooding of Devils Lake that prevented the property from being used. This Court rejected the argument:

It is not an exceptional circumstance for a body of water to rise, and there is evidence in the record indicating that Devils Lake has risen and fallen in the past. Riparian landowners are by necessity subject to losses and gains caused by the water; under wellestablished principles of law a riparian landowner " 'is without remedy for his loss in this way [and] cannot be held accountable for his gain.' " ... In August 1993, the trial court in this case found that the elevation of Devils Lake at the time of the original survey in 1883 was 1434.4 feet mean sea level, but in June 1993, the elevation of Devils Lake was more than ten feet lower, at 1424 feet mean sea level. That Devils Lake has flooded, and that this flooding may create losses and gains for adjacent landowners, is therefore neither an exceptional nor an unconscionable circumstance.

Wakefield, 542 N.W.2d at 728-729 (internal citations omitted). This Court concluded the flooding of Devils Lake was insufficient to relieve the...

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