Ownership of Bed of Devils Lake, Matter of

• Decision Date: 18 April 1988
• Docket Number: No. 870144,870144
• Citation: 423 N.W.2d 141
• Parties: In the Matter of the OWNERSHIP OF the BED OF DEVILS LAKE. Appeal of STATE of North Dakota and the Garrison Diversion Conservancy District. Civ.
• Court: North Dakota Supreme Court

Page 141

423 N.W.2d 141

In the Matter of the OWNERSHIP OF the BED OF DEVILS LAKE Appeal of STATE of North Dakota and the Garrison Diversion Conservancy District.

Civ. No. 870144.

Supreme Court of North Dakota.

April 18, 1988.

Murray G. Sagsveen (argued), Sp. Asst. Atty. Gen., & Michael G. Fiergola (argued), Sp. Asst. Atty. Gen., Bismarck, for appellants State of North Dakota & Garrison Diversion Conservancy Dist.

Traynor, Rutten & Traynor, Devils Lake, for appellee Group of Landowners; argued by Thomas E. Rutten.

Gerald R. Keating (argued), Minneapolis, Minn., for appellee Davis Family.

Sarah P. Robinson (argued), Land & Natural Resources Division, U.S. Dept. of Justice, Washington, D.C., amicus curiae.

Foughty, Christianson & White Eagle, Devils Lake, for appellees George W. & Diane Cox, Harley C. & Alice Raumin. No appearance.

GIERKE, Justice.

The State of North Dakota and the Garrison Diversion Conservancy District (hereinafter collectively referred to as the State) appealed from a district court judgment in a class action concerning ownership of the bed of Devils Lake below the meander line. We affirm.

After remand in Park District of the City of Devils Lake v. Garcia, 334 N.W.2d 824 (N.D.1983), several quiet title actions were consolidated and the case was certified as a class action to quiet title to the bed of Devils Lake below the meander line around Devils Lake in certain designated townships. The membership of the class was denominated as "All landowners above, but adjacent to, the meander line around Devils Lake and all landowners who claim an interest in the lakebed below the meander line." The United States of America, the Devils Lake Sioux Tribe, the plaintiffs in 101 Ranch v. United States [Civil No. A2-81-89 (D.N.D.) ], the State of North Dakota, and the Garrison Diversion Conservancy District were excluded from the class. The court's order provided that the following issues would be considered:

"a. Whether Devils Lake was navigable-in-fact at the time of statehood.

"b. Whether the ordinary high water mark for Devils Lake was (at the time of statehood), and continues to be, the meander line or whether the ordinary high water mark is ambulatory (i.e., moves with the fluctuating elevation of the lake). If ambulatory, where is the ordinary high water mark at this time?

"c. Whether any member of the class own, or have an interest in, lakebed below the meander line. If the members of the class have an interest in the lakebed, what is the nature of the interest?"

The trial court found that: (1) Devils Lake was navigable at statehood; (2) the meander line is an "extremely poor and inaccurate approximation of the ordinary high water mark" at statehood; (3) expert opinions "indicate that the ordinary high water mark of Devils Lake at statehood was approximately 1,426 feet above mean sea level;" (4) physical evidence indicates that the ordinary high water mark gradually and imperceptibly receded until approximately 1940 and has since then gradually and imperceptibly risen; and (5) "physical evidence indicates that the ordinary high water mark of Devils Lake is presently located once again at an elevation of approximately 1,426 feet above mean sea level."

A partial judgment was entered that provides, in part:

"I

"Upon being admitted to statehood the State of North Dakota acquired the bed of Devils Lake, the boundary of which was the ordinary high water mark.

"II

"From statehood until approximately 1940, the level of Devils Lake gradually and imperceptibly receded, and new ordinary high water marks were from time to time established at lower elevations. As new ordinary high water marks were established, the bed of Devils Lake diminished in size, and therefore so did the area owned and controlled by the State of North Dakota.

"III

"By legislative act now codified as section 47-01-15 of the North Dakota Century Code, the State of North Dakota granted to riparian and littoral landowners ownership rights below the ordinary high water mark, down to the low water mark; the full extent and nature of those rights as balanced against public rights, if any, extending up to the ordinary high water mark, has yet to be determined in this state and is not at issue in this lawsuit.

"IV

"At any given time the area comprising the bed of Devils Lake which is owned and controlled by the State of North Dakota and its grantees is bounded and defined by the ordinary high water mark as it exists at that time, save and except for the effect of section 47-01-15, NDCC, to the extent that said section grants riparian and littoral owners rights down to the low water mark as it exists at that time."

The trial court issued a Rule 54(b), N.D.R.Civ.P., certification to allow an immediate appeal.

The State contends that it took title to the bed of Devils Lake at statehood to the ordinary high water mark as represented by the meander line established by governmental surveys and that it retains title to all land up to the meander line despite recession of the waters of Devils Lake. The private landowners, on the other hand contend that they own the land exposed by the recession of the waters of Devils Lake under the doctrine of reliction, ¹ which gives them title to the current ordinary high water mark.

Although the State has raised a number of issues on appeal, we deem it necessary to address only its contention that the meander line was the ordinary high water mark of Devils Lake at statehood and remains so today because the doctrine of reliction is inapplicable to Devils Lake. The other issues relate either to findings of fact that are not clearly erroneous or to matters not decided by the trial court and therefore not ripe for review.

Initially, we note that a water line, rather than a meander line, ordinarily forms the boundary of a tract of land abutting a navigable body of water. See, e.g., Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W.2d 488 (1949); State v. Brace, 76 N.D. 314, 36 N.W.2d 330 (1949); Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509 (1937); Gardner v. Green, 67 N.D. 268, 271 N.W. 775 (1937); Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042 (1916); Heald v. Yumisko, 7 N.D. 422, 75 N.W. 806 (1898); R. Beck, Boundary Litigation and Legislation in North Dakota, 41 N.D.L.Rev. 424 (1965); H. Ruemmele, Origin of Surveys in North Dakota, 24 Bar Briefs 102 (1948).

The State observed in its brief that "[t]he trial court, in its conclusions, adopts an 'ambulatory' OHWM ² for Devils Lake and applies the doctrine of reliction so that the OHWM follows the fluctuating elevation of Devils Lake." Relying on Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); and Sec. 61-15-01, N.D.C.C., the State argues:

"This novel concept is contrary to the decisions of the Supreme Court that 'state title is not subject to defeasance,' 'that the title thus acquired by the State is absolute so far as any federal principle of land titles is concerned' (i.e., that 'federal common law' does not apply), that 'conveyance by the United States of land riparian to a navigable river carries no interest in the riverbed,' and that the OHWM is not the same as the low water mark." (Footnotes omitted.)

The concept of an ambulatory ordinary high water mark forming the boundary of land along a navigable body of water as an incident of the doctrine of reliction is not contrary to the cited decisions of the United States Supreme Court. Insofar as they are relevant to the issues involved here, those decisions recognized that a state's title to land underlying a navigable body of water "vests absolutely as of the time of its admission and is not subject to later defeasance by operation of any doctrine of federal common law" ( Corvallis, supra, 429 U.S. at 371-372, 97 S.Ct. at 587, 50 L.Ed.2d at 558); that such title is "absolute so far as any federal principle of land titles is concerned" ( Corvallis, supra, 429 U.S. at 375, 97 S.Ct. at 589, 50 L.Ed.2d at 560); that "[t]he title and rights of riparian or littoral proprietors in the soil below [the] high-water mark, therefore, are governed by the laws of the several states" [Corvallis, supra, 429 U.S.at 376, 97 S.Ct. at 589, 50 L.Ed.2d at 561, quoting Shively v. Bowlby, 152 U.S. 1, 57-58, 14 S.Ct. 548, 569, 38 L.Ed. 331, 352 (1894) ]; and that "conveyance by the United States of land riparian to a navigable river carries no interest in the riverbed.... After a State enters the Union, title to the land [under navigable waters] is governed by state law." (Montana v. United States, supra 450 U.S. at 551, 101 S.Ct. at 1251, 67 L.Ed.2d at 501).

The concept of an ambulatory ordinary high water mark forming the boundary of land along a navigable body of water as an incident of the doctrine of reliction is not novel in this state. This court has recognized the movement of water marks forming boundaries. See, e.g., Oberly v. Carpenter, supra, where this court held in Syllabus p 5:

"Where a water line is the boundary line of a given lot, that line, no matter how it shifts, remains the boundary, and a deed describing the lot by number or name conveys the land up to such shifting line exactly as it does up to a fixed side line and conveys all accretions thereto." (Emphasis added.)

See also Jennings v. Shipp, 115 N.W.2d 12, 13 (N.D.1962) ("The Missouri River ... has characteristically been known to undulate in varying degrees, thereby causing either accretion or reliction of property bounded by the river."); Hogue v. Bourgois, 71 N.W.2d 47, 52 (N.D.1955) ("The title of the State of North Dakota to lands below low water mark of a navigable stream is coextensive with the bed of the stream as it may exist from time to time."). (Emphasis added.)

Section 47-06-05, N.D.C.C., provides:

"47-06-05. Riparian accretions.--Where from natural causes land forms by imperceptible degrees...