State ex rel. Sprynczynatyk v. Mills

• Decision Date: 27 October 1994
• Docket Number: No. 940089,940089
• Citation: 523 N.W.2d 537
• Parties: STATE of North Dakota ex rel. David SPRYNCZYNATYK, North Dakota State Engineer, Plaintiff and Appellee, v. William R. MILLS, Betty L. Mills, Dakotaville, Inc., a North Dakota Corporation, and River Woods West, Inc., a North Dakota Corporation, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 537

523 N.W.2d 537

STATE of North Dakota ex rel. David SPRYNCZYNATYK, North

Dakota State Engineer, Plaintiff and Appellee, v. William R. MILLS, Betty L. Mills, Dakotaville, Inc., a North

Dakota Corporation, and River Woods West, Inc., a

North Dakota Corporation, Defendants and

Appellants.

Civ. No. 940089.

Supreme Court of North Dakota.

Oct. 27, 1994.

Charles M. Carvell (argued), Asst. Atty. Gen., Bismarck, for plaintiff and appellee.

William R. Mills, pro se.

Sherry Mills Moore (no appearance), Foss & Moore, Bismarck, for defendants and appellants Betty L. Mills, Dakotaville, Inc., and River Woods West, Inc.

NEUMANN, Justice.

William R. Mills, Betty L. Mills, Dakotaville, Inc., and River Woods West, Inc. (Mills) appeal from a partial summary judgment in the State's declaratory judgment action to determine the parties' interests in certain land ¹ between the ordinary high watermark and the ordinary low watermark (the "shore zone") of the Missouri River. We reverse.

Mills owns the land above the ordinary high watermark of the shore zone. The State brought this declaratory judgment action against Mills, seeking a determination that the State's title to the shore zone extends to the ordinary high watermark. The State claimed that Perry v. Erling, 132 N.W.2d 889 (N.D.1965), did not adjudicate that Mills, or their predecessors, held title to the shore zone and did not bar the State from asserting title. The State also claimed that N.D.C.C. Sec. 47-01-15 did not grant Mills absolute title to the low watermark of the shore zone and that Mills' interest, if any, in the shore zone was limited to a surface estate which was subject to the State's title and the public's right of use.

Mills claimed ownership of the shore zone to the ordinary low watermark and raised several affirmative defenses, including adverse possession, several statutes of limitation, and the res judicata effect of Perry v. Erling. Mills also counterclaimed, seeking quiet title in the shore zone, just compensation for property taken, and treble damages under N.D.C.C. Ch. 12.1-06.1 (Racketeer Influenced and Corrupt Organizations).

The State moved for partial summary judgment on its claims that it held title to the ordinary high watermark and that Mills' affirmative defenses did not bar its action. The district court granted partial summary judgment for the State, holding

"Absolute ownership above high watermark is in the private fee owner, and ownership of the complete bed of the river [between the ordinary high watermark on each side] is in the state of North Dakota, subject to the private fee owner's riparian rights over the shore zone for access and for such other traditional riparian rights as may be found to exist. Primarily, the riparian owner's rights are that of access to the water, the right to build a pier to the water, the right to accretions and the right to make reasonable use of the water....

* * * * * * "The combination of the anti-gift provisions of the North Dakota State Constitution and the public trust doctrine clearly prohibit an interpretation of N.D.C.C. Sec. 47-01-15 which would create a grant of the shore zone from the State of North Dakota to the Defendant in this case. Just as the territorial legislature had no authority to grant away trust property held for the future state, neither does the state have the right to grant away its sovereign trust property to private individuals without consideration, and in derogation of its duty to the public to maintain such lands for the benefit of all citizens of the state.

"The Court therefore holds that N.D.C.C. Sec. 47-01-15 constitutes a rule of construction, and not a rule of property....

"It should be emphasized that the State of North Dakota does not own the shore zone in a proprietary capacity, but a sovereign one. In other words, the property is held for the benefit of all the people and for their use, including navigation, recreation, ecological and esthetic preservation, and other public purposes. The private land owner has the right to access the water through the shore zone adjacent to the high watermark and exercise such other riparian rights as are not in conflict with the rights of the public....

"The Court holds that the State of North Dakota holds title to the shore zone, subject to the riparian rights of the Defendant, who may exercise said riparian rights insofar as they do not conflict with the superior right of the State of North Dakota to hold and manage the shore zone for public purposes. The title of the Defendant Mills is absolute only to the ordinary high watermark, and in the shore zone, the Defendant Mills has only the riparian right of access to the water and such other riparian rights as do not conflict with the paramount right of the State. This declaration of rights is made in order to avoid holding N.D.C.C. Sec. 47-01-15 unconstitutional, and statutes should be so construed. See N.D.C.C. Sec. 1-02-38."

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

The primary issue in this case involves the interests of Mills and the State in the shore zone. Before outlining the parties' arguments, we generally describe the historical development of property interests in the beds of navigable waters. ²

Before North Dakota was admitted to the Union, the United States held the beds of navigable waters in the Dakota Territory from high watermark to high watermark in trust for the future state. Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981); Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977); J.P. Furlong Enterprises, Inc. v. Sun Exploration & Production Co., 423 N.W.2d 130 (N.D.1988). Upon admission to the Union, North Dakota was entitled to sovereign ownership of the beds of navigable waters from high watermark to high watermark under the equal footing doctrine. Oregon v. Corvallis Sand & Gravel Co., supra; Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1876); Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565 (1845). Upon entering the Union on equal footing with the established States, the "rights of riparian or littoral proprietors in the soil below high water mark of navigable waters [were] governed by the local laws." Shively v. Bowlby, 152 U.S. 1, 40, 14 S.Ct. 548, 563, 38 L.Ed. 331 (1894). See Montana v. United States, supra; Oregon v. Corvallis Sand & Gravel Co., supra; Barney v. Keokuk, supra; Shively v. Bowlby, supra; J.P. Furlong, supra. Under those principles, North Dakota could "resign to the riparian proprietor rights which properly belong to [it] in [its] sovereign capacity," and was free to allocate property interests in the beds of navigable waters below the ordinary high watermark. Barney v. Keokuk, supra, 94 U.S. at 338. See N.D.C.C. Sec. 47-01-14. However, North Dakota could not totally abdicate its interest to private parties because it held that interest, by virtue of its sovereignty, in trust for the public. Illinois Central Railroad v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892); United Plainsmen Ass'n v. North Dakota State Water Conservation Commission, 247 N.W.2d 457 (N.D.1976).

In this case, Mills asserts that, under N.D.C.C. Sec. 47-01-15, he owns the shore zone to the low watermark, subject only to a navigational servitude to the high watermark. The State asserts that under the equal footing and public trust doctrines, it owns the shore zone to the high watermark. The State argues that N.D.C.C. Sec. 47-01-15 does not grant riparian landowners title to the shore zone and that it only confirms that riparian landowners have riparian rights in the shore zone.

Section 47-01-15, N.D.C.C., provides:

"Banks and beds of streams--Boundary of ownership.--Except when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream, takes to the edge of the lake or stream at low watermark. All navigable rivers shall remain and be deemed public highways. In all cases when the opposite banks of any stream not navigable belong to different persons, the stream and the bed thereof shall become common to both."

This court has said that "the owner of lands riparian to a navigable stream owns title to the low water mark." Hogue v. Bourgois, 71 N.W.2d 47, 52 (N.D.1955), citing Gardner v. Green, 67 N.D. 268, 271 N.W. 775 (1937), and State v. Loy, 74 N.D. 182, 20 N.W.2d 668 (1945). However, those decisions did not interpret N.D.C.C. Sec. 47-01-15 in the context of the competing interests of the State and a riparian landowner in the shore zone. In J.P. Furlong Enterprises, Inc. v. Sun Exploration & Production Co., 423 N.W.2d at 132 n. 1, we explicitly observed that "[w]hether North Dakota has limited its title to the area below the low watermark has not been decided. See N.D.C.C. 47-01-15 and Note, 59 N.Dak.L.Rev. 211 (1983)." Any statements in our prior decisions that "the owner of lands riparian to a navigable stream owns title to the low water mark" are dicta. This case presents the issue of the competing interests of riparian landowners and the State in the shore zone.

Our duty is to ascertain the intent of the Legislature under our Constitution. E.g., County of Stutsman v. State Historical Society, 371 N.W.2d 321 (N.D.1985). The Legislature's intent must be sought initially from the language of the statute. Id. Unless words in a statute are defined in the code, they are construed according to their plain, ordinary, and commonly understood meaning. Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694 (N.D.1990); N.D.C.C. Secs. 1-02-02 and 1-02-03. Statutory provisions must be considered as a whole with each provision harmonized, if possible. Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994). Statutory provisions that are substantially the same as previously existing statutes are construed as continuations thereof. N.D.C.C....