Part I of III: Ownership Underlying Navigable and Non-Navigable Water Bodies
With nearly 265,000 square miles of water, the United States offers a diverse landscape. Inevitably, some of the largest bodies of water are located in targeted areas for oil and gas drilling. Texas, for example, contains over 7,300 square miles of water, while North Dakota has nearly 1,700 square miles of water, including the large Yellowstone and Missouri Rivers.1 Mineral title examination underlying riparian lands, those lands that lie contiguous with and underneath bodies of water, has its own set of rules. This article discusses navigability, the first step in the title analysis. We also discuss mineral ownership allocation underlying non-navigable waters.
The first step in riparian mineral title examination is determining whether a body of water is navigable or non-navigable. Navigable bodies of water are deemed navigable in fact “when they are used, or susceptible of being used, in their ordinary conditions, as highways for commerce, over which trade or travel may be conducted.” The Daniel Ball, 77 U.S. 557, 563 (1871). This test of whether a body of water could have been used as a commercial highway is applied to the body of water as it existed at the time of statehood. From a title perspective, we typically look to court decisions for guidance on whether a river is navigable or non-navigable. For example, some courts have considered whether traders and fur trappers used the river as a basis for navigability. This test is also applied on a segment-by-segment basis. Thus, your drilling unit may include a river with both navigable and non-navigable waters.
How does navigability affect mineral ownership? At common law, the original thirteen states owned title to navigable bodies of water by virtue of their sovereignty. Pollard v. Hagan, 44 U.S. 212 (1845). Before a state is admitted to the union, the United States holds navigable waters in trust for the new states. Upon admission, the new state obtains title to the beds of navigable bodies of water on “equal footing” with the original states. Pollard at 224. The states therefore own the minerals underlying navigable waters, up to their ordinary high watermarks.2 In bodies of water that are non-navigable, we analyze mineral title differently. If a conveyance of real property is made where a non-navigable river is the boundary line, the riparian owner takes to the center of the river. Hanlon v. Hobson, 52 P. 433, 435 (Colo. 1897). See also Hunzicker v. Kleeden, 17 P.2d 384, 385 (Okla. 1932).
The term “boundary line” can have different meanings, and it is important to define for purposes of allocating ownership. A deed that references a non-navigable river as the boundary line is referring to the ordinary high watermark, unless the instrument of grant indicates a different intent. A meander line, the line used in surveys to establish the curves of a body of water, is often mistaken as the boundary line. Even if a deed does describe the boundary using a meander line, the property is still conveyed to the ordinary high watermark. North Shore v. Wakefield, 530 N.W.2d 297, 300 (N.D. 1995). See also, Twin Lakes Reservoir & Canal Co. v. Bond, 157 Colo. 10, 14 (1965) (holding that in consideration of the attached survey and reference to acreage, the grant intended to limit the boundaries of the conveyance). Courts have defined the ordinary high watermark as “the point up to which the presence and action of the water is so contiguous as to destroy the value of the land for agricultural purposes by preventing the growth of … an ordinary agricultural crop.” In re ownership of Bed of Devil’s Lake, 423 N.W.2d 141, 145 (N.D. 1988). Because the ordinary high watermark is subject to change based on the Court’s analysis above, it is always important to obtain a professional survey of riparian lands within your drilling unit.
Part II of this series will look at the effect that changes in boundaries of water bodies may have on underlying mineral ownership.
Tjornehoj & Hack LLC, 2020