Part II of III: How do changes in the boundaries of bodies of water affect mineral ownership?
As discussed in Part I, grantees of riparian land conveyances take to the center of the non-navigable river, while the state owns the minerals underlying navigable bodies of water up to their ordinary high watermarks. Over time, however, bodies of water shift their course. What effect do these changes have on underlying mineral ownership of riparian land? Below, we discuss the effects of accretion, reliction, and erosion upon mineral ownership. Before we begin, a brief definition of our terms is as follows. Accretion is the “deposit and addition of soil along the bank of a waterbody caused by gradual shift of the waterbody away from the accreting bank,” while reliction is “the gradual receding of water resulting in the gradual baring of previously submerged land.” Erosion occurs when the bank of a waterbody loses soil because of “the gradual encroachment of water into the eroding bank.” J.P. Furlong Enters. v. Sun Exploration & Prod. Co., 423 N.W.2d 130, 140 (N.D. 1988).
How do the above processes affect mineral title? Let’s hypothesize that originally, Landowner A owns Lots 1, 2, and 3, lying west and adjacent to the river. Landowner B owns Lots 4, 5, and 6, lying east and adjacent to the river. The river moves eastward overtime. In doing so, its movement leaves behind accreted lands, those lands to the west that were previously underwater but are now exposed. Likewise, the river completely subsumes Lots 4, 5, and 6 by the process of erosion. The majority rule states that title to accreted and relicted lands belongs to the adjacent riparian owner. See Eaton v. Francis, 484 P.2d 128, 131 (Colo. App. 1971). Conversely, title to the eroded land is lost. N.D.C.C. § 47-06-05. Here, Landowner A would now gain title to the accreted lands, while Landowner B would lose title to Lots 4, 5, and 6. The severity of these rules may be surprising, but Courts have stated that the rules are based on the equitable idea that a riparian landowner should be aware of the risks involved. If one owner is subject to the hazard of loss by erosion, the same owner may also have the opportunity to gain by accretion. J.P. Furlong Enterprises, Inc., 423 N.W.2d at 133.
Occasionally, lots that have been eroded away eventually re-surface as the river continues to shift. In our example above, imagine that the river continued its movement eastward so that portions of Lots 4, 5, and 6 eventually re-surfaced. In situations such as these, jurisdictions vary in their rules of ownership. Because the analysis varies from state-to-state, the landman or title attorney should consult case law within that jurisdiction.
Additionally, it is important to note that federal lands are also subject to the doctrines of accretion, reliction, and erosion. In the example above, if the United States owned Lots 4, 5, and 6, it would also lose its land by the hazard of erosion. If federal lands are leased, then “lost” to the river, the operator should ask that the lease be cancelled pursuant to 43 C.F.R. 3108.3(c). The Secretary of the Interior, rather than the BLM, has the authority to cancel the lease.
Finally, if there are multiple riparian owners whose lands lie adjacent to accreted lands, ownership of the accreted lands is divided on the basis of the rule of apportionment. Under this rule, ownership of the accreted lands is allocated in proportion to each owner’s share of the original shoreline, and a line is drawn from the owner’s respective points to the new shoreline. Nord v. Herrman, 577 N.W.2d 782, 786 (N.D. 1998); Gardner v. Green, 271 N.W. 775, 783 (N.D. 1937). While this rule is practical for a circular body of water, it would likely result in an inaccurate allocation if the body of water is irregular. At minimum, a survey should be conducted. For security of title, landowners that find themselves in this situation may want to execute a stipulation of interest and cross-conveyance that references a professional survey.
In our upcoming and final discussion in this series on riparian land title, we will examine the effects of avulsion on mineral title.
Tjornehoj & Hack LLC, 2020