Part III of III: The Effect of Avulsion on Riparian Mineral Ownership
Unlike the gradual processes of accretion, reliction, and erosion, discussed in the preceding post for this series, avulsion is a “sudden inundation or sweeping away of land resulting from a sudden change in the course of a waterbody.” Eaton v. Francis, 484 P.2d 128, 131 (Colo. App. 1971). Avulsion results from both man-made and natural events. For example, the government may divert a river’s course for agricultural purposes, creating a “new” channel covering lands that were not previously riparian. A flood may also create avulsion, resulting in an entirely different landscape as homes, roads, and agricultural developments are completely wiped out. In this final part of our series on riparian land title, we examine how avulsion events impact mineral title.
Avulsion can result in several distinct types of changes to the landscape, with each result having a different effect on property ownership. In North Dakota, the statutory scheme deals with the multiple types of avulsion. First, sudden changes to the banks are addressed:
If a river or stream … carries away by sudden violence a considerable and distinguishable part of a bank and bears it to the opposite bank or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof.” N.D.C.C. § 47-06-06.
The statute above clearly lays out the title remedies if a situation occurs where the bank of a river is suddenly carried away and attached to another part of the bank. A more complex type of change occurs when the entire course of river is relocated. For example, let’s say a river previously ran through Sections 16 and 17, but because a governmental entity diverted the river, it now runs through Sections 20 and 21. An abandoned channel now lies in Sections 16 and 17. Who obtains title to that abandoned channel, and what recourse do landowners in Sections 20 and 21 have? A majority of states have adopted a provision derived from the Napoleonic Code. Unlike a majority of our legislation, this statute is not based on common law, but rather on French and Roman Civil Law. The North Dakota version of the statute states the following:
If a stream, navigable or non-navigable, forms a new course abandoning its ancient bed, the owners of the land newly occupied take by way of indemnity the ancient bed abandoned, each in proportion to the land of which the owner has been deprived. N.D.C.C. § 47-06-07.
In other words, the landowners of Sections 20 and 21 would now acquire title to the abandoned channel in Sections 16 and 17, in proportion to the lands they originally owned in Sections 20 and 21. Louisiana, Oklahoma, and South Dakota have also applied this doctrine of indemnification if avulsion occurs. See L.A. Civ. Code Ann. Art. 504 (West 1980); 60 Okl. St. § 340; S.D. Codified Laws Ann. § 43-17-11 (1983). Texas has applied a similar, but different approach to indemnifying owners. The Supreme Court of Texas has followed Mexican Civil Law and held that if an avulsion event occurs, the riparian owners are entitled to the abandoned channel in proportion to their frontage.
Finally, it is important to note that accretion, rather than avulsion, is presumed if a river changes course. If you suspect avulsion has occurred, you must obtain and record proof. This can often be found in surveys, land records, plats, or even quiet title decisions. Moreover, you should provide all aerial photos and related surveys to your attorney when conducting mineral title examination.
Through the course of this riparian title series, we have examined how navigability, the shift of water bodies due to accretion, reliction, and erosion, and avulsion events affect mineral title. Although not exhaustive, each discussion provides basic principles that should be considered when examining title in a drilling unit that encompasses riparian lands.
Tjornehoj & Hack LLC, 2020