State v. Leland 2026 ND 99

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2026 ND 99

State of North Dakota, ex rel. North Dakota State Engineer n/k/a Department of Water Resources, Plaintiff, Appellant, and Cross-Appellee v.

Virginia Leland, James R. Kuykendall, and Lori Norby, individually and as personal representative of the Estate of Rocky L. Norby, deceased, Defendants, Appellees, and Cross-Appellants and

Jarri Jo Callen, Tanjia Fay Melland, Mary Carol Melland, Rebecca Melland, Tracy Streitz,

Jan Hagen, Defendants and Appellees

and

Eric R. Larson, Karen M. Severtsen, Holly J. Weninger, George E. Walker, Douglas W. Pust, Kathy A. Pust, Max A. Hansen, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon the surface of the property described in the Complaint, Defendants

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1

Whiting Oil and Gas Corporation, Plaintiff and Appellee v.

Arlen A. Dean, Debbie Whittemore, Richard Dean, Kevin F. Filler, Sheila M. Filler, Eleanor "Carol" Adams, Darlene Dellabovie, Diana L. Basso, Ida D. Scafidi, Ella D. Chase, Anthony D. Dellabovie III, Lorlys Dean and Charlene Dean, as Trustees of the Dean Family Living Trust Agreement, dated February 7, 2002, f/b/o Lorlys Dean, a/k/a the Dean Family Trust, a/k/a the Dean

Family Living Trust, dated February 2, 2002, Angie Dean-Schlichting, Joseph Dean,

Stanley A. Dean, Linda K. Sullivan, a/k/a Linda K. Rudolph, Bernadine K. Miles,

James Rudolph, Loren Rudolph, Deana

Rudolph, Desmond D. Dean, John Dean,

Desiree Eddy, Lisa Hobdey, Timothy Dean, Dale Dean, Robert W. Dean and Lola L.

Dean, as Trustees of the Robert W. Dean and Lola L. Dean Revocable Living Trust, dated July 19, 1999, Miles Dean, William A.

Hover III, John Woods, Jr., Randall Johnson, Scott B. Muir, Murex Petroleum

Corporation, Robert D. Vaeth, Joy P. Vaeth, Michael L. Naughton, Douglas F. Eshelman, Martin E. Long, Randall M. Peete, Jeffrey R. Peete, Kathy K. Pierce, f/k/a Kathy K. Peete, Avalon North, LLC, Dakota West Energy, LLC, Nathan L. Andersohn, James Glik,

Dale Williston Minerals 2010, LP (f/k/a Ross Royalty Williston II, LP), Sanish Properties, LLC, Dorothy A. Peete, Stewart Geological, Inc., Northern Oil and Gas, Inc., James B.

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Fargher, Elizabeth Fargher, Celsius Energy, LLC, Greg and Nancy Vance Family Limited Partnership, Leonard M. Walla, Karole A. Walla, Larry Walla, Summit Royalty Company, M.P.K. Energy, LLC, Peter M. Dullea, Don M. Larsen, Black Bear Resources II, LLC, Black Bear Resources, LLLP, DW Energy Group, LLC, KRP Bakken I, LLC, Rivercrest Royalties II, LLC, Diversified Rox Minerals, LLC, BRD Royalty Holdings, LLC, RTM Minerals, LLC, Lowry Energy Partners, and all other persons unknown claiming any estate or interest in, or lien or encumbrance upon, the property described in the Complaint Defendants and

Susanne M. Walker, Richard K. Prideaux, Sherry Lee McMorris, Coy E. McMorris, Robin Lynn Hernandez, Kay Charles Atkinson, Amanda Atkinson Cerino, Michael T. Cerino, Jorjiann Benn, a/k/a Jorjiann Atkinson, Jarri Jo Callen, Tanjia Fay Melland, Mary Carol

Melland, Rebecca Melland, Tracey Streitz, and Jan Hagen, Defendants and Appellees

and

State of North Dakota, Defendant, Appellant, and Cross-Appellee and

Virginia Leland, and James Kuykendall and

Patricia Boe, as Trustees of the J&D

Kuykendall Family Mineral Trust UDT

October 3, 2011, Defendants, Appellees, and Cross-Appellants No. 20250328

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Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin A. Schmidt, Judge.

AFFIRMED IN PART AND REVERSED IN PART.

Opinion of the Court by Jensen, Justice. Zachary E. Pelham (argued), Special Assistant Attorney General, Matthew A. Sagsveen (appeared) and James J. Wald (appeared), Assistant Attorneys General, Bismarck, ND, for plaintiff, appellant, and cross-appellee State of North Dakota, ex rel. North Dakota State Engineer n/k/a Department of Water Resources, and defendant, appellant, and cross-appellee State of North Dakota. Paul J. Forster (argued), Shane A. Hanson (on brief), and Erik J. Edison (on brief), Bismarck, ND, for plaintiff and appellee Whiting Oil and Gas Corporation. Ariston E. Johnson, Watford City, ND, for defendant, appellee, and cross- appellant Lori Norby, individually and as personal representative of the Estate of Rocky L. Norby, deceased.

Kevin J. Chapman, Williston, ND, for defendants, appellees, and cross- appellants Virginia Leland and James R. Kuykendall; defendants and appellees Jarri Jo Callen, Tanjia Fay Melland, Mary Carol Melland, Rebecca Melland, Tracy Streitz, and Jan Hagen; defendants and appellees Susanne M. Walker, Richard K. Prideaux, Sherry Lee McMorris, Coy E. McMorris, Robin Lynn Hernandez, Kay Charles Atkinson, Amanda Atkinson Cerino, Michael T. Cerino, Jorjiann Benn, a/k/a Jorjiann Atkinson, Jarri Jo Callen, Tanjia Fay Melland, Mary Carol Melland, Rebecca Melland, Tracey Streitz, and Jan Hagen; and defendants, appellees, and cross-appellants Virginia Leland, and James Kuykendall and Patricia Boe, as Trustees of the J&D Kuykendall Family Mineral Trust UDT October 3, 2011.

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1

State v. Leland No. 20250328 Jensen, Justice.

[¶1] The State appeals from a judgment deciding ownership of surface and mineral interests near the Yellowstone River in McKenzie County. Lori Norby and the Kuykendall Group cross appeal. We affirm the portion of the judgment declaring the State does not own the "North Island" and reverse the portion of the judgment declaring the State does not own the "West Bank."

I

[¶2] In 2015, Whiting Oil and Gas Corporation, a well operator, filed an interpleader action to determine ownership of oil and gas interests in McKenzie County. See Whiting v. Dean, Case No. 27-2016-CV-00040. In 2019, the State initiated a quiet title action to adjudicate ownership interests in the same lands, including the surface. See State v. Leland, Case No. 27-2019-CV-00312. The cases were consolidated and State v. Leland was designated the lead case. [¶3] The disputed interests are along the Yellowstone River near the North Dakota-Montana border. The property is legally described as:

Township 150 North, Range 104 West

Section 30: All, consisting of Lots 1, 2, 3, 4, E1/2 E1/2 and the bed of the Yellowstone River

Section 31: All, consisting of Lots 1, 2, 3, 4, and the bed of the Yellowstone River

The parties stipulated to the location of the ordinary high water mark of the Yellowstone River. They also stipulated to an exhibit the district court found was

"the most current representation" of the area, which is shown below.

| : f

4 STATE V. LELAND

'| 27-2019-CV-00312 \ WHITING OIL AND GAS CORP.

V. DEAN: 24-2016-CV-00040 i cS ? TRIAL EXHIBIT

STATE 101

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Property Lot Lines ; Islands Below OHWM

OHWM

(X] Accreted Island Acreage [=] OHWM Acreage

Ki Section Lines |

3

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Aa eS of? 72021 Aga Pagho

State of North Dakota, ex rel. North Dakota State Engineer v. Leland, et al MW 9/16/22

27-2019-CV-312

Z2

6

3

The West Bank is comprised of land contained in the boxes labeled C, D, H, J, K, and the corner of L. It is shown in the above map with black hashmarks. The North Island is comprised of land in the boxes labeled A, B, E, F, G, and the corner of H. It is outlined in the above map with an orange line. [¶4] The district court granted a joint motion to bifurcate the case and try issues relating to boundary ownership first and issues related to associated mineral acreages second. The first trial lasted five days. After trial, the court entered an order deciding the Yellowstone River was navigable at statehood and declaring ownership of the disputed tracts. The court found, "unless there is a deed or other conveyance impacting ownership interests as determined in Phase II," the State owned the West Bank because it formed "as an in channel island and over time, established vegetation, continued to grow, and attached to the river's West bank." The court decided the State did not own the North Island, finding the island did not develop within the bed of the river and that the evidence

"supports a finding an avulsion occurred" separating the land from the shore. The court also rejected the Defendants' assertion that the State's claims are barred by the doctrine of laches or a statute of limitations. [¶5] Norby filed a motion for summary judgment. She claimed ownership of interests in the West Bank based on a chain of title extending from a special warranty deed issued by the State Treasurer in 1950. The deed conveyed lots one, two, and three in Section 31, "less parts eroded by the Yellowstone River." It is undisputed the Yellowstone River historically meandered in a northerly direction along the western boundary of Section 31, which is the line forming the border between North Dakota and Montana. Norby argued the lots extended across the river to the state border. The State asserted the river formed the boundary of the lots, and consequently the deed did not convey interests on the west side of the river.

[¶6] The district court granted Norby summary judgment. The court decided the deed was not ambiguous and that the western boundary of the lots is the North Dakota-Montana border. The State filed a motion seeking reconsideration. The State claimed the deed language "less parts eroded by the Yellowstone River" created an ambiguity. The State provided Bank of North Dakota records

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it claimed resolved the ambiguity and established the Yellowstone River formed the boundary of the lots. The court issued an order declining to reconsider its summary judgment decision.

[¶7] The case proceeded to a second trial, which lasted one day and focused primarily on issues relating to mineral interest ownership. After the second trial, the district court entered judgment declaring the disputed tract boundaries and ownership interests in both the surface and minerals. The mineral ownership interests were based on acreage calculations prepared by Whiting that the parties stipulated to govern the dispute. The State appeals. Norby and the Kuykendall Group cross appeal.

II

[¶8] Our standard for reviewing an appeal from a judgment entered after a bench trial is well established:

In an appeal from a bench trial, the district court's findings of fact are reviewed under the clearly erroneous standard of review, and its conclusions of law are fully reviewable. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all of the evidence, this Court is convinced a mistake has been made. In a bench trial, the district court is the determiner of credibility issues and we will not second-guess the district court on its credibility determinations. Findings of the trial court are presumptively correct. Gimbel v. Magrum, 2020 ND 181, ¶ 5, 947 N.W.2d 891 (cleaned up).

III

[¶9] The parties do not challenge the district court's determination that the Yellowstone River was navigable at statehood. Each side asserts the court erred in some respect when it decided ownership of the North Island and the West Bank. We address each property in turn but first set out general principles applicable to ownership of navigable streams and adjacent riparian lands.

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[¶10] North Dakota entered the Union at statehood on an equal footing with the other states and took absolute title to the beds of navigable waters within its borders. Reep v. State, 2013 ND 253, ¶ 14, 841 N.W.2d 664; see also Montana v. United States, 450 U.S. 544, 551 (1981) ("After a State enters the Union, title to the land is governed by State law."); N.D. Const. art. XI, § 3 ("All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes."); N.D.C.C. § 47-01-15 ("All navigable rivers shall remain and be deemed public highways."); N.D.C.C. § 61- 33-01(3) (defining "navigable waters"). The State holds its sovereign interests in navigable waters in trust for the public. Sorum v. State, 2020 ND 175, ¶ 43, 947 N.W.2d 382. "[F]ostering the public's right of navigation is traditionally the most important feature of the public trust doctrine." Id. Other interests served by the public trust doctrine include "bathing, swimming, recreation and fishing, as well as irrigation, industrial and other water supplies." Id.; see also State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 543-44 (N.D. 1994) (discussing

"correlative interests" between the State and riparian landowners "in the shore zone" of navigable waters).

[¶11] The State's sovereign interests extend up to the ordinary high watermark, which may change from time to time. State ex rel. Sprynczynatyk v. Mills, 1999 ND 75, ¶¶ 5-6, 592 N.W.2d 591. "The ordinary high watermark is ambulatory, and is not determined as of a fixed date." Id. ¶ 5; see also N.D.C.C. § 61-33-01(4) (defining "ordinary high water mark"). "[H]ow the changing riverbed affects the State's title is controlled by state law . . . ." Sorum, 2020 ND 175, ¶ 42. Riparian principles apply when the boundary of a property is defined by a body of water. Norby v. Estate of Kuykendall, 2015 ND 232, ¶ 8, 869 N.W.2d 405. "Where a water line is the boundary line of a given lot, that line, no matter how it shifts, remains the boundary." Id. (quoting Sprynczynatyk, ¶ 5). "Riparian landowners are by necessity subject to losses and gains caused by the water; under well-established principles of law a riparian landowner is without remedy for his loss in this way and cannot be held accountable for his gain." North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 729 (N.D. 1996) (cleaned up).

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IV

[¶12] The State argues the district court erred when it found North Dakota does not own the North Island. The issue requires us to address three questions. First, is the court's finding that the North Island formed when an avulsive event changed the course of the river clearly erroneous? Second, did the court misapply the law by failing to presume the river changed its course due to accretion? And third, did the court overlook a law requiring the defendants to reclaim the North Island from the State? We address each of these questions in the following sections and conclude: the court's factual findings are supported by circumstantial evidence and not clearly erroneous; the court did not err by failing to apply the presumption advanced by the State; and the reclamation requirement the State relies on does not apply to the North Island.

A

[¶13] The State claims it owns the North Island because it was formed by gradual accretions deposited within the river channel. The State asserts the evidence does not support the district court's finding that the North Island was created by an avulsive change in course of the river. The State claims the court's finding that an avulsive event occurred is clearly erroneous. [¶14] Under N.D.C.C. ch. 47-06, ownership of an island is determined by the location where it is formed and the process that forms it. "Islands and accumulations of land formed in the beds of streams which are navigable belong to the state, if there is no title or prescription to the contrary." N.D.C.C. § 47-06-

08. When a stream is not navigable, islands formed in the bed of a stream belong to the owner of the shore closest to where the island formed. N.D.C.C. § 47-06-

09. Regardless of navigability, an island that is formed when a stream divides itself is owned by whoever owned the land before the division: "If a stream, navigable or not navigable, in forming itself a new arm divides itself and surrounds land belonging to the owner of the shore and thereby forms an island, the island belongs to such owner." N.D.C.C. § 47-06-10. [¶15] The provisions in N.D.C.C. ch. 47-06 address the consequences of hydrological processes, including accretion and avulsion. J.P. Furlong Enters., Inc.

7

v. Sun Expl. & Prod. Co., 423 N.W.2d 130, 132 (N.D. 1988). The terms "accretion"

and "avulsion" signify common law doctrines. Norby, 2015 ND 232, ¶ 8. Accretions are additions of alluvion (sand, sediment, or other deposits) to waterfront land . . . . In order for an addition to dry land to qualify as an accretion, it must have occurred gradually and imperceptibly—that is, so slowly that one could not see the change occurring, though over time the difference became apparent. When, on the other hand, there is a sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream, the change is called an avulsion. Stop the Beach Renourishment, Inc. v. Florida Dep't of Env't Prot., 560 U.S. 702, 708 (2010) (cleaned up); see also Norby, ¶ 12 (explaining "accretion" refers to gradual change); J.P. Furlong, at 133, n.4, 134 (explaining "avulsion" refers to sudden change).

[¶16] The doctrines of accretion and avulsion pertain to various provisions in N.D.C.C. ch. 47-06. J.P. Furlong, 423 N.W.2d at 134 (considering two statutes,

"both on avulsion"). For example, "a particular kind of avulsion results in a change of title when a stream 'forms a new course abandoning its ancient bed.'"

Id. (quoting N.D.C.C. § 47-06-07). Another kind of avulsion occurs when there is a "sweeping away of land resulting from a sudden change in the course of a waterbody." Kim-Go v. J.P. Furlong Enters., Inc., 460 N.W.2d 694, 696 n.4 (1990); see also N.D.C.C. § 47-06-06 (providing for ownership when a stream "carries away by sudden violence a . . . part of a bank"). Likewise, accretion may determine ownership of shoreland under N.D.C.C. § 47-06-05, see Norby, 2015 ND 232, ¶¶ 8-12, or it may implicate ownership of an island under N.D.C.C. § 47- 06-08, see Hogue v. Bourgois, 71 N.W.2d 47, 54 (N.D. 1955) (explaining "the accretions and relictions claimed by the plaintiffs accrued to the island and not to the mainland").

[¶17] In this case, the district court found two aerial photographs from 1939 and 1949 were the "most helpful evidence" relating to formation of the North Island. The Kuykendall Group reproduced these photographs in their brief, as shown

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below. [¶18] The Defendants' expert geologist opined these photographs demonstrated the North Island was created after an avulsive event resulted in the formation of a new river channel. He testified:

Q. And describe for the Judge what data and evidence that leads you to conclude that the north island formed as a result of an avulsion.

. . . .

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A. So basically, the literature describes an avulsion process as an event in which the waters from the river are forced onto the flood plain. And when that happens, it has to then first go onto the flood plain and find a new way back to the channel. This is the theory we've reviewed it for.

We have an avulsion process. It breaches the levy, it wanders around the flood plain, finds a way back, and slowly starts developing a new channel. That new channel then eventually becomes the main channel. And it is prone to happen particularly where we're going from an area of harder more resistant rock to less resistant rock.

So we come over here, this is 1939 photo. And the green line we're looking at the 1949 bank taken from this photo here superimposed on top of the 1939 photo. The bank here is shown in blue. And somewhere between the 1939 and the 1949, something happened. It removed some 200 acres of farmland and pushed the east bank northeast by about 2,000 feet. And this is a very rapid— even for some of the processes we're seeing.

. . . .

[T]he presence of this land form here, in about the same position and about the same shape of the land that was removed, note here this little promontory where I have this little arrow here. Well, we still see it here in the shape of the island. It's evidence that this more likely than not was the remnant of what was left after the avulsion event.

[¶19] The district court acknowledged there was "a total absence of direct evidence regarding how the river changed its channel" to form the North Island. The court nonetheless found "evidence of how the river and land around the river appeared in 1939 and then one decade later supports a finding an avulsion occurred." The court explained the "North Island shape contained in section 30 in the 1949 photo is nearly identical to the farm land photographed in 1939." The court rejected the State's theory that the island formed in the bed of the river explaining: "The court does not have data to support a finding the land was

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completely eroded and then built back up again into nearly the same shape in ten short years." The court's findings, which are based on circumstantial evidence, are not entirely unsupported as the State claims. See Farmers Ins. Exch.

v. Schirado, 2006 ND 141, ¶ 12, 717 N.W.2d 576 (explaining claims may be established by circumstantial evidence).

[¶20] We conclude the district court's finding that the North Island was formed by the Yellowstone River surrounding farmland, and not by accretions deposited in the riverbed, is not clearly erroneous. When a stream divides itself and

"surrounds land belonging to the owner of the shore and thereby forms an island, the island belongs to such owner." N.D.C.C. § 47-06-10. The State does not claim it owned the shoreland from which the North Island was formed. Absent some other basis to support the State's claim, the court properly determined the State does not own the North Island. Having addressed the factual basis for the court's decision, we turn to the State's legal arguments.

B

[¶21] The State argues the district court erred as a matter of law because it failed to apply a presumption articulated in Woodland v. Woodland, 147 N.W.2d 590 (N.D. 1966). The Woodland Court was tasked with deciding which county court had jurisdiction over disputed land. Id. at 599. The answer depended upon whether the river that formed the boundary between counties changed its course by avulsion or accretion. See id. at 600 (explaining avulsive events do not change county boundaries). The Court noted there was "no evidence" that could

"indicate by what means the river changed its channel[.]" Id. Absent such evidence, the Court rejected the parties' stipulation that an avulsive event occurred. Id. The Court explained: "Generally there is a presumption that a change in a river's course is by accretion rather than by avulsion." Id. [¶22] The State reads Woodland to mean a presumption exists "against an avulsive event forming an island," and that "there is a presumption that the North Island formed due to an in-channel accretion." We disagree. The presumption in Woodland did not relate to how islands form, and it was not applied to determine ownership of riparian land. The presumption applied when

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there was "no evidence" to determine how "the river changed its channel[.]"

Woodland, 147 N.W.2d at 600. How the river changed its channel makes no difference here. The result would be the same even if the Yellowstone River changed its course and surrounded the North Island gradually. The only requirement in N.D.C.C. § 47-06-10 is that a stream, "in forming itself a new arm divides itself and surrounds land" belonging to the owner of the shore. The statute provides no other condition. This Court explained:

This statute contemplates a situation where a stream in high water, whether suddenly by avulsion, perhaps induced by an ice gorge in its channel, or gradually by intermittent action at flood stage, cuts a new or auxiliary channel around a portion of the mainland and leaves such portion intact as an island and as a recognizable segment of the mainland from which it was severed. Hogue, 71 N.W.2d at 55 (on petition for rehearing). The district court did not err by not accepting the State's argument that a presumption existed.

C

[¶23] The State argues that even if an avulsive event occurred, it owns the North Island under N.D.C.C. § 47-06-06 because the landowners did not reclaim their land. That law provides:

If a river or stream, navigable or not navigable, 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.

Id.

[¶24] This statute is not applicable to the North Island. It applies when land is carried away "to the opposite bank or to another part of the same bank," and it permits the land that was carried away to be reclaimed from "the owner of the land to which it has been united . . . ." N.D.C.C. § 47-06-06. In other words, the statute contemplates land being swept away from one bank and deposited onto

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another. The district court did not find, and the State has not identified evidence to suggest, that the North Island has been "united" with a riverbank—let alone a riverbank owned by the State. The landowners were not required to reclaim the North Island from the State under N.D.C.C. § 47-06-06 to maintain their ownership. We hold the court did not err when it decided the State does not own the North Island.

V

[¶25] The second issue is whether the district court erred when it decided the State does not own the West Bank. The issue requires us to address four questions. First, is the court's finding that the West Bank formed as the result of an island attaching to the shore clearly erroneous? Second, did a conveyance by the State include interests in the West Bank? Third, are the State's claims barred by the doctrine of laches? And fourth, are the State's claims barred by a statute of limitations? We address each question in the following sections and conclude:

the court's findings related to formation of the West Bank are not clearly erroneous; the State did not convey interests in the West Bank because the government lots it transferred did not extend across the river; the State's claim is not barred by laches; and the statute of limitations argument is forfeited because it was not raised in the district court.

A

[¶26] Norby claims the West Bank formed as a result of accretions deposited on the riverbank. She argues the district court incorrectly decided the State originally owned the West Bank because the court's finding—that the West Bank formed in the river channel before attaching to the shore—is clearly erroneous. [¶27] Under N.D.C.C. § 47-06-05, land formed by accretions on a bank are owned by the owner of the bank:

Where from natural causes land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right of way over the bank.

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"The foregoing statute is essentially a restatement of the well-established common law rule governing riparian rights." Hogue, 71 N.W.2d at 53. "As the riparian owner acquires title to additions to his riparian lands by accretion and reliction, he likewise loses title to such portions as are eroded and washed away by a navigable stream." Id. at 52; see also North Shore, 542 N.W.2d at 729 (explaining riparian owners are without remedy for losses and cannot be held accountable for gains).

[¶28] The rule that the owner of a bank owns accretions deposited upon it applies to the banks of islands as well as shorelines. The owner of an island is entitled to land added thereto by accretion to the same extent as the owner of land on the shore of the mainland. If the accretion commences with the shore of the island and afterward extends to the mainland, or any distance short thereof, all the accretion belongs to the owner of the island; but, if accretions to the island and to the mainland eventually meet, the owner of each owns the accretions to the line of contact.

Hogue, 71 N.W.2d at 54 (quoting 65 C.J.S. Navigable Waters § 82(f), which is now located at 65 C.J.S. Navigable Waters § 93 (April 2026 update)). [¶29] The district court found the West Bank formed "as an in channel island and over time, established vegetation, continued to grow, and attached to the river's West bank." The court relied on aerial photography, lidar imagery, and the State experts' opinions, which were based in part on the age of trees as determined by analysis of trunk core samples.

[¶30] Norby challenges the district court's credibility determination. She claims the court's findings rest "entirely on expert testimony that falls short of scientific rigor and is clearly erroneous." However, we defer to the court's credibility determinations and resolve contradictory testimony in favor of affirmance. Kershaw v. Finnson, 2022 ND 165, ¶ 16, 980 N.W.2d 40; see also Byron v. Gerring Indus., Inc., 328 N.W.2d 819, 822 (N.D. 1982) ("The rule that questions of credibility are for the trial court also applies to the evaluation of expert witness testimony."). Although conflicting expert testimony exists, the court's findings concerning the formation of the West Bank are not clearly erroneous.

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B

[¶31] The State argues the district court erred by deciding the State no longer owns the West Bank because it conveyed lots adjacent to the Yellowstone River by deed. The State asserts the court incorrectly determined interests conveyed by the deed extended west to the North Dakota-Montana border, which is a fixed meridian line. See N.D. Const. art. XI, § 1. The State claims the western boundary of the lots was the Yellowstone River and not the border. [¶32] The line forming the western boundary of the lots determines whether riparian principles apply. "The common law doctrines of accretion, dereliction (or reliction), erosion and avulsion apply where title to real property describes a boundary line as a body of water." Norby, 2015 ND 232, ¶ 8 (cleaned up). When the boundary is described "without reference to the water," these riparian doctrines do not apply. Id. ¶ 9 (quoting Maunalua Bay Beach Ohana 28 v. State, 222 P.3d 441, 444 (Haw. Ct. App. 2009)). "The equitable basis of the rule on riparian accretions would crumble if it were applied to situations where property is conveyed with fixed boundaries not defined by a body of water." Id. ¶ 10.

1

[¶33] The deed in question was issued by the State Treasurer in 1950. It described the following property:

Lots One (1), Two (2) and Three (3) of Section Thirty-one (31), Northwest Quarter of the Southwest Quarter (NW1/4SW 1/4) of Section Thirty-two (32), Township One Hundred Fifty (150) North, of Range One Hundred Four (104) West, less parts eroded by the Yellowstone River

The deed contains no other description of the property. [¶34] The lots were originally conveyed by the federal government via a patent recorded in 1916. See generally Bovey-Shute Lumber Co. v. Erickson, 170 N.W. 628, 630 (N.D. 1918) (explaining a public land patent is an instrument passing legal title from the government). The patent states the lots contained approximately 185 acres "according to the Official Plat of the Survey of the said Land, returned

15

to the GENERAL LAND OFFICE by the Surveyor-General." The record contains a Government Land Office survey from 1901. This survey, dated more than a decade prior, is likely an earlier version of the one referenced in the patent. However, there is no dispute the 1901 survey depicts the lots in relation to the river. The survey is reproduced below.

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[¶35] It is undisputed that the Yellowstone River has moved eastward, entirely eroding the land that once formed the lots depicted in the survey. The West Bank is comprised of land now located between the Yellowstone River and the state line. Movement of the Yellowstone River in relation to the lots is demonstrated by comparing the 1901 survey to satellite imagery from 2010 as Whiting did in its brief, which is reproduced below.

[The remainder of this page was intentionally left blank.]

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2

[¶36] The effect of the deed's reference to the "lots" in Section 31 is not apparent absent an understanding of the government land survey system that created them. Congress directed surveyors to divide western lands based on a grid system. See generally St. Paul & Pac. R.R. Co. v. Schurmeier, 74 U.S. 272, 285 (1868). Government lots account for irregularity in the system:

Government lots are portions of square-mile sections surveyed and established by the United States Government because they do not conform to the ordinary standards for quarter-quarter sections. Such fractional sections often are remainders or oversized areas resulting from laying a flat grid system upon a round planet. In other cases they result where section lines lie near bodies of water. There, fractional lots are created so boundaries lie along and follow the curves of the shoreline, thus providing as many lots as practical with substantial water frontage.

Currie v. Walkinshaw, 746 P.2d 1045, 1049 (Idaho 1987) (citations omitted); see also Lopez v. Smith, 145 So.2d 509, 516 (Fla. Dist. Ct. App. 1962) (explaining fractional sections may be created due to a body of water).

[¶37] The boundaries of government lots are demarcated on the official government survey. "In government surveys of public lands, at least in this and other western states, fractional divisions made so by the water are designated and sold by the numbers attached thereto, and reference is always had to the notes and maps of the survey." Gardner v. Green, 271 N.W. 775, 781 (N.D. 1937). Surveys of lands along waterways contain meander lines "defining the sinuosities of the banks of a stream and as the means of ascertaining the quantity of the land in the fraction subject to sale, and which is to be paid for by the purchaser." Id. (quoting City of Peoria v. Cent. Nat'l Bank, 79 N.E. 296, 298 (Ill. 1906)). The meander line is a "demonstration" that the watercourse is the boundary. Id. at 779. "This court has recognized and applied the rule that in this state the body of the water and not the meander line is the true boundary of public lands conveyed by patent of the United States government." Id. at 780.

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[¶38] Ownership of a government lot adjacent to navigable water does not extend beyond the water. "It is well settled that the boundary of a fractional lot which has been granted by the United States and which borders upon a navigable river is the bank of the river and not the thread of the stream." State v. Loy, 20 N.W.2d 668, 670 (N.D. 1945).

[W]hen a fractional subdivision of public land, according to the government survey, is bounded on one side by a body of water and on the other sides by lines of the government subdivision lines, the body of water and not the meander line is the boundary; and the government subdivision lines will be extended until they reach the water . . . .

Gardner, 271 N.W. at 781-82. Put another way:

Where a water line is the boundary 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 . . . .

Oberly v. Carpenter, 274 N.W. 509, 513 (N.D. 1937) (quoting Jefferis v. E. Omaha Land Co., 134 U.S. 178, 188 (1890)). Ownership extends only to "the edge of the lake or stream at low water mark." N.D.C.C. § 47-01-15; see also Schurmeier, 74 U.S. at 288-89 (stating "the title to lands bordering on navigable streams should stop at the stream").

3

[¶39] The district court decided the western boundary of the lots in this case was the North Dakota-Montana border. The court explained the state line "is a fixed line that is not changed by the ever-moving river." The court held the State's deed conveying the lots transferred interests on both sides of the river: "[F]rom the Montana state line on the west to the east section line of Section 31 on the east . . . ."

[¶40] In Norby, which also addressed ownership of the West Bank, we similarly decided the relevant boundary was the North Dakota-Montana border and riparian principles did not apply. 2015 ND 232, ¶ 12. Although the property at

20

issue in Norby was the same, the facts forming the basis for the ownership claim were different. The plaintiff owned land adjacent to the West Bank on the Montana side of the border. Id. ¶ 5. He claimed title to the land in North Dakota based on riparian principles. Id. He alleged the language "less parts eroded by the Yellowstone River" in the defendants' chain of title meant he could acquire land by accretion. Id. ¶ 12. We rejected his claim explaining he could not rely on exceptions in the defendants' chain of title. Id. ¶¶ 12-13. We decided riparian principles did not apply because the boundary of the plaintiff's property—as described in his chain of title—was the fixed borderline. Id. ¶ 13. [¶41] The State's claim to the West Bank does not face the same limitations as the claim in Norby. Unlike the plaintiff's interests in Norby, which were limited by a fixed boundary, the State owns islands that form in the bed of a navigable stream. N.D.C.C. § 47-06-08. The State, as owner of an island, also owns accretions that form on its bank. N.D.C.C. § 47-06-05; Hogue, 71 N.W.2d at 54. As we explained in Part V-A, the district court's finding that the West Bank formed as an island in the Yellowstone River that later attached to the shore is not clearly erroneous. As we also explained in Part V-B, the boundary of government lots adjacent to a navigable river is the river. The district court erred as a matter of law when it decided the lots extended across the Yellowstone River. Based on the court's factual findings as to how the West Bank formed, and applying the correct law, the West Bank was never part of the government lots the State conveyed. The State consequently owns the West Bank.

C

[¶42] The State claims that if it did transfer its interest in the West Bank by deed, it reserved a 50% mineral interest by operation of N.D.C.C. § 38-09-01. Resolution of this issue is unnecessary to disposition of the appeal because we have decided the West Bank was never part of the lots conveyed by the deed.

D

[¶43] Norby and the Kuykendall Group argue the district court erred when it decided the State's claims are not barred by laches.

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[¶44] Laches is an affirmative equitable defense that may be invoked when there is a delay in bringing a claim. Am. Fed. Bank v. Grommesh, 2021 ND 228, ¶ 31, 968 N.W.2d 164. The delay must result in a changed condition that causes the adverse party disadvantage or prejudice. Id. "The party against whom laches is sought to be invoked must be actually or presumptively aware of his rights and must fail to assert them against a party who in good faith permitted his position to become so changed that he could not be restored to his former state." Id. (quoting Stenehjem ex rel. State v. Nat'l Audubon Soc'y, Inc., 2014 ND 71, ¶ 12, 844 N.W.2d 892). The party asserting laches bears the burden of proof. Id. Laches is generally a question of fact reviewed under the clearly erroneous standard. Twin City Tech. LLC v. Williams Cnty., 2022 ND 63, ¶ 11, 971 N.W.2d 822. [¶45] The doctrine of laches is limited when the government acts to protect the public's interest:

[L]aches generally is inapplicable against state government actions that assert or seek to enforce public rights or interests, or where the state government is acting in its governmental capacity, in the exercise of a governmental function, or is pursuing a suit founded on a sovereign right. The considerable reluctance to apply laches in such cases stems from concerns that imposing laches may impair the functioning of the government body, and that valuable public interests may be jeopardized or lost by the negligence, mistakes, or inattention of public officials.

Stenehjem, 2014 ND 71, ¶ 17 (quoting 27 Am.Ju.2d Equity § 122 (2013)). When the defense of laches is advanced against the government, courts must take "into account the valuable public interests that may be jeopardized or lost." Id. ¶ 18. [¶46] We have not decided whether the doctrine of laches may be invoked to foreclose the State's claims to interests in sovereign lands held in trust for the public. Under similar circumstances, other jurisdictions have decided the doctrine is either not applicable or that it is limited. The United States Supreme Court, in a dispute about ownership of submerged lands, explained:

The Government, which holds its interests here as elsewhere in trust for all the people, is not to be deprived of those interests by the

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ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches, or failure to act.

United States v. California, 332 U.S. 19, 40 (1947). "By the great weight of authority in this country the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or protect a public interest."

Corvallis Sand & Gravel Co. v. State Land Bd., 439 P.2d 575, 581 (Or. 1968) (cleaned up) (sitting en banc); see also Hous. Auth. of City of Atlantic City v. State, 456 A.2d 534, 538 (N.J. Super. Ct. Ch. Div. 1983) (explaining that, in cases involving riparian claims, laches is not applied against the state in the same manner as it is to private parties).

[¶47] The district court did not analyze the preliminary issue of whether laches may be invoked against the State's sovereign interest claims. The court assumed the defense was viable and decided it was not applicable under these circumstances. We will not decide in this case whether, or to what extent, laches may operate to bar a claim to sovereign interests along a navigable body of water because the issue was not raised, briefed, or decided in the district court. See Overbo v. Overbo, 2024 ND 233, ¶ 8, 14 N.W.3d 898 (discussing the party presentation principle, which is a "corollary to the separation of powers"). However, even assuming laches may be invoked against the State here, we are not persuaded it would operate to bar the State's claims. The court found this portion of the Yellowstone River is "ever changing," and that the ownership interests in question are not static. We agree with the court that the dynamic nature of this section of the river and the correspondingly evolving property interests weigh against application of laches. We hold the court's finding that no equitable basis exists to support a defense of laches is not clearly erroneous.

E

[¶48] The Kuykendall Group argues the State's claims are barred by a statute of limitations.

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Statutes of limitation are designed to prevent plaintiffs from sleeping on their legal rights and bringing stale claims to the detriment of defendants. Statutes of limitations are a legal bar to a cause of action and begin to run when the underlying cause of action accrues. The determination of when a plaintiff's cause of action has accrued is generally a question of fact, but if there is no dispute about the relevant facts, the determination is for the court. A cause of action accrues when the right to commence the action comes into existence and can be brought in a court of law without being dismissed for failure to state a claim.

Dunford v. Tryhus, 2009 ND 212, ¶ 6, 776 N.W.2d 539 (cleaned up). [¶49] The Kuykendall Group argued in the district court that the State's claims accrued in 1995 and consequently are barred by the 20-year limitation period under N.D.C.C. § 28-01-04 (governing actions for the recovery of property). The court decided the applicable limitation period is 40 years under N.D.C.C. § 28- 01-01 (governing actions brought by the State relating to real estate) and that the State's claims accrued in 1987. Now, on appeal, the Kuykendall Group does not dispute the 40-year limitation period applies but instead asserts the claims accrued in 1958. We will not address this argument—that the claims accrued before 1995—because it was not raised in the district court. See Great Plains Royalty Corp. v. Earl Schwartz Co., 2021 ND 62, ¶ 32, 958 N.W.2d 128 (issues not raised in the district court will not be considered for the first time on appeal).

VI

[¶50] The district court's factual finding that the North Island formed by an avulsive change in the course of the river, and not by accretions within the riverbed, is not clearly erroneous. The court did not misapply the law when it determined the State does not own the North Island. The court's factual finding that the West Bank formed as a result of an island attaching to the shore, and not by accretions deposited on the shoreland, is not clearly erroneous. The court erred as a matter of law when it decided the West Bank interests were included in the State's conveyance of government lots located on the other side of the river. The portion of the judgment declaring the State does not own the North

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Island is affirmed, and the portion of the judgment declaring the State does not own the West Bank is reversed.

[¶51] Lisa Fair McEvers, C.J.

Jon J. Jensen

Douglas A. Bahr

Daniel J. Crothers, S.J.

[¶52] The Honorable Daniel J. Crothers, Surrogate Judge, sitting in place of Friese, J., disqualified. The Honorable Justice Jerod E. Tufte recused himself subsequent to oral argument and did not participate in this decision.