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Riverwood Commercial Park, LLC, and Tom S. Freidt, Plaintiffs and v. Standard Oil Company

May 20, 2011

RIVERWOOD COMMERCIAL PARK, LLC, AND TOM S. FREIDT, PLAINTIFFS AND APPELLANTS
v.
STANDARD OIL COMPANY, INC., A/K/A BP, TESORO REFINING AND MARKETING COMPANY, BNSF RAILWAY COMPANY, AND MARMOT PROPERTIES, LLC, DEFENDANTS TESORO REFINING AND MARKETING COMPANY, APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme Court

Riverwood Commercial Park v. Standard Oil Co.,

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

2011 ND 95

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Riverwood Commercial Park, LLC, and Tom S. Freidt (collectively "Riverwood") appealed from a summary judgment dismissing Riverwood's action against Standard Oil Company, Inc. ("Standard") and Tesoro Refining and Marketing Company ("Tesoro"). We conclude the district court did not err in granting summary-judgment dismissal of Riverwood's claims because the court correctly ruled as a matter of law that Standard had been granted an easement rather than a license to operate a sewer pipeline in Morton County. We affirm.

I

[¶2] The historical background of this case is described in Riverwood Commercial Park, LLC v. Standard Oil Co., Inc., 2005 ND 118 ¶¶ 2-3, 698 N.W.2d 478 ("Riverwood I"):

In 1953, Standard owned an oil refinery in Mandan, and the Northern Pacific Railway Company ("NP") owned land between the refinery and the Heart River. On March 23, 1953, NP executed a written permit granting Standard permission to "construct, operate, and maintain" a sewer pipeline along NP's right-of-way from the refinery to the Heart River. The permit provided that Standard could not transfer or assign the permit without NP's written consent. A twenty-two inch underground sewer pipeline, including a large manhole, was constructed across NP's property from the refinery several miles south to the Heart River.

In 1998, NP [through its successor in interest, Burlington Northern and Santa Fe Railway Company ("BNSF")] sold a portion of its property containing the sewer pipeline to Marmot Properties. Since 1953, Standard has gone through a series of name changes and eventually became British Petroleum ("BP"). In 2001, BP sold the Mandan refinery to Tesoro. On May 17, 2004, Tesoro filed a "Notice of Permit," with a copy of the 1953 permit attached, with the Morton County Recorder's Office. On June 15, 2004, Marmot Properties sold the property involved in this case, with the sewer pipeline running beneath it, to Riverwood.

[¶3] Disputes soon arose between Riverwood and Tesoro over Riverwood's planned development of the property. In Riverwood I, we affirmed the district court's dismissal of Riverwood's summary eviction action against Standard and Tesoro in part because the 1953 written permit did not constitute a lease to support an eviction action under N.D.C.C. § 33-06-01(4), (7), and (8). 2005 ND 118, ¶¶ 11-13, 698 N.W.2d 478. Riverwood then brought this action against Standard and Tesoro alleging trespass, breach of contract, slander of title, right to quiet title, interference with prospective advantage, fraud, and nuisance. In Riverwood Commercial Park, L.L.C. v. Standard Oil Co., Inc., 2007 ND 36, ¶ 1, 729 N.W.2d 101 ("Riverwood II"), we reversed the district court's dismissal of this action, concluding that the claims for slander of title, right to quiet title, interference with prospective advantage, fraud and nuisance were not barred by res judicata, collateral estoppel, or the law of the case doctrine. We also held the court erred in dismissing with prejudice Riverwood's claims for trespass and breach of contract for failure to join indispensable parties. Id.

[¶4] On remand, the district court granted Tesoro and the other defendants' motions for summary judgment and again dismissed Riverwood's action with prejudice. The court concluded none of Riverwood's theories of recovery could be maintained because, as a matter of law, the 1953 permit created an easement rather than a license.

II

[ΒΆ5] Riverwood argues the district court erred in ruling as a matter of law that the 1953 permit constituted an ...


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