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Norby v. Estate of Kuykendall

Supreme Court of North Dakota

September 17, 2015

Rocky Norby, Plaintiff, Appellant and Cross-Appellee
v.
Estate of Doris W. Kuykendall, James R. Kuykendall individually and as guardian and conservator for Doris W. Kuykendall, Todd Hermanson, and Terry Sivertson, Defendants, Appellees and Cross-Appellants

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

Ariston E. Johnson, Watford City, N.D., for plaintiff, appellant and cross-appellee.

Kevin J. Chapman, Williston, N.D., for defendants, appellees and cross-appellants.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice. Sandstrom, Justice, concurring in the result.

OPINION

Page 406

Carol Ronning Kapsner, Justice.

[¶1] Rocky Norby appeals, and the Estate of Kuykendall and others (collectively " Kuykendalls" ) cross-appeal, from a judgment quieting title to certain McKenzie County property in James Kuykendall and dismissing Norby's action to eject Kuykendall from the disputed property. Because Norby cannot claim title to accretions beyond the fixed boundary line set forth in his deed, we affirm the judgment.

I

[¶2] In 1912, Nels Olsen Walla received a patent from the United States for land in McKenzie County that abuts the Montana-North Dakota border. The Yellowstone River flows through the area, but the patent does not recite the river as a boundary of the property. In 1971, James Kuykendall purchased the land from his parents through a contract for deed. The deed does not describe the river as the boundary line of the property, but deeds in the chain of title state the conveyance was " less parts eroded [by or into] the Yellowstone River." James Kuykendall received a warranty deed to the property in 1994, stating the grant was " [s]ubject to exceptions, reservations, easements and rights of way of record."

[¶3] In 1984, Richard and Rocky Norby purchased a section of Richland County, Montana, property contiguous to the Kuykendall's property in North Dakota. The deed from which the Norbys received ownership of the property does not describe the Yellowstone River as the boundary line of the property and grants them property located only in Montana.

[¶4] From its formation to the present, the Yellowstone River has moved slowly east, eroding land from its east bank and accreting land to its west bank. At some point, a portion of the river crossed over from Montana into North Dakota and onto the land now owned by the Kuykendalls. This migration has left approximately 96 acres of accreted land between the North Dakota-Montana border and the west bank of the Yellowstone River. The Kuykendalls have paid the real estate taxes on the accreted land. In 2005, the Norbys executed a quit claim deed conveying the accreted land in North Dakota to Rocky Norby.

[¶5] Norby brought this action in 2012 to eject the Kuykendalls from the 96 acres of land between the North Dakota-Montana border and the west bank of the Yellowstone River and to have title to the disputed property quieted in him. Norby alleged he owned the land through the doctrine of riparian accretions. The Kuykendalls answered, claiming Norby does not own any land located in North Dakota and asserting the action was barred by the statute of limitations and laches. On cross-motions for summary judgment, the

Page 407

district court dismissed the action and quieted title in the Kuykendalls, concluding " Norby does not have title to property in North Dakota, Norby cannot claim title to property by accretion in North Dakota, and the true owner of the North Dakota Property is the Kuykendalls." The court did not address the Kuykendalls' alternative defenses of the statute of limitations and laches.

II

[¶6] Norby argues the district court erred in quieting title to the 96 acres of land in the Kuykendalls because, as a matter of law, he is entitled to the disputed property ...


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