In Reep v. State, 2013 ND 253, the North Dakota Supreme Court held that the State owned the mineral interest under the shore zone of navigable waters; and that the upland owners only owned to the high watermark of the adjoining navigable waterbed. The exception to the holding is if the chain of title establishes that the State actually conveyed its interest in the shore zone to an upland owner, in which case the upland owner would own to the low watermark subject to the restrictions of the public trust doctrine, or where the deed provides otherwise. (The “public trust doctrine” requires North Dakota to hold, by virtue of its sovereignty, lands in trust for the United States to control such waters for purposes of navigation in interstate and foreign commerce.)
In Reep eleven landowners next to navigable waters sued the State of North Dakota seeking a declaration that they own the mineral interests under the shore zone of the navigable waters, being that area from the high watermark to the low watermark. The owners claimed that the language of N.D.C.C. § 47-01-15 acted to convey this shore zone to the upland owners. (N.D.C.C. § 47-15-01 provides “[e]xcept when the grant under which the land is held indicates a different intent, the owner of the upland, when it borders on a navigable lake or stream takes to the edge of the lake or stream at low watermark. . . .")
The Court in Reep stated that “[b]efore North Dakota was admitted to the Union, the United States held the beds of navigable waters in the Dakota Territory from high watermark to high watermark in trust for the future state.”
When North Dakota became a state in 1889 it took title to the beds of the Missouri River under the equal footing doctrine up to the ordinary high watermark on each bank, including the shore zone.
The exception to the State’s ownership to the high watermark is only if the State specifically conveyed by deed the interests of the upland owner down to the low watermark. However, because the State’s ownership of the riverbed and shore zone was Constitutionally conferred, after admission to the Union, North Dakota could not totally abdicate its interest to private parties because it held that interest in trust for the public. Therefore, if the State did convey its interest to the low watermark, the upland owner’s interest would be subject to the public trust doctrine.
The Court in Reep specifically declared that N.D.C.C. § 47-01-15 does not convey or allocate the State’s equal footing interest in the minerals under the shore zone between the high watermark and the low watermark. Therefore, unless the chain of title reflects otherwise, the State owns from the high watermark to the low watermark of the shore zone of the navigable waters.