Assignment #5 – The Meander Line: Devils Lake (Littoral and Riparian Rights)
Please study the cases found under Week 11 (Ownership of Bed of Devils Lake, and Utah vs. U.S.), and
the various handouts related to Meander Lines. Write an essay addressing the following statements and
1. Summarize the ownership position of the State of North Dakota with respect to the bed of Devils Lake
2. Summarize the responsibility of the original GLO Surveyor with respect to meandering Devils Lake.
3. Define the word “reliction” with respect to boundary law.
4. What is the relationship between the Ordinary High Water Line and the Meander line established in
the original GLO Survey?
5. What is the State of North Dakota’s position with respect to the lake bed exposed by the process of
eliction? What is the decision of the Supreme Court of North Dakota with respect to the State’s claim
of ownership to the exposed lands.
6. Why was the decision of the United States Supreme Court in Utah vs. U.S. an exception with respect
to the use of a meander line and not the rule.
Matter of Ownership of Bed of Devils Lake, 423 NW 2d 141 - ND:
423 N.W.2d XXXXXXXXXX)
In the Matter of the OWNERSHIP OF the BED OF DEVILS LAKE.
Appeal of STATE of North Dakota and the Ga
ison Diversion Conservancy District.
Civ. No XXXXXXXXXX.
April 18, 1988.
Supreme Court of North Dakota.
ay G. Sagsveen (argued), Sp. Asst. Atty. Gen., & Michael G. Fiergola (argued), Sp. Asst. Atty. Gen.,
Bismarck, for appellants State of North Dakota & Ga
ison Diversion Conservancy Dist.
Traynor, Rutten & Traynor, Devils Lake, for appellee Group of Landowners; argued by Thomas E. Rutten.
Gerald R. Keating (argued), Minneapolis, Minn., for appellee Davis Family.
Sarah P. Robinson (argued), Land & Natural Resources Division, U.S. Dept. of Justice, Washington, D.C.,
Foughty, Christianson & White Eagle, Devils Lake, for appellees George W. & Diane Cox, Harley C. & Alice
Raumin. No appearance.
The State of North Dakota and the Ga
ison Diversion Conservancy District (hereinafter collectively refe
as the State) appealed from a district court judgment in a class action concerning ownership of the bed of
Devils Lake below the meander line. We affirm.
After remand in Park District of the City of Devils Lake v. Garcia, 334 N.W.2d 824 (N.D.1983), several quiet title
actions were consolidated and the case was certified as a class action to quiet title to the bed of Devils Lake
elow the meander line around Devils Lake in certain designated townships. The membership of the class was
denominated as "All landowners *142 above, but adjacent to, the meander line around Devils Lake and all
landowners who claim an interest in the lakebed below the meander line." The United States of America, the
Devils Lake Sioux Tribe, the plaintiffs in 101 Ranch v. United States [Civil No. A XXXXXXXXXXD.N.D.) ], the State of
North Dakota, and the Ga
ison Diversion Conservancy District were excluded from the class. The court's order
provided that the following issues would be considered:
"a. Whether Devils Lake was navigable-in-fact at the time of statehood.
"b. Whether the ordinary high water mark for Devils Lake was (at the time of statehood), and
continues to be, the meander line or whether the ordinary high water mark is ambulatory (i.e.,
moves with the fluctuating elevation of the lake). If ambulatory, where is the ordinary high water
mark at this time?
"c. Whether any member of the class own, or have an interest in, lakebed below the meander
line. If the members of the class have an interest in the lakebed, what is the nature of the
The trial court found that: (1) Devils Lake was navigable at statehood; (2) the meander line is an "extremely
poor and inaccurate approximation of the ordinary high water mark" at statehood; (3) expert opinions "indicate
that the ordinary high water mark of Devils Lake at statehood was approximately 1,426 feet above mean sea
level;" (4) physical evidence indicates that the ordinary high water mark gradually and imperceptibly receded
until approximately 1940 and has since then gradually and imperceptibly risen; and (5) "physical evidence
indicates that the ordinary high water mark of Devils Lake is presently located once again at an elevation of
approximately 1,426 feet above mean sea level."
A partial judgment was entered that provides, in part:
"Upon being admitted to statehood the State of North Dakota acquired the bed of Devils Lake,
the boundary of which was the ordinary high water mark.
"From statehood until approximately 1940, the level of Devils Lake gradually and imperceptibly
eceded, and new ordinary high water marks were from time to time established at lower
elevations. As new ordinary high water marks were established, the bed of Devils Lake
diminished in size, and therefore so did the area owned and controlled by the State of North
"By legislative act now codified as section XXXXXXXXXXof the North Dakota Century Code, the
State of North Dakota granted to riparian and littoral landowners ownership rights below the
ordinary high water mark, down to the low water mark; the full extent and nature of those rights
as balanced against public rights, if any, extending up to the ordinary high water mark, has yet
to be determined in this state and is not at issue in this lawsuit.
"At any given time the area comprising the bed of Devils Lake which is owned and controlled by
the State of North Dakota and its grantees is bounded and defined by the ordinary high water
mark as it exists at that time, save and except for the effect of section XXXXXXXXXX, NDCC, to the
extent that said section grants riparian and littoral owners rights down to the low water mark as
it exists at that time."
The trial court issued a Rule 54(b), N.D.R. Civ.P., certification to allow an immediate appeal.
The State contends that it took title to the bed of Devils Lake at statehood to the ordinary high water mark as
epresented by the meander line established by governmental surveys and that it retains title to all land up to
the meander line despite recession of the waters of Devils Lake. The private landowners, on the other hand,
*143 contend that they own the land exposed by the recession of the waters of Devils Lake under the doctrine
of reliction, which gives them title to the cu
ent ordinary high water mark.
Although the State has raised a number of issues on appeal, we deem it necessary to address only its
contention that the meander line was the ordinary high water mark of Devils Lake at statehood and remains so
today because the doctrine of reliction is inapplicable to Devils Lake. The other issues relate either to findings
of fact that are not clearly e
oneous or to matters not decided by the trial court and therefore not ripe for
Initially, we note that a water line, rather than a meander line, ordinarily forms the boundary of a tract of land
abutting a navigable body of water. See, e.g., Ozark-Mahoning Co. v. State, 76 N.D. 464, 37 N.W.2d 488
(1949); State v. Brace, 76 N.D. 314, 36 N.W.2d XXXXXXXXXX); Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509
(1937); Gardner v. Green, 67 N.D. 268, 271 N.W XXXXXXXXXX); Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042
(1916); Heald v. Yumisko, 7 N.D. 422, 75 N.W XXXXXXXXXX); R. Beck, Boundary Litigation and Legislation in
North Dakota, 41 N.D.L.Rev XXXXXXXXXX); H. Ruemmele, Origin of Surveys in North Dakota, 24 Bar Briefs 102
The State observed in its
ief that "[t]he trial court, in its conclusions, adopts an `ambulatory' OHWM for
Devils Lake and applies the doctrine of reliction so that the OHWM follows the fluctuating elevation of Devils
Lake." Relying on Oregon v. Corvallis Sand & Gravel Co., 429 U.S. 363, 97 S.Ct. 582, 50 L.Ed.2d XXXXXXXXXX);
Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d XXXXXXXXXX); and § XXXXXXXXXX, N.D.C.C., the
"This novel concept is contrary to the decisions of the Supreme Court that `state title is not
subject to defeasance,' `that the title thus acquired by the State is absolute so far as any federal
principle of land titles is concerned' (i.e., that `federal common law' does not apply), that
`conveyance by the United States of land riparian to a navigable river ca
ies no interest in the
ed,' and that the OHWM is not the same as the low water mark." (Footnotes omitted.)
The concept of an ambulatory ordinary high water mark forming the boundary of land along a navigable body
of water as an incident of the doctrine of reliction is not contrary to the cited decisions of the United States
Supreme Court. Insofar as they are relevant to the issues involved here, those decisions recognized that a
state's title to land underlying a navigable body of water "vests absolutely as of the time of its admission and is
not subject to later defeasance by operation of any doctrine of federal common law" (Corvallis, supra, 429 U.S.
at XXXXXXXXXX, 97 S.Ct. at 587, 50 L.Ed.2d at 558); that such title is "absolute so far as any federal principle of
land titles is concerned" (Corvallis, supra, 429 U.S. at 375, 97 S.Ct. at 589, 50 L.Ed.2d at 560); that "[t]he title
and rights of riparian or littoral proprietors in the soil below [the] high-water mark, therefore, are governed by
the laws of the several states" [Corvallis, supra, 429 U.S. at 376, 97 S.Ct. at 589, 50 L.Ed.2d at 561, quoting