Owner.

The owner of property is the one who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy as he pleases, and to spoil or destroy it as far as the law permits, unless he is prevented by some agreement or covenant which restrains his right. Fleming v. Sherwood, 24 N.D. 144, 139 N.W. 101, 1912 N.D. LEXIS 17 (N.D. 1912).

Ownership.

Ownership is the right by which a thing belongs to an individual to the exclusion of all other persons. Fleming v. Sherwood, 24 N.D. 144, 139 N.W. 101, 1912 N.D. LEXIS 17 (N.D. 1912).

That which may be owned is property, and rights granted by statute may be owned. Iszler v. Jorda, 80 N.W.2d 665, 1957 N.D. LEXIS 95 (N.D. 1957).

Possessed and Used.

The term “possessed and used” is broader than the term “title” or the term “possession” and includes both. Fleming v. Sherwood, 24 N.D. 144, 139 N.W. 101, 1912 N.D. LEXIS 17 (N.D. 1912).

Law Reviews.

The North Dakota Land Trust, 45 N.D. L. Rev. 77 (1968).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to title to land, 65 N.D. L. Rev. 588 (1989).

In General.

Real property consists not only of land, but also of that which is affixed to land, that which is incidental or appurtenant to land, and that which is immovable by law. Mueller v. Mercer County, 60 N.W.2d 678, 1953 N.D. LEXIS 104 (N.D. 1953).

In an adversary proceeding seeking a declaration of rights under a gas and oil lease service agreement, the service agreement did not run with the land because it was not enough for the parties to call something a covenant that ran with the land, it was not an easement that was an estate in property or appurtenant to property, and the right to control produced oil and gas was not the grant of an interest in real property. Nine Pont Energy Holdings, Inc. v. Caliber Measurement Servs. LLC (In re Nine Point Energy Holdings Inc.), — B.R. —, — B.R. —, 2021 Bankr. LEXIS 1486 (Bankr. D. Del. June 1, 2021).

Affixation to Land.

Barn which was purchased and moved onto purchaser’s land and placed on blocks was not affixed to land as fixture but was personalty; purchaser had insurable interest in barn under fire policy even though land had been lost on execution sale before barn burned. Strobel v. Northwest G. F. Mut. Ins. Co., 152 N.W.2d 794, 1967 N.D. LEXIS 91 (N.D. 1967).

Defendant insured’s modular units as assembled and affixed to foundations for a motel were “real property” under this section and N.D.C.C. §§ 47-01-02 and 47-01-05; they therefore fell within the real property exception to the “damage to your product exclusion” in plaintiff insurer’s general liability policy. Scottsdale Ins. Co. v. Tri-State Ins. Co., 302 F. Supp. 2d 1100, 2004 U.S. Dist. LEXIS 2696 (D.N.D. 2004).

Corporeal Hereditaments.

Corporeal hereditaments are confined to land, and include not only the ground or soil, but everything which is attached to the earth, whether by course of nature or by the hand of man, and everything terrestrial, under or over it. Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 1916 N.D. LEXIS 174 (N.D. 1916).

Fixtures.

Fixtures, such as a barn, when permanently attached to the soil, are part of the real estate. Woolridge v. Torgrimson, 59 N.D. 307, 229 N.W. 805, 1930 N.D. LEXIS 143 (N.D. 1930).

Interest of Desert Entryman.

The interest of a desert-land entryman in public lands prior to his acquisition of a completed equitable title thereto is real property. Lower Yellowstone Irrigation Dist. v. Nelson, 71 N.D. 439, 2 N.W.2d 180, 1941 N.D. LEXIS 184 (N.D. 1941).

Real Estate.

The term “real estate” means an estate in fee or for life in land, and does not comprehend terms for years or any interest short of a freehold. Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 1916 N.D. LEXIS 174 (N.D. 1916).

Things Real.

Things real consist of lands, tenements, and hereditaments, the latter meaning anything capable of being inherited, either corporeal, incorporeal, real, personal, or mixed. Sox v. Miracle, 35 N.D. 458, 160 N.W. 716, 1916 N.D. LEXIS 174 (N.D. 1916).

Collateral References.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728, 735.

Manure as real or personal property as between seller and buyer of real property, 82 A.L.R.2d 1099.

Wills: term “money” or “moneys” in will as including real property, 76 A.L.R.3d 1254.

Determination of Fixture.

An agreement that an article annexed to realty may be removed by the tenant, thereby rendering inapplicable the common-law rules governing fixtures, may be entered into after annexation. Warner v. Intlehouse, 60 N.D. 542, 235 N.W. 638, 1931 N.D. LEXIS 201 (N.D. 1931).

In determining whether personal property became a fixture under the statute, the court will look into the intention of the persons making the annexation, the manner in which the article or building is annexed, and its adaptation to the use of realty. Gray v. Krieger, 66 N.D. 115, 262 N.W. 343, 1935 N.D. LEXIS 176 (N.D. 1935).

In determining whether personalty has become a fixture under this section, court will look to intention of person making the annexation, the manner in which building is annexed, and its adaptation to use of realty. Strobel v. Northwest G. F. Mut. Ins. Co., 152 N.W.2d 794, 1967 N.D. LEXIS 91 (N.D. 1967).

Notwithstanding the physical characteristics of a fixture, the parties may agree that it is personal property; however, such an agreement is not binding upon subsequent purchasers or mortgagees in good faith, without notice of the agreement. Conversely, a subsequent purchaser or mortgagee who joins in or has notice of the agreement is ordinarily bound thereby. Lundgren v. Mohagen, 426 N.W.2d 563, 1988 N.D. LEXIS 244 (N.D. 1988).

The determination whether there has been an agreement to treat fixtures as personalty is a question of fact. Marsh v. Binstock, 462 N.W.2d 172, 1990 N.D. LEXIS 225 (N.D. 1990).

Notwithstanding the physical characteristics of a fixture, parties may agree to give it the legal character of personalty. Marsh v. Binstock, 462 N.W.2d 172, 1990 N.D. LEXIS 225 (N.D. 1990).

Where contract for deed valued milking equipment at $8,000, and tax statement filed at time of sale stated that personal property valued at $8,000 was included, issue of material fact existed concerning whether vendor and purchaser agreed to treat milking equipment attached to barn as personalty precluding summary judgment in conversion action arising when equipment was sold by purchaser. Marsh v. Binstock, 462 N.W.2d 172, 1990 N.D. LEXIS 225 (N.D. 1990).

House was considered a fixture while it was being raised to have the foundation replaced where the intention was to have the house remain on the property permanently. Grinnell Mut. Reinsurance Co. v. Lynne, 2004 ND 166, 686 N.W.2d 118, 2004 N.D. LEXIS 293 (N.D. 2004).

“Improvement to Real Property.”

It was unnecessary to define the term “improvement to real property” because only one conclusion — that the grain bin was an improvement to real property — could reasonably be drawn, where the bin was a 10,000-bushel bin anchored to a cement slab by bolts, with a perforated floor nine inches above the cement slab upon which the bin rested, part of a grain-handling system which also consisted of two additional 10,000-bushel bins, a 3,500-bushel overhead bin, two hopper bins, and a leg, and since the bin was erected in 1967, the owner had never moved it or removed any of the anchors. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

“Permanently Resting” Defined.

Under a statute including as realty what is affixed to the land, and providing that it is deemed to be affixed when permanently resting on it, the term “permanently resting” contrasts with transient or temporary. Nelson v. Kloster, 68 N.D. 108, 277 N.W. 390, 1938 N.D. LEXIS 88 (N.D. 1938).

Railroad Tracks.

While it may be true that railroad tracks are generally held to be personal property, when railroad tracks are placed on mining property a disputable presumption arises that they are part of the realty and an agreement to make them personal property is binding on a purchaser only if the purchaser has notice, actual or constructive, thereof. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

Realty or Personalty.

Parties may by agreement give to fixtures the legal character of realty or personalty at their option. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

Whether or not an agreement to treat fixtures as personalty is binding on a purchaser of the land depends on notice of the agreement to the purchaser. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

An agreement to give fixtures the legal character of personalty avails as against a purchaser of the land with notice thereof, actual or constructive. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

When an owner of realty and fixtures sells the fixtures separate from the real estate, a constructive severance occurs and the fixtures become personal property. Marsh v. Binstock, 462 N.W.2d 172, 1990 N.D. LEXIS 225 (N.D. 1990).

What Constitutes a Fixture.

A light plant in the basement of a farm dwelling house, with necessary equipment, and a hay carrier attached to a barn, with necessary equipment, are fixtures. Klocke v. Troske, 57 N.D. 404, 222 N.W. 262, 1928 N.D. LEXIS 144 (N.D. 1928).

Windmills, wells, and fences ordinarily are fixtures. Hasse v. Dewitz, 76 N.D. 108, 33 N.W.2d 625, 1948 N.D. LEXIS 63 (N.D. 1948).

Barn which was purchased and moved onto purchaser’s land and placed on blocks was not affixed to land as fixture but was personalty; purchaser had insurable interest in barn under fire policy even though land had been lost on execution sale before barn burned. Strobel v. Northwest G. F. Mut. Ins. Co., 152 N.W.2d 794, 1967 N.D. LEXIS 91 (N.D. 1967).

At time of sale, physical characteristics of milking equipment were characteristic of fixtures as equipment was permanently attached to barn by screws, electric wiring and separate piping for water and freon and equipment was specifically adapted to the use of the realty. Marsh v. Binstock, 462 N.W.2d 172, 1990 N.D. LEXIS 225 (N.D. 1990).

Defendant insured’s modular units as assembled and affixed to foundations for a motel were “real property” under this section and N.D.C.C. §§ 47-01-02 and 47-01-03; they therefore fell within the real property exception to the “damage to your product exclusion” in plaintiff insurer’s general liability policy. Scottsdale Ins. Co. v. Tri-State Ins. Co., 302 F. Supp. 2d 1100, 2004 U.S. Dist. LEXIS 2696 (D.N.D. 2004).

Collateral References.

Condemnation of land, separate valuation on, 1 A.L.R.2d 878.

Plumbing and heating materials delivered to premises but not installed, doctrine of constructive annexation as applied to, 10 A.L.R.2d 207.

Sprinkler system as fixture, 19 A.L.R.2d 1300, 1314.

Amusement apparatus or device as fixture, 41 A.L.R.2d 664.

Plumbing: appliances, accessories, pipes, or other articles connected with plumbing, as fixtures, 52 A.L.R.2d 222.

Carpets, linoleum, or the like, as fixtures, 55 A.L.R.2d 1044, 1048.

Electric range as fixture, 57 A.L.R.2d 1103.

Electronic computing equipment as fixture, 6 A.L.R.3d 497.

Insurance: what are “fixtures” within provision of property insurance policy expressly extending coverage to fixtures, 17 A.L.R.3d 1381.

Air-conditioning appliance, equipment, or apparatus as fixture, 69 A.L.R.4th 359.

Law Reviews.

Actions Arising out of Improvements to Real Property: Special Statutes of Limitations, 57 N.D. L. Rev. 43 (1981).

In General.

Fact that the railway tracks and the mine were owned by different parties is not dispositive of whether or not the tracks were “used in working or developing a mine”. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

“By Right”.

The words “by right” in this section are sufficiently broad to encompass a contractual right. Burlington N. R.R. v. Scheid, 398 N.W.2d 114, 1986 N.D. LEXIS 444 (N.D. 1986).

Collateral References.

Insurance: what are “appurtenant” private structures within provision of property insurance policy expressly extending coverage to such structures, 43 A.L.R.3d 1351.

Affixation to Land.

Barn which was purchased and moved onto purchaser’s land and placed on blocks was not affixed to land as fixture but was personalty; purchaser had insurable interest in barn under fire policy even though land had been lost on execution sale before barn burned. Strobel v. Northwest G. F. Mut. Ins. Co., 152 N.W.2d 794, 1967 N.D. LEXIS 91 (N.D. 1967).

Choses in Action.

Choses in action are personal property. Sykes v. Hannawalt, 5 N.D. 335, 65 N.W. 682, 1895 N.D. LEXIS 35 (N.D. 1895).

Equitable Lien.

The equitable lien on the distributee’s share, through which the estate could have collected its debt, was property and, as such, could be transferred. Aberle v. Merkel, 70 N.D. 89, 291 N.W. 913, 1940 N.D. LEXIS 150 (N.D. 1940).

Injury to Property.

The payment by the father of the funeral expenses of a son killed by wrongful acts of another impaired his total assets in that amount and was an injury to property. Iszler v. Jorda, 80 N.W.2d 665, 1957 N.D. LEXIS 95 (N.D. 1957).

The right of parents to the services of minor unmarried children is property by statutory definition, and the destruction of that right is an injury to property. Iszler v. Jorda, 80 N.W.2d 665, 1957 N.D. LEXIS 95 (N.D. 1957).

Collateral References.

What passes under term “personal property” in will, 31 A.L.R.5th 499.

Good Will.

The good will of a business is property. Mapes v. Metcalf, 10 N.D. 601, 88 N.W. 713, 1901 N.D. LEXIS 80 (N.D. 1901).

Land Beneath Water.

Land underlying the water of an inland nonnavigable lake is the subject of private ownership. Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042, 1916 N.D. LEXIS 22 (N.D. 1916).

Lottery Right.

The player of a pinball machine acquires the right to receive free games if he wins, and this right, being subject to ownership, is property. Middlemas v. Strutz, 71 N.D. 186, 299 N.W. 589, 1941 N.D. LEXIS 151 (N.D. 1941).

Services of Child.

The right of parents to the earnings and services of an unmarried minor child is property subject to ownership. Iszler v. Jorda, 80 N.W.2d 665, 1957 N.D. LEXIS 95 (N.D. 1957).

Collateral References.

Contract, property rights in, as basis of liability for inducing breach of, 26 A.L.R.2d 1227.

Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294.

Punitive damages for interference with contract or business relationship, 44 A.L.R.4th 1078.

Who “harbors” or “keeps” dog under animal liability statute, 64 A.L.R.4th 963.

Liability for injuries caused by cat, 68 A.L.R.4th 823.

Law Reviews.

Good Will, 4 Dak. L. Rev. 15 (1932).

Boundary of Ownership.

Absent a contrary intent, the grant under which the [riparian] land is held includes a riparian grantee’s full interest in the shore zone, and necessarily precludes the state’s claim of absolute ownership to the high watermark; however, the equal footing and public trust doctrines establish that the state cannot totally abdicate its interest to the high watermark, and that a riparian landowner’s interest to the law watermark is not absolute. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 1994 N.D. LEXIS 224 (N.D. 1994).

Comparison with Federal Law.

While federal law extends an upland owner’s rights only to the ordinary high water mark, North Dakota law provides that an upland owner “takes to the edge of the lake … at low watermark.”101 Ranch v. United States, 714 F. Supp. 1005, 1988 U.S. Dist. LEXIS 16413 (D.N.D. 1988), aff'd, 905 F.2d 180, 1990 U.S. App. LEXIS 8644 (8th Cir. N.D. 1990).

It is not entirely clear from the language of this section whether it grants upland owners title or only a license or easement down to the ordinary low watermark, but it is apparent that North Dakota law would extend some interest or rights to upland owners not provided under federal law. 101 Ranch v. United States, 714 F. Supp. 1005, 1988 U.S. Dist. LEXIS 16413 (D.N.D. 1988), aff'd, 905 F.2d 180, 1990 U.S. App. LEXIS 8644 (8th Cir. N.D. 1990).

Doctrine of Reliction and Ambulatory High Water Mark.

For discussion of evidence sufficient to warrant application of the doctrine of reliction and an ambulatory high watermark to determine the boundary of a navigable body of water. In re Ownership of Bed of Devils Lake, 423 N.W.2d 141, 1988 N.D. LEXIS 113 (N.D. 1988).

Effect of Meander Line.

Where an irregular tract of land abuts upon a stream, and a meander line is run ostensibly along the shore line for the purpose of fixing the area of this tract, the real boundary is the shore line and not the meander line. Heald v. Yumisko, 7 N.D. 422, 75 N.W. 806, 1898 N.D. LEXIS 91 (N.D. 1898); Gardner v. Green, 67 N.D. 268, 271 N.W. 775, 1937 N.D. LEXIS 80 (N.D. 1937); Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509, 1937 N.D. LEXIS 105 (N.D. 1937).

A water line, rather than a meander line, ordinarily forms the boundary of a tract of land abutting a navigable body of water. In re Ownership of Bed of Devils Lake, 423 N.W.2d 141, 1988 N.D. LEXIS 113 (N.D. 1988).

Land Between High and Low water marks.

This section is a rule of construction under which an upland owner “takes” the interest granted in a conveying instrument to the low watermark, except when the grant under which the land is held indicates a different intent. The interests of a riparian grantee and the state in the area between the ordinary high watermark and the ordinary low watermark were not absolute, and that both parties had correlative interests in that area. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).

Missouri River.

The state of North Dakota holds title to the bed of the Missouri River, which includes underlying oil and gas. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

State law was determinative of a dispute over mineral rights in and under the shore zone of the Missouri River. The federal district court found that abstention was appropriate and warranted in order to allow the state courts of North Dakota to decide unsettled issues of state law. Brigham Oil & Gas, L.P. v. N.D. Bd. of Univ. & Sch. Lands, 866 F. Supp. 2d 1082, 2012 U.S. Dist. LEXIS 77575 (D.N.D. 2012).

Nonnavigable Streams.

The owner of the banks along a nonnavigable stream owns the bed of the stream to its center or thread. Amoco Oil Co. v. State Highway Dep't, 262 N.W.2d 726, 1978 N.D. LEXIS 211 (N.D. 1978).

Public Lands.

Where public lands bounded on a stream are patented by the United States without reservations or restrictions, the riparian rights of the patentee are determined by the law of the state in which the lands lie. Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509, 1937 N.D. LEXIS 105 (N.D. 1937).

Public Trust and Equal Footing Doctrines.

Although a riparian landowner may claim absolute ownership of the land above the ordinary high watermark and the state may claim absolute ownership of the land below the ordinary low watermark via the public trust and equal footing doctrines, those doctrines and this section do not contemplate absolute ownership of the shore zone by either party; both parties have correlative interests in the shore zone. Under the public trust and equal footing doctrines, the state has interests in the shore zone which involve more than a navigational servitude, and under this section a riparian owner “takes” more than the mere right of access to the water. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 1994 N.D. LEXIS 224 (N.D. 1994).

State owned the mineral interests under the shore zone of navigable waters upon statehood in 1889 under the equal footing doctrine, and the enduring language of the anti-gift clause found in N.D. Const. art. X, § 18 precluded construing the language codified in N.D.C.C. § 47-01-15 as a gift of the State’s mineral interests under the shore zone to the upland owners; however, an upland owner was not precluded from taking to the low watermark if the chain of title established that the State had granted its equal footing interest to an upland owner. Reep v. State, 2013 ND 253, 841 N.W.2d 664, 2013 N.D. LEXIS 259 (N.D. 2013).

Public Water.

If an inland lake is navigable in fact, it is a public water. Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622, 1921 N.D. LEXIS 99 (N.D. 1921); Rutten v. State, 93 N.W.2d 796, 1958 N.D. LEXIS 106 (N.D. 1958).

Purpose.

This section does not grant a riparian landowner absolute ownership of the shore zone, but is a rule of construction for determining the boundary for grants of riparian land and is not itself an absolute grant of ownership to the low watermark. State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, 1994 N.D. LEXIS 224 (N.D. 1994).

State Title.

As patented lands riparian to a navigable stream are eroded and washed away by the action of the water and become submerged below low watermark the title to such submerged lands passes by operation of law to the state. Hogue v. Bourgois, 71 N.W.2d 47, 1955 N.D. LEXIS 114 (N.D. 1955).

The title of the state to lands below the low watermark of a navigable stream is coextensive with the bed of the stream as it may exist from time to time. Hogue v. Bourgois, 71 N.W.2d 47, 1955 N.D. LEXIS 114 (N.D. 1955).

The state of North Dakota holds title to the bed of the Missouri River, which includes underlying oil and gas. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

Collateral References.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

Rights to land created at water’s edge by filling or dredging, 91 A.L.R.2d 857.

Right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto, 61 A.L.R.3d 1173.

Riparian owner’s right to new land created by reliction or accretion influenced by artificial condition not produced by such owner, 63 A.L.R.3d 249.

Law Reviews.

The Nature and Extent of Rights in Water in North Dakota, 51 N.D. L. Rev. 249 (1975).

North Dakota Century Code § 47-01-15

North Dakota Waterways: The Public’s Right of Recreation and Questions of Title, 64 N.D. L. Rev. 7 (1988).

Eminent Domain.

City exercising its authority to create pedestrian malls pursuant to section 40-62-01 must initiate eminent domain proceedings to compensate abutting property owners since those owners are presumed to hold fee ownership in the street. City of Fargo v. Fahrlander, 199 N.W.2d 30, 1972 N.D. LEXIS 155 (N.D. 1972).

Land Owner’s Interest in Roads.

Court properly granted summary judgment to an insurer in a declaratory judgment action where a semi-truck was not covered under a farmer’s policy because an exclusion contained limited exceptions which did not provide coverage for motor vehicles on public roads or highways. The semi-truck was indisputably driven on public roads and it was irrelevant whether the state’s interest in highway abutting insured’s property was treated as an easement or a fee interest and N.D.C.C. § 47-01-16 did not operate to extend coverage, as the collision occurred more than two miles from the insured’s farm, and the driver had to cross several strips of highway that did not abut land owned by insured. The language of the policy precluded coverage for the semi-truck because it was designed for travel on public roads and subject to motor vehicle registration. Nationwide Mut. Ins. Cos. v. Lagodinski, 2004 ND 147, 683 N.W.2d 903, 2004 N.D. LEXIS 279 (N.D. 2004).

Pursuant to N.D.C.C. § 47-01-16, summary judgment was improper on plaintiff’s premises liability claim because it could not be determined as a matter of law that the landowner had no control over the premises on which the injury occurred or over the condition which allegedly caused the injury. Saltsman v. Sharp, 2011 ND 172, 803 N.W.2d 553, 2011 N.D. LEXIS 172 (N.D. 2011).

Collateral References.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Tree or limb falling onto adjoining private property, personal injury or property damage liability, 54 A.L.R.4th 530.

Buildings and Other Structures.

Where removal of lateral support has affected a building or other structure on adjoining land, this section, which applies only to the support of “land”, does not alter the common law, and in order to incur liability, the excavating owner must have failed to use ordinary care and skill in accomplishing his task. Hermanson v. Morrell, 252 N.W.2d 884, 1977 N.D. LEXIS 254 (N.D. 1977).

Failure to Give Notice.

Failure to give the notice which is required by this statute is evidence of negligence, but where plaintiff had personal knowledge of the excavation, the failure to give statutory notice of the excavation is not decisive of the issue of liability. Malmstad v. McHenry Tel. Co., 29 N.D. 21, 149 N.W. 690, 1914 N.D. LEXIS 4 (N.D. 1914).

“Land” Defined.

The term “land” as used in this section is subject to the definition found in N.D.C.C. § 47-01-04. Hermanson v. Morrell, 252 N.W.2d 884, 1977 N.D. LEXIS 254 (N.D. 1977).

Purpose of Notice.

The purpose of the notice provision of this statute is to enable the adjacent landowner to take steps for his protection if his neighbor has failed to do so. Malmstad v. McHenry Tel. Co., 29 N.D. 21, 149 N.W. 690, 1914 N.D. LEXIS 4 (N.D. 1914).

Scope of Right to Support.

This section does not grant to real property owners an absolute right to lateral support of their land, but rather a right to such support “subject to” the rights of adjoining landowners to excavate, provided they limit the excavation to those things which are proper and usual, do the work with ordinary care and skill, take precautions to sustain their neighbor’s land, and give the neighbor reasonable notice of their intent to excavate; but where an excavator fails to comply with any of the above conditions, he will be absolutely liable for any damages which result to his neighbor’s land, as at common law. Hermanson v. Morrell, 252 N.W.2d 884, 1977 N.D. LEXIS 254 (N.D. 1977).

Collateral References.

Liability of employer for injury to adjoining realty resulting from excavation work by independent contractor on his premises, 33 A.L.R.2d 111.

Measure of damages for loss of or interference with lateral support, 36 A.L.R.2d 1253.

Liability of excavators for damages to noncoterminous tract from removal of lateral support, 87 A.L.R.2d 710.

Dredging, liability for damages to adjacent land or building caused by, 62 A.L.R.3d 526.

Rebuttable Presumption.

The presumption that the owner of land owns a crop growing thereon may be overcome by proof that he has sold the crop, or other evidence to the contrary. Ellestad v. Northwestern Elevator Co., 6 N.D. 88, 69 N.W. 44, 1896 N.D. LEXIS 11 (N.D. 1896).

Things Added to Realty.

The word “accessions” applies to things added to the realty. Golden Valley Land & Cattle Co. v. Johnstone, 21 N.D. 101, 128 N.W. 691, 1910 N.D. LEXIS 145 (N.D. 1910).

Collateral References.

Motor vehicle, accession to, 43 A.L.R.2d 813.

Bank Account.

Deposit of money by one party in an account which designates depositor and another as joint owners creates a joint tenancy in the funds contained therein. First Nat'l Bank & Trust Co. v. Green, 66 N.D. 160, 262 N.W. 596, 1935 N.D. LEXIS 182 (N.D. 1935).

Divorce.

Property settlement agreement included in a divorce decree providing for the sale of property held in joint tenancy and a division of the proceeds severs the joint tenancy, and the former husband and wife hold the property as tenants in common until the property is sold. Renz v. Renz, 256 N.W.2d 883, 1977 N.D. LEXIS 166 (N.D. 1977).

Medical Assistance Benefits.

District court erred in ruling that the Department of Human Services was entitled to 100 percent of the net sale proceeds from the sale of a decedent’s home to pay for medical assistance benefits previously received by his deceased spouse because the Department’s recovery from a deceased Medicaid recipient’s joint tenancy property was limited to the deceased recipient’s fractional interest in the property. In re Estate of Krueger, 2019 ND 42, 923 N.W.2d 475, 2019 N.D. LEXIS 44 (N.D. 2019).

Possession by One.

Possession of joint tenancy property by one joint tenant is deemed possession of both, and each has right of enjoyment to extent of his interest. In re Estate of Paulson, 219 N.W.2d 132, 1974 N.D. LEXIS 213 (N.D. 1974).

Right of Survivorship.

A joint tenant who survives does not take the moiety of the other tenant from him or as his successor, but takes it by right under the conveyance or instrument by which the joint tenancy was created. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Joint tenancy real property became the property of the widow upon the death of her husband by right of survivorship and not by the will of the deceased husband. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Although creditors of decedent might have levied upon decedent’s interest in the real estate during his lifetime, upon his death title passes to the survivor subject only to payment of estate taxes. Schlichenmayer v. Luithle, 221 N.W.2d 77, 1974 N.D. LEXIS 182 (N.D. 1974).

Real property owned by joint tenancy became property of widow on death of her husband by right of survivorship, and provision of will which purported to give widow life estate with remainder to husband’s children was void, since husband had no interest in property which he could devise. Cranston v. Winters, 238 N.W.2d 647, 1976 N.D. LEXIS 192 (N.D. 1976).

Each joint tenant with a right of survivorship holds what amounts to a life estate with a remainder in fee contingent upon survival of the other joint tenant; thus, each joint tenant has a contingent fee estate from the time of the creation of the tenancy and the survivor takes nothing from the estate of the other upon his death; therefore, where husband and wife held all their property jointly and had done so since its acquisition, upon the death of the husband-debtor there was nothing on which a writ of execution could operate, and such writ was properly quashed. Jamestown Terminal Elevator v. Knopp, 246 N.W.2d 612, 1976 N.D. LEXIS 141 (N.D. 1976).

Savings Bonds.

Where series E savings bonds are listed in the name of two persons as coowners, a bond so issued will be paid to either coowner upon request and without the signature of the other. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

If either coowner of a series E savings bond dies while the bond remains a valid obligation, the surviving coowner is recognized as the sole and absolute owner of the bond and entitled to a payment or reissue as though the bond has been registered in his or her name alone. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Collateral References.

Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy, 1 A.L.R.2d 247.

Character of tenancy created by owner’s conveyance to himself and another, or to another alone of an undivided interest, 44 A.L.R.2d 595.

What constitutes a devise or bequest in joint tenancy notwithstanding statute raising a presumption against joint tenancy, 46 A.L.R.2d 523.

Survivorship rights in joint bank account in name of incompetent and another, 62 A.L.R.2d 1091, 1100.

Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons, 32 A.L.R.3d 570.

Creation of joint savings account or savings certificate as gift to survivor, 43 A.L.R.3d 971.

Judgment lien or levy of execution on one joint tenant’s share or interest as severing joint tenancy, 51 A.L.R.4th 906.

Law Reviews.

North Dakota Joint Tenancies: Severance by Contract for Deed? 42 N.D. L. Rev. 351 (1966).

Contribution Among Cotenants.

Where one cotenant pays more than his share of the expenses of the property, a cotenant who has not paid his share of the expenses and who fails to make contribution to the paying cotenant within a reasonable time may be deemed to have abandoned his interest in the property, and his interest will be forfeited to the paying cotenant; however, when the nonpaying cotenant has not failed to make contribution within a reasonable time, the interest of the paying cotenant is not expanded by virtue of his payment in excess of his share. Eastman v. Nelson, 319 N.W.2d 134, 1982 N.D. LEXIS 274 (N.D. 1982).

Right of Survivorship.

There is no valid reason nor any rule of law that forbids the creation of the right of survivorship in tenants in common. First Nat'l Bank & Trust Co. v. Green, 66 N.D. 160, 262 N.W. 596, 1935 N.D. LEXIS 182 (N.D. 1935).

Collateral References.

Partners, tenancy in common between, after dissolution, as affecting accountability for profits earned subsequently to dissolution, 55 A.L.R.2d 1391, 1417.

Character of tenancy created by owner’s conveyance to himself and another, or to another alone of an undivided interest, 44 A.L.R.2d 595.

Beneficiaries of Discretionary Trust.

Where the principal and income of a trust are payable to beneficiaries as a class, only in the uncontrolled discretion of the trustee, the beneficiaries do not have interests in the trust property, but have merely inalienable expectancies with no certainty of ultimate enjoyment. Brownell v. Leutz, 149 F. Supp. 98, 1957 U.S. Dist. LEXIS 3830 (D.N.D. 1957).

Nontransferability.

Under the real property law of both California and North Dakota, a mere possibility, such as an expectancy of an heir apparent, is not to be deemed an interest of any kind, and it cannot be transferred. Wacker Oil v. LoneTree Energy, 459 N.W.2d 381, 1990 N.D. LEXIS 163 (N.D. 1990).

Due-on-Sale Clause in Mortgage.

Federal regulations permit federally chartered savings and loan associations to enforce due-on-sale clauses in real estate mortgages; such clauses do not violate this section. Northwestern Fed. Sav. & Loan Ass'n v. Ternes, 315 N.W.2d 296, 1982 N.D. LEXIS 238 (N.D. 1982).

Where Fee Simple Is Devised.

Where an estate in fee simple is given by will, an attempted testamentary restraint on the devisee’s power of alienation is void as repugnant to the nature of the estate given. Holien v. Trydahl, 134 N.W.2d 851, 1965 N.D. LEXIS 164 (N.D. 1965).

Collateral References.

Class: validity of provision of will or conveyance limiting alienation to certain individuals or those of a limited class, 36 A.L.R.2d 1437.

Validity of restraint on alienation, of an estate in fee, ending not later than expiration of a life or lives in being, 42 A.L.R.2d 1243.

Charities: validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.

Preemptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation, 40 A.L.R.3d 920.

Options: independent option to purchase real estate as violating rule against perpetuities or restraints on alienation, 66 A.L.R.3d 1294.

In General.

The owner of a life estate must do no act to injure the inheritance. Roach v. McKee, 66 N.D. 304, 265 N.W. 264, 1936 N.D. LEXIS 171 (N.D. 1936).

Because the deed creating the life estate in the life tenant only reserved the minerals in the property and did not reserve the surface, and the deed did not contain any language excluding application of the doctrine, it was clear that the open mines doctrine applied. Thus, the life tenant was entitled to the proceeds from the oil and gas production, including the royalties and bonus payments, and she was not required to hold the proceeds in trust for the remainderman. The district court erred in granting summary judgment in favor of the remainderman. Reese v. Reese-Young, 2020 ND 35, 938 N.W.2d 405, 2020 N.D. LEXIS 34 (N.D. 2020).

Open mines doctrine was a common law doctrine adopted as the law in North Dakota as it did not conflict with any statutory law, including the duties and relationship between life tenants and remaindermen in N.D.C.C. §§ 47-02-33 and 47-04-22. Reese v. Reese-Young, 2020 ND 35, 938 N.W.2d 405, 2020 N.D. LEXIS 34 (N.D. 2020).

Profits.

In a dispute between siblings over a trust, the trial court correctly determined that the trust instrument was not ambiguous as to the creation of life estate interests for defendant trustees; in accordance with N.D.C.C. § 47-02-33, defendants were entitled to profits from the trust lands during their lifetimes. Sabo v. Keidel, 2008 ND 41, 745 N.W.2d 661, 2008 N.D. LEXIS 41 (N.D. 2008).

Collateral References.

Mineral lease, rights of tenant for life and remaindermen inter se in royalties or rents under, 18 A.L.R.2d 98.

Life tenant’s right of action for injury or damage to property, 49 A.L.R.2d 1117.

Timber rights of life tenant, 51 A.L.R.2d 1374.

Eminent domain, distribution as between life tenant and remainderman of proceeds of, 91 A.L.R.2d 963.

Improvement assessments, duty as between life tenant and remainderman as respects payment of, 10 A.L.R.3d 1309.

Forfeiture of life estate for waste, 16 A.L.R.3d 1344.

Crops: rights in respect of crops as between estate of life tenant and remainderman, 47 A.L.R.3d 784.

Waste: right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift, 83 A.L.R.3d 135.

Duty as between life tenant and remainderman with respect to cost of improvements or repairs made under compulsion of governmental authority, 43 A.L.R.4th 1012.

Remainder or Reversion.

A future estate is a remainder only when it cannot be a reversion, and it cannot be both at the same time. Sailer v. Mercer County, 75 N.D. 123, 26 N.W.2d 137, 1947 N.D. LEXIS 52 (N.D. 1947).

Vested Remainder.

A person who is vested with title to land through the will of his father, though the land is subject to the life estate of his mother, is the owner of a vested remainder which is real property subject to the lien of a judgment. John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 137 N.W. 412, 1912 N.D. LEXIS 110 (N.D. 1912).

Collateral References.

Possibility of issue extinct, doctrine as to, as affecting property rights, 98 A.L.R.2d 1285.

Grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin as leaving reversion or creating remainder, 16 A.L.R.2d 691, 714.

Comment note: “Divide and pay over” rule, for purposes of determining vested or contingent character of estate, as affected by postponing enjoyment to let in an intermediate interest, 16 A.L.R.2d 1383.

Nature of remainders created by will giving life estate to spouse of testator, with remainder to be divided equally between testator’s heirs and spouse’s heirs, 19 A.L.R.2d 371.

Gift or grant to one upon marriage, if married, payable at marriage, or the like, as vested or contingent, 30 A.L.R.2d 127.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting the character of remainder as vested or contingent, 47 A.L.R.2d 900.

Character of remainder limited generally to life tenant’s children, 57 A.L.R.2d 103.

Nature of remainder created by inter vivos trust giving settlor, trustee or life beneficiary power to exhaust trust fund or otherwise terminate trust, 61 A.L.R.2d 477.

Survival: Where will names two or more remaindermen to take under different contingencies, must the one whose contingency occurs survive the other to make his interest transmissible?, 90 A.L.R.2d 312.

Benefit to Adjoining Land.

If a covenant is imposed for the benefit of the grantor’s adjoining land of which he remains the owner, the right to enforce the same passes to the grantees of the adjoining land. Anderson v. Marshall-Malaise Lumber Co., 66 N.D. 216, 263 N.W. 721, 1935 N.D. LEXIS 190 (N.D. 1935).

Covenant Not Running With the Land.

District court erred in holding that the intent of the original parties to a deed was controlling and created a perpetual covenant for payments to the sellers of a portion of waste disposal fees generated from a landfill upon the subject property that was binding upon the successor to the buyer’s interest because the covenant did not benefit the land and did not run with the land. Beeter v. Sawyer Disposal LLC, 2009 ND 153, 771 N.W.2d 282, 2009 N.D. LEXIS 161 (N.D. 2009).

Covenant Running With the Land.

Court did not err in finding the planned unit development (PUD) had authority to impose assessments against the owner’s property, because the owner’s warranty deed plainly stated in its legal description that her property was within the PUD, and the amended declaration for the PUD was recorded and the owner was charged with constructive notice of its contents, including provisions imposing covenants running with her property; the owner’s obligations to the PUD were imposed by the covenants running with the land and she was bound by the amended declaration’s relevant provisions by the purchase of her property within the development. Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, 821 N.W.2d 746, 2012 N.D. LEXIS 209 (N.D. 2012).

Invalid Covenants.

Where the covenantor has neither title nor possession, the covenants do not run with the land so as to transfer the cause of action for the breach thereof to remote grantees by deeds purporting to convey the land. Bull v. Beiseker, 16 N.D. 290, 113 N.W. 870, 1907 N.D. LEXIS 68 (N.D. 1907).

Restrictions on Future Use of Land.

One owning the fee has the right to sell his land subject to such reservations or restrictions as to its future use and enjoyment as he may see fit to impose, provided they are not contrary to public policy. Anderson v. Marshall-Malaise Lumber Co., 66 N.D. 216, 263 N.W. 721, 1935 N.D. LEXIS 190 (N.D. 1935).

Collateral References.

Subdivision: omission from deed of restrictive covenant imposed by general plan of subdivision, 4 A.L.R.2d 1364, 1368.

College fraternity’s or sorority’s use of property as violation of restrictive covenant, 7 A.L.R.2d 436.

Alienation: rule limiting duration of restraints on alienation as applicable to covenant in deed restricting use of property, 10 A.L.R.2d 824.

Church as violation of covenant restricting use of property, 13 A.L.R.2d 1239.

Multiple residence as violation of restrictive covenant, 14 A.L.R.2d 1376.

Insurance: covenant of lessee to insure as running with the land, 18 A.L.R.2d 1051.

Affirmative covenants as running with the land, 68 A.L.R.2d 1022.

Conveyance “subject to” restrictions set forth in a recorded or other indicated instrument as imposing the restrictions on the land conveyed, 84 A.L.R.2d 780.

Hospital, sanitarium, home for aged, nursing home or the like as violation of restrictive covenant, 94 A.L.R.2d 726.

Building: what constitutes a “building” within restrictive covenant, 18 A.L.R.3d 850.

Consent: validity and construction of restrictive covenant requiring consent to construction on lot, 40 A.L.R.3d 864.

Building materials: covenant in deed restricting material to be used in building construction, 41 A.L.R.3d 1290.

Architectural style of buildings to be erected on land, validity and construction of restrictive covenant controlling, 47 A.L.R.3d 1232.

Enforcement: who may enforce restrictive covenant or agreement as to use of real property, 51 A.L.R.3d 556.

Change of neighborhood as affecting restrictive covenants precluding use of land for multiple dwelling, 53 A.L.R.3d 492.

Condominium: erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

Use of property for multiple dwellings as violating restrictive covenant permitting property to be used for residential purposes only, 99 A.L.R.3d 985.

Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.

Community residence for mentally disabled persons as violation of restrictive covenant, 41 A.L.R.4th 1216.

Restrictive covenant limiting land use to “private residence” or “private residential purposes”: interpretation and application, 43 A.L.R.4th 71.

Change in character of neighborhood as affecting validity or enforceability of restrictive covenant, 76 A.L.R.5th 337.

Covenant Running With the Land.

Court did not err in finding the planned unit development (PUD) had authority to impose assessments against the owner’s property, because the owner’s warranty deed plainly stated in its legal description that her property was within the PUD, and the amended declaration for the PUD was recorded and the owner was charged with constructive notice of its contents, including provisions imposing covenants running with her property; the owner’s obligations to the PUD were imposed by the covenants running with the land and she was bound by the amended declaration’s relevant provisions by the purchase of her property within the development. Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, 821 N.W.2d 746, 2012 N.D. LEXIS 209 (N.D. 2012).

Covenants Not Running with Land.

Covenants which do not run with the land are covenants of seisin, right to convey, and covenants against encumbrances. Gale v. Frazier, 30 N.W. 138, 4 Dakota 196, 1886 Dakota LEXIS 15 (Dakota 1886).

Covenants of seisin do not run with the land in this state. Bowne v. Wolcott, 1 N.D. 497, 48 N.W. 426, 1891 N.D. LEXIS 15 (N.D. 1891).

District court erred in holding that the intent of the original parties to a deed was controlling and created a perpetual covenant for payments to the sellers of a portion of waste disposal fees generated from a landfill upon the subject property that was binding upon the successor to the buyer’s interest because the covenant did not benefit the land and did not run with the land. Beeter v. Sawyer Disposal LLC, 2009 ND 153, 771 N.W.2d 282, 2009 N.D. LEXIS 161 (N.D. 2009).

Under North Dakota law, the only covenants that ran with the land were those specified by statute and those that were incidental thereto. A federal district court properly held that under North Dakota law, an area of mutual interest agreement (AMI) covenant did not run with the land but rather was a personal covenant that was enforceable only between the original parties to an agreement. Spring Creek Exploration & Prod. Co., LLC v. Hess Bakken Invs. II, LLC, 882 F.3d 1176, 2018 U.S. App. LEXIS 4096 (10th Cir. Colo. 2018).

On review of orders dismissing contract and tort claims against defendants, the covenants at issue did not run with the land because the North Dakota Supreme Court had definitively held that area of mutual interest agreements were personal covenants, not covenants made for direct benefit of property. Spring Creek Exploration & Prod. Co., LLC v. Hess Bakken Invs. II, LLC, 2018 U.S. App. LEXIS 9803 (10th Cir. Colo. Apr. 10, 2018).

Building Restrictions.

A covenant not to erect other than fireproof buildings is for the benefit of the adjoining land and runs with the land. Anderson v. Marshall-Malaise Lumber Co., 66 N.D. 216, 263 N.W. 721, 1935 N.D. LEXIS 190 (N.D. 1935).

Covenant for Payment of Rent.

When lessee exercises his option to purchase, the lessor is no longer entitled to rent unless there is an express stipulation in the lease so providing. Amann v. Frederick, 257 N.W.2d 436, 1977 N.D. LEXIS 161 (N.D. 1977).

Covenant of Seisin.

A covenant of seisin is broken if the covenantor does not have possession, right of possession, and the complete legal title, and when the covenant is broken an immediate cause of action arises. Mercer County State Bank v. Hayes, 34 N.D. 601, 159 N.W. 74, 1916 N.D. LEXIS 62 (N.D. 1916).

Covenant of Warranty.

A covenant of warranty of title in a grant of real property runs with the land. Aure v. Mackoff, 93 N.W.2d 807, 1958 N.D. LEXIS 109 (N.D. 1958).

Covenant Running With the Land.

Court did not err in finding the planned unit development (PUD) had authority to impose assessments against the owner’s property, because the owner’s warranty deed plainly stated in its legal description that her property was within the PUD, and the amended declaration for the PUD was recorded and the owner was charged with constructive notice of its contents, including provisions imposing covenants running with her property; the owner’s obligations to the PUD were imposed by the covenants running with the land and she was bound by the amended declaration’s relevant provisions by the purchase of her property within the development. Wheeler v. Southport Seven Planned Unit Dev., 2012 ND 201, 821 N.W.2d 746, 2012 N.D. LEXIS 209 (N.D. 2012).

Covenants Not Running With Land.

District court erred in holding that the intent of the original parties to a deed was controlling and created a perpetual covenant for payments to the sellers of a portion of waste disposal fees generated from a landfill upon the subject property that was binding upon the successor to the buyer’s interest because the covenant did not benefit the land and did not run with the land. Beeter v. Sawyer Disposal LLC, 2009 ND 153, 771 N.W.2d 282, 2009 N.D. LEXIS 161 (N.D. 2009).

Under North Dakota law, the only covenants that ran with the land were those specified by statute and those that were incidental thereto. A federal district court properly held that under North Dakota law, an area of mutual interest agreement (AMI) covenant did not run with the land but rather was a personal covenant that was enforceable only between the original parties to an agreement. Spring Creek Exploration & Prod. Co., LLC v. Hess Bakken Invs. II, LLC, 882 F.3d 1176, 2018 U.S. App. LEXIS 4096 (10th Cir. Colo. 2018).

On review of orders dismissing contract and tort claims against defendants, the covenants at issue did not run with the land because the North Dakota Supreme Court had definitively held that area of mutual interest agreements were personal covenants, not covenants made for direct benefit of property. Spring Creek Exploration & Prod. Co., LLC v. Hess Bakken Invs. II, LLC, 2018 U.S. App. LEXIS 9803 (10th Cir. Colo. Apr. 10, 2018).

In a case involving an oil-and-gas exploration and production agreement containing an incentive payment for sharing of drilling costs, district court did not err in concluding the incentive payment was not a covenant running with the land under this statute because the shared drilling costs was at best an indirect benefit to the land. Slawson Expl. Co. v. Nine Point Energy, LLC, 966 F.3d 775, 2020 U.S. App. LEXIS 22635 (8th Cir. N.D. 2020).

In an adversary proceeding seeking a declaration of rights under a gas and oil lease service agreement, the service agreement did not run with the land because it was not enough for the parties to call something a covenant that ran with the land, it was not an easement that was an estate in property or appurtenant to property, and the right to control produced oil and gas was not the grant of an interest in real property. Nine Pont Energy Holdings, Inc. v. Caliber Measurement Servs. LLC (In re Nine Point Energy Holdings Inc.), — B.R. —, — B.R. —, 2021 Bankr. LEXIS 1486 (Bankr. D. Del. June 1, 2021).

Covenants Not Specified.

Covenants running with the land are not confined to those specifically named, but include those which are implied. Northern Pac. Ry. v. McClure, 9 N.D. 73, 81 N.W. 52, 1899 N.D. LEXIS 109 (N.D. 1899).

Collateral References.

Restrictive covenant limiting land use to “private residence” or “private residential purposes”: interpretation and application, 43 A.L.R.4th 71.

Assessments on Condominium Units.

Whether the bank would be liable for assessments on unconstructed condominium units purchased at foreclosure depended upon whether or not it agreed, when it took the mortgage, that unconstructed units would be subject to assessment or knew, when it took the mortgage, that unconstructed units would be subject to assessment and acquiesced in such assessment, which were questions of fact precluding summary judgment. Century Park Condominium Ass'n v. Norwest Bank Bismarck, Nat'l Ass'n, 420 N.W.2d 349, 1988 N.D. LEXIS 49 (N.D. 1988).

Nothing in this section or section 47-04.1-11 prohibits assessments on unconstructed units for common expenses or prohibits personal liability of owners for such assessments by agreement; therefore, parties may, by agreement, provide for assessments and personal liability. Century Park Condominium Ass'n v. Norwest Bank Bismarck, Nat'l Ass'n, 420 N.W.2d 349, 1988 N.D. LEXIS 49 (N.D. 1988).

Condominium Ownership in General.

A condominium combines two distinct forms of ownership of real property: (1) exclusive ownership of an individual unit of a multi-unit condominium project, and (2) ownership as a tenant in common of the common area of the project, in proportion to each unit’s interest in the total project. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Condominium association had standing to intervene in a declaratory judgment action to determine what party was entitled to insurance proceeds arising out of damage done to its condominium complex roof, as it had associational standing because it was tasked with representing the interests of its members who lived in the condominium complex. Under the law governing condominiums, N.D.C.C. § 47-04.1-01 et seq., it had to record restrictions that were enforceable against any condominium unit owner, N.D.C.C. § 47-04.1-04, and it had to administer its bylaws to operate the condominium complex for the benefit of its members, N.D.C.C. § 47-04.1-07(1), which included fixing the roof for the benefit of its members. First Int'l Bank & Trust v. Peterson, 2011 ND 87, 797 N.W.2d 316, 2011 N.D. LEXIS 87 (N.D. 2011).

Collateral References.

Premises liability: liability of condominium association or corporation for injury allegedly caused by condition of premises, 45 A.L.R.3d 1171.

Defects: liability of vendor of condominiums for damages occasioned by defective condition thereof, 50 A.L.R.3d 1071.

Covenants: erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

Injury to common areas of condominium development, proper party plaintiff in action for, 69 A.L.R.3d 1148.

Zoning or building regulations as applied to condominiums, 71 A.L.R.3d 866.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association, 73 A.L.R.3d 613.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

Law Reviews.

Condominium: The Theory and the North Dakota Practice, J. Phillip Johnson, 44 N.D. L. Rev. 345 (1968).

Condominium Practice: A Second Look, J. Phillip Johnson, 51 N.D. L. Rev. 761 (1975).

Time Share Ownership: A Primer, 57 N.D. L. Rev. 151 (1981).

Amendment to Declaration of Restrictions.

This section prohibited the retroactive application of an amendment to the declaration of restrictions, which prohibited the leasing of the condominium units to nonowners except in limited circumstances, to those persons who had purchased a unit prior to the promulgation of the amendment and who had not acquiesced in such amendment. Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 1981 N.D. LEXIS 326 (N.D. 1981).

Enforcement of Restrictions.

A prerequisite to the enforceability of a restriction is that the restriction be recorded prior to the conveyance of any condominium unit; restriction adopted after the purchase of a condominium unit would not be enforceable against the purchaser except through the purchaser’s acquiescence. Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 1981 N.D. LEXIS 326 (N.D. 1981).

Condominium association had standing to intervene in a declaratory judgment action to determine what party was entitled to insurance proceeds arising out of damage done to its condominium complex roof, as it had associational standing because it was tasked with representing the interests of its members who lived in the condominium complex. Under the law governing condominiums, N.D.C.C. § 47-04.1-01 et seq., it had to record restrictions that were enforceable against any condominium unit owner, N.D.C.C. § 47-04.1-04, and it had to administer its bylaws to operate the condominium complex for the benefit of its members, N.D.C.C. § 47-04.1-07(1), which included fixing the roof for the benefit of its members. First Int'l Bank & Trust v. Peterson, 2011 ND 87, 797 N.W.2d 316, 2011 N.D. LEXIS 87 (N.D. 2011).

Restriction Defined.

In the absence of a statutory definition, supreme court held term “restrictions” to mean restrictive covenants. Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 1981 N.D. LEXIS 326 (N.D. 1981).

Waiver of Right to Notice of Restriction.

Knowledge of the provisions for amendment of the declaration of restrictions does not, without more, constitute the degree of knowledge necessary to establish a voluntary and intentional relinquishment of the statutory right to notice of a restriction prior to the purchase of a condominium unit. Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 1981 N.D. LEXIS 326 (N.D. 1981).

Condominium Ownership in General.

A condominium combines two distinct forms of ownership of real property: (1) exclusive ownership of an individual unit of a multi-unit condominium project, and (2) ownership as a tenant in common of the common area of the project, in proportion to each unit’s interest in the total project. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Interior Surfaces.

The interior surfaces of the perimeter walls, bearing walls, floors and ceilings of the individual units are not common areas, and unit owners are individually responsible for repairs to those areas of their unit. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Suit for Damages to Common Elements.

This chapter does not specifically authorize a condominium association to bring suit on behalf of unit owners with regard to damages to the common elements. Jablonsky v. Klemm, 377 N.W.2d 560, 1985 N.D. LEXIS 432 (N.D. 1985).

Collateral References.

Personal liability of owner of condominium unit to one sustaining personal injuries or property damage by condition of common areas, 39 A.L.R.4th 98.

Amendments.

Where condominium association filed a Declaration of Project, and it later amended its declaration to restrict pet ownership and where the declaration of covenants and restrictions specified that the association’s bylaws were annexed to the declaration, there was no support for plaintiff pet owner’s argument that the amendments that prohibited pet ownership were not properly adopted, or for his argument that 100 percent of the mortgage owners must have approved the amendments as it was undisputed that the by-laws allowed for amendments with approval of a two-thirds majority. Riverside Park Condos. Unit Owners Ass'n v. Lucas, 2005 ND 26, 691 N.W.2d 862, 2005 N.D. LEXIS 26 (N.D. 2005).

Subject Matter of Bylaws.

Bylaws have to relate to “maintenance of common elements, limited elements where applicable, assessment of expenses, payment of losses, division of profits, disposition of hazard insurance proceeds and similar matters”; prohibiting unit owners from leasing of a unit to nonowners is not within the scope of the subject matter of a bylaw and is, instead, governed by the provisions of section 47-04.1-04, relating to restrictions. Breene v. Plaza Tower Ass'n, 310 N.W.2d 730, 1981 N.D. LEXIS 326 (N.D. 1981).

Condominium association had standing to intervene in a declaratory judgment action to determine what party was entitled to insurance proceeds arising out of damage done to its condominium complex roof, as it had associational standing because it was tasked with representing the interests of its members who lived in the condominium complex. Under the law governing condominiums, N.D.C.C. § 47-04.1-01 et seq., it had to record restrictions that were enforceable against any condominium unit owner, N.D.C.C. § 47-04.1-04, and it had to administer its bylaws to operate the condominium complex for the benefit of its members, N.D.C.C. § 47-04.1-07(1), which included fixing the roof for the benefit of its members. First Int'l Bank & Trust v. Peterson, 2011 ND 87, 797 N.W.2d 316, 2011 N.D. LEXIS 87 (N.D. 2011).

Collateral References.

Validity and construction of condominium association’s regulations governing members’ use of common facilities, 72 A.L.R.3d 308.

Validity, construction, and application of statutes, or of condominium association’s bylaws or regulations, restricting number of units that may be owned by single individual or entity, 39 A.L.R.4th 88.

Condominium association’s liability to unit owner for injuries caused by third person’s criminal conduct, 59 A.L.R.4th 489.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners, 76 A.L.R.4th 295.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

Amendments.

Where condominium association filed a Declaration of Project, and it later amended its declaration to restrict pet ownership and where the declaration of covenants and restrictions specified that the association’s bylaws were annexed to the declaration, there was no support for plaintiff pet owner’s argument that the amendments that prohibited pet ownership were not properly adopted, or for his argument that 100 percent of the mortgage owners must have approved the amendments as it was undisputed that the by-laws allowed for amendments with approval of a two-thirds majority. Riverside Park Condos. Unit Owners Ass'n v. Lucas, 2005 ND 26, 691 N.W.2d 862, 2005 N.D. LEXIS 26 (N.D. 2005).

Business-Judgment Rule.

The business-judgment rule applies to a board’s actions regarding repairs to the common areas of a condominium; where a challenge is made by an individual owner to an action of a condominium board, absent claims of fraud, self-dealing, unconscionability or other misconduct, the court should limit its inquiry to whether the board’s action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the condominium. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Owner’s Right to Sue Association.

A unit owner may sue the condominium association for failure to comply with the condominium’s bylaws. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Collateral References.

Right of condominium association’s management or governing body to inspect individual units, 41 A.L.R.4th 730.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

Bank Remedy.

Voluntariness implies choices and reasonable alternatives, and an act of necessity is not a voluntary act; thus, where a mortgage was issued in accordance with the Short-Term Mortgage Redemption Act, N.D.C.C. ch. 32-19.1, upon default, the bank’s only remedy, if any, was through foreclosure, and when the bank purchased the mortgaged property to minimize its loss, the trial court erred in determining that the bank’s purchase was voluntary, subjecting it to liability for the assessments for common expenses on unimproved lots. Century Park Condominium Ass'n v. Norwest Bank Bismarck, Nat'l Ass'n, 420 N.W.2d 349, 1988 N.D. LEXIS 49 (N.D. 1988).

Common Charges.

All unit owners are obligated to pay the common charges assessed against their unit, and the board may take prompt action to collect any common charges which remain unpaid for more than thirty days after the due date, or to foreclose the lien for common expenses. Agassiz W. Condominium Ass'n v. Solum, 527 N.W.2d 244, 1995 N.D. LEXIS 18 (N.D. 1995).

Condominiums.

Nothing in N.D.C.C. § 47-04.1-01 and this section prohibits assessments on unconstructed units for common expenses or prohibits personal liability of owners for such assessments by agreement; therefore, parties may, by agreement, provide for assessments and personal liability. Century Park Condominium Ass'n v. Norwest Bank Bismarck, Nat'l Ass'n, 420 N.W.2d 349, 1988 N.D. LEXIS 49 (N.D. 1988).

Disparity in the benefits received by owners of constructed and unconstructed condominium units supported the inference that a provision of the condominium declaration was ambiguous, creating a genuine issue of fact as to the declaration’s intent to limit liability of owners of unconstructed units for assessments. Century Park Condominium Ass'n v. Norwest Bank Bismarck, Nat'l Ass'n, 420 N.W.2d 349, 1988 N.D. LEXIS 49 (N.D. 1988).

Collateral References.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

Personal liability of owner of condominium unit to one sustaining personal injuries or property damage by condition of common areas, 39 A.L.R.4th 98.

Liability of owner of unit in condominium, recreational development, time-share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner, 39 A.L.R.4th 114.

Validity and enforceability of condominium owner’s covenant to pay dues or fees to sports or recreational facility, 39 A.L.R.4th 129.

“Easement” Defined.

An easement is a charge or burden upon one estate, the servient, for the benefit of another, the dominant. Johnson v. Armour & Co., 69 N.D. 769, 291 N.W. 113, 1940 N.D. LEXIS 206 (N.D. 1940).

Enumerated Easements Not Exclusive.

The enumerated easements in this statute are not exclusive and an easement can be granted to the public for park purposes or for use as public grounds by dedication at common law. Cole v. Minnesota Loan & Trust Co., 17 N.D. 409, 117 N.W. 354, 1908 N.D. LEXIS 68 (N.D. 1908).

Federal Easement for Waterfowl Production.

Property interest conveyed to United States for the purpose of waterfowl production in the prairie pothole area, restricting the owner from changing the natural contour or drainage of his land, whether or not a valid easement under North Dakota law, is a valid conveyance under federal law, and vested in the United States the rights stated therein. United States v. Albrecht, 496 F.2d 906, 1974 U.S. App. LEXIS 8747 (8th Cir. N.D. 1974).

Mineral Lessee.

Lessee under a mineral lease acquires an easement in surface estate for purpose of developing its mineral interest. Slaaten v. Cliff's Drilling Co., 748 F.2d 1275, 1984 U.S. App. LEXIS 16355 (8th Cir. N.D. 1984).

Watercourses.

Where a lower riparian owner conveys to the upper riparian owner the right to discharge waste, sewage and refuse into the stream, and agrees to permit the same to be carried off by the flow of the stream through the premises of the lower riparian owner, the agreement creates an easement on the land of the lower riparian owner. Johnson v. Armour & Co., 69 N.D. 769, 291 N.W. 113, 1940 N.D. LEXIS 206 (N.D. 1940).

Collateral References.

Electric line, correlative rights of dominant and servient owners in right of way for, 6 A.L.R.2d 205.

Misuse, abandonment, waiver or forfeiture of easement on ground of, 16 A.L.R.2d 609.

Persons entitled to use right of way created by express grant, effect of provisions designating or referring to, 20 A.L.R.2d 796.

Tenant: easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Party wall, right to increase height of, 24 A.L.R.2d 1053.

Party walls, loss by nonuser of private easement as to, 25 A.L.R.2d 1265, 1320.

Liens: easement, servitude or restrictive covenant as affected by enforcement of assessment or improvement liens, 26 A.L.R.2d 873.

Pipeline: correlative rights of dominant and servient owners in right of way for, 28 A.L.R.2d 626.

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461, 490.

Foreclosure of mortgage or trust deed as affecting easement claimed in, over or under property, 46 A.L.R.2d 1197.

Hunting and fishing: right created by private grant or reservation of right to hunt or fish on another’s land, 49 A.L.R.2d 1395.

Easement by prescription in artificial drains, pipes, or sewers, 55 A.L.R.2d 1144.

Dedication: right of owner of servient tenement subject to right of way to dedicate his land, 69 A.L.R.2d 1236.

Relocation of easements (other than those originally arising by necessity); rights as between private parties, 80 A.L.R.2d 743.

Extent and reasonableness of use of private way in exercise of easement granted in general terms, 3 A.L.R.3d 1256.

Expenses: right of servient owner to maintain, improve or repair easement of way at expense of dominant owner, 20 A.L.R.3d 1026.

Gate or fence, right to maintain across right of way, 52 A.L.R.3d 9.

Locating easement of way created by necessity, 36 A.L.R.4th 769.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

Loss of private easement by nonuse, 62 A.L.R.5th 219.

Application.

Summary judgment was properly entered against appellant in a case alleging trespass and other causes of action because a 1953 permit issued to another constituted an easement, rather than a license, since it was not revocable at the will of a landowner; under N.D.C.C. § 47-10-11, a transfer of real property passed all easements, but a license was generally not assignable. Moreover, N.D.C.C. § 47-05-02.1(1) only applied to easements that became binding after July 1, 1977. Riverwood Commer. Park, LLC v. Std. Oil Co., 2011 ND 95, 797 N.W.2d 770, 2011 N.D. LEXIS 95 (N.D. 2011).

Deed Language.

Warranty deed did not create or reserve an express roadway easement by using the words “subject to” because they connoted a limitation on a grantor’s warranty, and not a reservation of rights. The evidence permitted an inference that a dirt trail was in existence before the warranty deed at issue was executed and that the grantor intended to limit the warranty because of the possible existence of an implied easement. Wagner v. Crossland Constr. Co., 2013 ND 219, 2013 N.D. LEXIS 223 (N.D. 2013).

Railroads.

Order holding that a railroad company had a valid easement on an owner’s property was upheld where the easement was properly described under N.D.C.C. § 47-05-02.1(1); the railroad tracks were in place when the owner obtained the property well over a decade ago and remained in place. Burlington Northern R.R. v. Fail, 2008 ND 114, 751 N.W.2d 188, 2008 N.D. LEXIS 115 (N.D. 2008).

Trespass.

April 2007 pipeline easement was ambiguous, and the district court erred in construing the easement as a matter of law. However, the district court did not err in ruling that an energy company's use of plaintiff's private road to access a second pipeline on plaintiffs' land was not authorized by a 2008 road use agreement and was a trespass. Krenz v. XTO Energy, Inc., 2017 ND 19, 890 N.W.2d 222, 2017 N.D. LEXIS 32 (N.D. 2017).

Waterfowl Production Areas.

To the extent this section’s limitation on the duration of easements encumbers the federal government’s acquisition of waterfowl production areas under the Migratory Bird Hunting and Conservation Stamp Act, 16 USCS § 718 et seq., it is invalid. United States v. North Dakota, 650 F.2d 911, 1981 U.S. App. LEXIS 12659 (8th Cir. N.D. 1981), aff'd, 460 U.S. 300, 103 S. Ct. 1095, 75 L. Ed. 2d 77, 1983 U.S. LEXIS 23 (U.S. 1983).

Wetlands Easements Acquired by United States.

This section, which limits nonappurtenant easements to a maximum term of 99 years, may not be applied to wetlands easements acquired by the United States under consents previously given pursuant to the Stamp Act, 16 USCS § 718 et seq. North Dakota v. United States, 460 U.S. 300, 103 S. Ct. 1095, 75 L. Ed. 2d 77, 1983 U.S. LEXIS 23 (U.S. 1983).

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

Article: Limitations on Easements In North Dakota May Have Unintended Consequences for Qualified Conservation Easement Charitable Contributions, 87 N.D. L. Rev. 343 (2011).

Implied Easements.

Plaintiffs failed to sustain their burden of proving an implied easement to their property, because the principles of implied easement are applicable between the original owners and their immediate grantees, and plaintiffs’ immediate grantees lacked knowledge of plaintiffs’ use at the time they bought the property from the plaintiffs. Lutz v. Krauter, 553 N.W.2d 749, 1996 N.D. LEXIS 211 (N.D. 1996).

Ownership by One Spouse.

This section applies where a spouse who is the sole owner of the servient tenement attempts to convey an easement over the servient tenement to both spouses as owners of the dominant tenement. Lutz v. Krauter, 553 N.W.2d 749, 1996 N.D. LEXIS 211 (N.D. 1996).

Extent of Easement.

If an easement over a neighboring lot is ultimately found to be necessary, the landowner is not automatically entitled to access giving him the “best” use of his land; rather, the scope of the easement granted depends not only on necessity, but also on whether it is consistent with the full reasonable enjoyment of the servient estate (i.e., the neighboring lot). Griffeth v. Eid, 1998 ND 38, 573 N.W.2d 829, 1998 N.D. LEXIS 30 (N.D. 1998).

Present use of a lane that was built on plaintiffs' property was consistent with the scope of an easement granted for highway purposes. Evidence supported that the lane was constructed to alleviate safety concerns because of congestion due to trucks waiting on the highway to access an oil-truck offloading facility. Ceynar v. Tesoro Logistics LP, 2017 ND 112, 894 N.W.2d 374, 2017 N.D. LEXIS 111 (N.D. 2017).

Question of Fact.

The determination of whether a particular use of an easement is reasonable is a question of fact. The supreme court’s review thereof is therefore limited to a determination of whether the finding is clearly erroneous. Radspinner v. Charlesworth, 369 N.W.2d 109, 1985 N.D. LEXIS 332 (N.D. 1985).

Reference to Grant.

Extent of an express easement must be determined by the terms of the grant; however, it may be necessary for the court to look at custom and usage to determine what was meant by the general terms used in the grant at the time it was executed. Minnkota Power Coop. v. Lake Shure Properties, 295 N.W.2d 122, 1980 N.D. LEXIS 278 (N.D. 1980).

Collateral References.

Reasonableness of use: extent and reasonableness of use of private way in exercise of easement granted in general terms, 3 A.L.R.3d 1256.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

Abandonment.

Abandonment of an easement resting in an express grant must be established by clear and unequivocal evidence of decisive and conclusive acts. Harry E. McHugh, Inc. v. Haley, 61 N.D. 359, 237 N.W. 835, 1931 N.D. LEXIS 284 (N.D. 1931).

Nonuser.

A servitude resting in an express grant is not extinguished by a nonuser. Harry E. McHugh, Inc. v. Haley, 61 N.D. 359, 237 N.W. 835, 1931 N.D. LEXIS 284 (N.D. 1931); Royse v. Easter Seal Soc'y for Crippled Children & Adults, 256 N.W.2d 542, 1977 N.D. LEXIS 147 (N.D. 1977).

Where a highway within the limits of an incorporated city has been established by prescription, nonuser for the period prescribed for establishing a highway by prescription will vacate the highway. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Ownership by One Spouse.

No easement was created where the spouse who was the sole owner of the servient tenement attempted to convey an easement over the servient tenement to both spouses as owners of the dominant tenement. Lutz v. Krauter, 553 N.W.2d 749, 1996 N.D. LEXIS 211 (N.D. 1996).

Collateral References.

Easement or servitude as affected by enforcement of assessment or improvement liens, 26 A.L.R.2d 873.

Loss of rights in way acquired by grantee under conveyance of land as bounded by road, street, or other way, 46 A.L.R.2d 461, 490.

Foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

Loss of private easement by nonuse, 62 A.L.R.5th 219.

What constitutes, and remedies for, misuse of easement, 111 A.L.R.5th 313.

Easement over Railroad Bed.

Where a railroad crossing is put in and used permissively, no right to an easement over the railroad bed is acquired. Lincoln v. Great N. Ry., 26 N.D. 504, 144 N.W. 713 (N.D. 1913).

Holder by Transfer.

Occupancy for a period short of the statutory limitations does not confer title against the holder of a title by transfer. Goss v. Herman, 20 N.D. 295, 127 N.W. 78, 1910 N.D. LEXIS 84 (N.D. 1910).

Collateral References.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 A.L.R.4th 462.

Partial Occupation of Tract.

Where there has been an entry upon land under color of title by deed, although the actual settlement and improvements are on only a small portion of the tract, yet, if no one possesses the rest of the tract, the law presumes the entry to be coextensive with the grant. Smith v. Gale, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521 (1892), aff’g Gale v. Shillock, 4 Dakota 182, 29 N.W. 661 (1886), and Gale v. Shillock, 30 N.W. 138, 4 Dakota 196 (1886).

Pollution of Stream.

A city does not obtain a prescriptive right to pollute the waters of a river by emptying sewage therein for less than twenty years. Conlon v. City of Dickinson, 72 N.D. 190, 5 N.W.2d 411, 1942 N.D. LEXIS 130 (N.D. 1942).

Relation Back.

Title by prescription relates back to the inception of the use. Conlin v. Metzger, 77 N.D. 620, 44 N.W.2d 617, 1950 N.D. LEXIS 157 (N.D. 1950).

Collateral References.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 A.L.R.4th 462.

Constitutionality.

The statute is retrospective but is not unconstitutional for that reason under the due process clause as against one who had an opportunity after its passage to assert a claim to the land or pay the taxes thereon before his title was extinguished. Schauble v. Schulz, 137 F. 389, 69 C.C.A. 581 (8th Cir. 1905).

Ancestor’s Possession Not Adverse to Heir.

Where land was held in joint tenancy by husband and wife and husband’s will made ineffective attempt to give wife a life estate with remainder to his children by a previous marriage, wife’s possession of the property after husband’s death and brief possession by his children thereafter did not pass title to children by adverse possession since wife’s possession was not hostile to interests of her sisters who were her heirs as well as her residuary devisees, there being no reason for sisters to believe that she was other than fee owner. Cranston v. Winters, 238 N.W.2d 647, 1976 N.D. LEXIS 192 (N.D. 1976).

Breach of Warranty.

Since the only “title” instrument under which a partnership could make an adverse possession claim under this provision was the unrecorded purchase memorandum it received from the defendant, and its ownership claim was therefore “by, through, or under” the defendant, its adverse possession claim against the adjacent lot’s owner constituted a breach of the defendant’s special warranty against claims against title by, under, or through himself, and provided the legal basis for an award of damages to the adjacent lot’s owner. State Bank & Trust v. Brekke, 1999 ND 212, 602 N.W.2d 681, 1999 N.D. LEXIS 230 (N.D. 1999).

Burden of Proof.

The person claiming property by adverse possession by virtue of a title has the burden to prove that he, either alone or including those under whom he claims, has been in actual open adverse and undisputed possession for a period of ten years and that he, either alone or including those under whom he claims, has paid all taxes and assessments legally levied thereon for such period. Simons v. Tancre, 321 N.W.2d 495, 1982 N.D. LEXIS 286 (N.D. 1982).

The burden of proving adverse possession rests with the person alleging it and must be established by clear and convincing evidence. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Quieting title to property in favor of property owners and dismissal of a neighbor's claim for adverse possession was appropriate because the neighbor failed to establish by clear and convincing evidence that the neighbor, or the neighbor's predecessors-in-interest, had actual, visible, and continuous possession of the disputed property for the required period of time. Moody v. Sundley, 2015 ND 204, 868 N.W.2d 491, 2015 N.D. LEXIS 218 (N.D. 2015).

Color of Title.

A tax deed constitutes color of title even if the tax upon which it was issued was void by reason of irregularities in the tax proceedings. Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 1901 N.D. LEXIS 31 (N.D. 1901).

Tax deed valid on its face constitutes color of title. Stiles v. Granger, 17 N.D. 502, 117 N.W. 777, 1908 N.D. LEXIS 78 (N.D. 1908); McGee v. Stokes' Heirs at Law, 76 N.W.2d 145, 1956 N.D. LEXIS 110 (N.D. 1956).

Possession of land under a parol gift, accompanied by the delivery of a patent evidencing the donor’s title, does not constitute color of title which will enable the donee to obtain the protection of the ten-year statute of limitations. Urbanec v. Urbanec, 43 N.D. 127, 174 N.W. 880, 1919 N.D. LEXIS 35 (N.D. 1919).

A tax deed issued by the county auditor, although void on its face, is sufficient to confer on the grantee color of title which will support actual adverse possession. Grandin v. Gardiner, 63 N.W.2d 128, 1954 N.D. LEXIS 66 (N.D. 1954).

A decree of heirship which designates the heirs entitled to certain realty is color of title even if the proceedings on which it is based are subsequently determined to be invalid. Chapin v. Letcher, 93 N.W.2d 415, 1958 N.D. LEXIS 101 (N.D. 1958).

A tax deed constitutes color of title sufficient to support a title acquired under this section as against a royalty interest severed from the land after attachment of the tax lien but before issuance of the tax deed. Payne v. A. M. Fruh Co., 98 N.W.2d 27, 1959 N.D. LEXIS 96 (N.D. 1959).

Adverse claimant who did not possess any deeds and did not prove payment of taxes on any of property claimed failed to satisfy burden of proving color of title. Martin v. Rippel, 152 N.W.2d 332, 1967 N.D. LEXIS 82 (N.D. 1967).

Where plaintiff’s successor in interest purchased the property as a successor in interest to the former owners at a special repurchase proceeding provided for by section 19, Chapter 286, S.L. 1941, and not as an innocent purchaser at a regular tax sale, and where the special warranty deed given pursuant to the repurchase proceeding reserved the mineral estate to the grantors and was part of the record chain of title, plaintiff and her successor in interest did not possess the mineral estate under color of title and her possession of the surface estate did not constitute possession of the mineral estate sufficient for adverse possession. Sickler v. Pope, 326 N.W.2d 86, 1982 N.D. LEXIS 376 (N.D. 1982).

Where neither party challenged the determination by the trial court that the defendant acquired title to encroached property by adversely possessing it under color of title for ten years, the defendant partnership owned the entire building and land upon which it was situated by open and notorious possession. State Bank & Trust v. Brekke, 1999 ND 212, 602 N.W.2d 681, 1999 N.D. LEXIS 230 (N.D. 1999).

Construction of Cabins.

The construction of cabins held to constitute conduct so directly hostile and unmistakably clear as to satisfy the necessary requirements for adverse possession. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Cotenants.

Mere possession itself and the payment of taxes by a tenant in common is presumed to be for the benefit of all tenants in common, and the appropriation of rents and profits will not constitute adverse possession on the part of a tenant in common. Simons v. Tancre, 321 N.W.2d 495, 1982 N.D. LEXIS 286 (N.D. 1982).

A cotenant may hold adversely to other cotenants if his possession is such that it meets the requirements of the law of adverse possession; while one cotenant may oust another, it must be by acts so distinctly hostile to the rights of the other cotenants that the intent to dispossess is clear and unmistakable. Simons v. Tancre, 321 N.W.2d 495, 1982 N.D. LEXIS 286 (N.D. 1982).

Cotenant’s recording of oil and gas leases in which he was the only lessor, an affidavit stating that he was the sole and only owner, and a contract for deed for the entire property in which he was the only grantor constituted only constructive notice of his ouster of the other cotenants and was not sufficient notice to establish a hostile ouster for purposes of establishing title by adverse possession against his other cotenants. Nelson v. Christianson, 343 N.W.2d 375, 1984 N.D. LEXIS 237 (N.D. 1984).

Evidence Sufficient.

Trial court did not err in finding plaintiff acquired title to property through executed parol gift from his parents, and occupancy by adverse possession. Mertz v. Arendt, 1997 ND 113, 564 N.W.2d 294, 1997 N.D. LEXIS 106 (N.D. 1997).

Knowledge.

Actual knowledge of the adverse possession is not necessary if there is a course of conduct directly hostile and these acts of hostility are unmistakably clear. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

The defendant’s knowledge and conduct regarding the encroachment of property was not relevant to his partnership’s ownership by adverse possession where neither party challenged the trial court’s determination that the partnership owned the encroached property by adverse possession, and provided no equitable basis for an award of damages to the owner of the adjacent lot for its loss of property. State Bank & Trust v. Brekke, 1999 ND 212, 602 N.W.2d 681, 1999 N.D. LEXIS 230 (N.D. 1999).

Length of Possession.

The doctrine of tacking possession is not applicable under this statute. J. B. Streeter, Jr., Co. v. Fredrickson, 11 N.D. 300, 91 N.W. 692, 1902 N.D. LEXIS 216 (N.D. 1902); McGee v. Stokes' Heirs at Law, 76 N.W.2d 145, 1956 N.D. LEXIS 110 (N.D. 1956).

Title to real property in this state may be acquired by the adverse, open, and exclusive undisputed possession thereof for a period of ten years under claim of title and by paying all taxes assessed against the land for such period. Woolfolk v. Albrecht, 22 N.D. 36, 133 N.W. 310, 1911 N.D. LEXIS 43 (N.D. 1911); Wright v. Jones, 23 N.D. 191, 135 N.W. 1120, 1912 N.D. LEXIS 81 (N.D. 1912).

Legal owners of property invalidly held under void tax deed were not guilty of laches because they failed to assert invalidity until eight years after date of tax from county. Strom v. Giske, 68 N.W.2d 838, 1954 N.D. LEXIS 120, 1955 N.D. LEXIS 94 (N.D. 1954).

The ten-year period is to be reckoned from the time that the adverse possession begins, and not from the time the first payment of taxes is made. Tarnovsky v. Security State Bank, 77 N.W.2d 828, 1956 N.D. LEXIS 131 (N.D. 1956); Schauble v. Schulz, 137 F. 389, 69 C.C.A. 581 (8th Cir. 1905).

One who has been in actual, open, adverse, and undisputed possession of land under color of title for a period of ten years and has paid all taxes and assessments legally levied thereon has a valid title thereto. Anderson v. Shelton, 92 N.W.2d 166, 1958 N.D. LEXIS 89 (N.D. 1958); Severson v. Simon, 110 N.W.2d 289, 1961 N.D. LEXIS 84 (N.D. 1961).

One who is in adverse possession of land and who later and upon the death of the owner, intestate, acquires by inheritance an interest therein as a cotenant with other heirs but continues in exclusive possession under his original adverse entry is not required to perform any other or further act of ouster in order to maintain his adverse possession against his cotenants. The continuity of his original adverse possession is not interrupted by his acquisition of an interest in the property or by the cotenancy. Anderson v. Shelton, 92 N.W.2d 166, 1958 N.D. LEXIS 89 (N.D. 1958).

Mineral Estates.

Trial court holding that surface estate owner’s extraction and use of coal did not constitute adverse possession of the severed mineral estate was not clearly erroneous where the extraction of the coal was done by dynamite blasting on a small scale and the coal was used only for domestic purposes. Burlington N. v. Hall, 322 N.W.2d 233, 1982 N.D. LEXIS 319 (N.D. 1982).

Where there is a severance of the mineral estate from the surface, the title to one cannot be acquired by adverse possession of the other, and possession of the surface estate under color of title with payment of taxes for the statutory period does not constitute possession of the severed mineral estate and is not adverse to the title holder of the mineral estate. Burlington N. v. Hall, 322 N.W.2d 233, 1982 N.D. LEXIS 319 (N.D. 1982).

Where the mineral estate had been severed from the surface estate, possession of the surface estate by a party and her predecessors in interest did not constitute possession of the severed mineral estate sufficient for adverse possession; such party and her predecessors in interest would need to have had open, adverse, and undisputed possession of the mineral estate for a period of ten years in order to claim title to the mineral estate by adverse possession. Sickler v. Pope, 326 N.W.2d 86, 1982 N.D. LEXIS 376 (N.D. 1982).

Party, who received a deed for the property pursuant to a contract for deed executed by only one cotenant and who established title to the entire surface estate by adverse possession against the other cotenants’ interests, did not establish title to the minerals by adverse possession where there was no actual possession of the minerals, and thus no ouster of the other cotenants’ interests in the minerals. Nelson v. Christianson, 343 N.W.2d 375, 1984 N.D. LEXIS 237 (N.D. 1984).

Minor, Adverse Possession Against.

The title to the land becomes valid after the payment of taxes and adverse possession for ten years as against minors as well as against adults, notwithstanding the provisions of C.L. 1913, § 7372 (28-01-14). Schauble v. Schulz, 137 F. 389, 69 C.C.A. 581 (8th Cir. 1905).

Municipal Alley.

Where plaintiff in an action to quiet title held land that formerly served as a city alleyway under color of title, possession of the property adverse to the city for the statutory period did not divest the city of its title in the property, even though plaintiff’s actions with respect thereto satisfied all the statutory requirements. Smith v. Anderson, 144 N.W.2d 530, 1966 N.D. LEXIS 107 (N.D. 1966).

Municipal Streets.

A municipality cannot be divested of the title of its streets held in trust for public use by adverse possession for the prescriptive period. City of Jamestown v. Miemietz, 95 N.W.2d 897, 1959 N.D. LEXIS 78 (N.D. 1959).

Question of Fact.

The determination of whether or not there has been an adverse use is a question of fact, which will not be set aside on appeal unless it is clearly erroneous. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Tacking Possessions.

The doctrine of tacking possessions, generally applicable under the statute of limitations for the recovery of real estate, does not apply under this statute, and such statute does not permit one claiming title thereunder to make out otherwise insufficient adverse possession and payment of taxes by adding to his possession the prior adverse possession of his grantor. J. B. Streeter, Jr., Co. v. Fredrickson, 11 N.D. 300, 91 N.W. 692, 1902 N.D. LEXIS 216 (N.D. 1902).

Taxes.

The claimant to title by adverse possession has fully complied with the law when he has paid the taxes upon the land, even though they have also been paid by the holder of the record title thereto. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

What Constitutes Adverse Possession.

A cutting of hay upon wild prairie land, and paying taxes upon the land, does not establish a title under adverse possession. Page v. Smith, 33 N.D. 369, 157 N.W. 477, 1916 N.D. LEXIS 103 (N.D. 1916).

To establish a claim against cotenants, an adverse tenant must show adverse and hostile possession constituting ouster of the cotenants. Stoll v. Gottbreht, 45 N.D. 158, 176 N.W. 932, 1920 N.D. LEXIS 113 (N.D. 1920).

If a deed executed by a cotenant purports to convey full title to the land to a stranger and the grantee records his deed and enters into possession of all the land described in the deed, the possession of the grantee is adverse to the other cotenants and is under color of title. Morrison v. Hawksett, 64 N.W.2d 786, 1954 N.D. LEXIS 79 (N.D. 1954).

A county in possession of real estate under a void tax deed does not hold adversely against persons having the right to redeem from the tax sale. Accola v. Miller, 76 N.W.2d 517, 1956 N.D. LEXIS 116, 1956 N.D. LEXIS 117 (N.D. 1956).

When a tenant has surrendered possession to the landlord resulting in a complete termination of the lease, possession obtained thereafter under a reentry made under color of title from a different source shows hostility to and is adverse to the former landlord. Wilson v. Divide County, 76 N.W.2d 896, 1956 N.D. LEXIS 121 (N.D. 1956).

The possession of land or minerals under one tenant in common is also the possession of the other cotenants. Smith v. Nyreen, 81 N.W.2d 769, 1957 N.D. LEXIS 111 (N.D. 1957).

Where fence along north edge of disputed triangle of land was not erected for purpose of excluding adjoining landowner and where land, which was low and marshy and best suited for hunting, was used with larger tract for grazing and allowed to remain in wild state with fence having almost completely disappeared at time of quiet title trial, use of land was not sufficient to establish that it was held adversely, and no hostile possession was shown, so that title was not acquired by adverse possession. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Royalty interests cannot be possessed until the minerals have been extracted from the ground, at which point they become personal property. Therefore, royalty interests cannot be possessed for purposes of the statute of limitations in N.D.C.C. § 28-01-05 or for purposes of adverse possession under N.D.C.C. § 47-06-03. Siana Oil & Gas Co., LLC v. Dublin Co., 2018 ND 164, 915 N.W.2d 134, 2018 N.D. LEXIS 177 (N.D. 2018).

Collateral References.

Religious society, adverse possession by, 4 A.L.R.2d 123.

Mortgagee before foreclosure, adverse possession by, 7 A.L.R.2d 1131.

Recording statutes as affecting title by adverse possession, 9 A.L.R.2d 850.

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

Seasonal possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Cotenants: possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, as affected by nature or extent of possession, 32 A.L.R.2d 1214, 1223.

Mines or minerals, acquisition of title to, by adverse possession, 35 A.L.R.2d 124.

Mortgage foreclosure: possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

Landlord and tenant: adverse possession of landlord as affected by tenant’s recognition of title of third person, 38 A.L.R.2d 826.

Tax deed: void tax deed, tax sale certificate and the like as constituting color of title, 38 A.L.R.2d 986.

Grantor’s possession as adverse possession against grantee, 39 A.L.R.2d 353.

Reputation as to ownership or claim as admissible on question of adverse possession, 40 A.L.R.2d 770.

Cemetery or graveyard authorities, acquisition of title to ground through adverse possession by, 41 A.L.R.2d 925.

Parol gift of land, adverse possession by donee under, 43 A.L.R.2d 6.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs, 43 A.L.R.2d 1061.

Marketable title: title by or through adverse possession as marketable, 46 A.L.R.2d 544.

Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R.2d 600.

Trusts: possession and treatment of trust realty by trustee as sufficient repudiation of express trust to cause statute of limitations to run, 54 A.L.R.2d 13, 147.

Public property: acquisition by adverse possession or use of public property held by governmental unit otherwise than for streets, alleys, parks or common, 55 A.L.R.2d 554.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

Judgment or decree as constituting color of title, 71 A.L.R.2d 404.

Executor or administrator, adverse possession of, as against deceased owner’s heirs or devisees, 73 A.L.R.2d 1097.

Boundaries: adverse possession involving ignorance or mistake as to boundaries — modern views, 80 A.L.R.2d 1171.

Cotenants, adverse possession between, 82 A.L.R.2d 5.

Railroads: adverse possession of railroad’s right of way by another, 95 A.L.R.2d 468, 479.

Encroachment: adverse possession based on encroachment of building or other structure, 2 A.L.R.3d 1005.

State or other governmental unit or agency, acquisition of title to land by adverse possession by, 18 A.L.R.3d 678.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of eminent domain, 48 A.L.R.3d 818.

Public use: use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R.3d 1182.

Tolling statute: owner’s surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.

Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession, 39 A.L.R.4th 1148.

Law Reviews.

North Dakota’s Ten-Year Statute of Limitations, 28 N.D. L. Rev. 159 (1952).

Severed Mineral Interests, A Problem Without A Solution? 46 N.D. L. Rev. 451 (1970).

Agreement Between Parties.

By agreement the parties concerned may give fixtures the legal character of realty or personalty, and such agreement will be enforced so long as the rights of third parties are not prejudiced thereby. Myrick v. Bill, 17 N.W. 268, 3 Dakota 284, 1883 Dakota LEXIS 3 (Dakota 1883); Warner v. Intlehouse, 60 N.D. 542, 235 N.W. 638, 1931 N.D. LEXIS 201 (N.D. 1931).

Determination of Fixtures.

The determination of whether or not items are trade fixtures is a question of law. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Eminent Domain.

Owner of trade fixtures is entitled to just compensation from the condemnor if such fixtures are taken or damaged as a result of a condemnation; fact that owner of trade fixtures removes such fixtures subsequent to the condemnation does not deny him his right to compensation for damage to the fixtures resulting from the condemnation. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

Heating Equipment.

Heating apparatus constituted trade fixtures, where it was not permanently and irrevocably attached to building but was affixed simply by bolts, and was removed without causing any substantial damage to the building, as an adequate heating system is a sine qua non to the operation of a theater, since when a tenant installs fixtures in furtherance of his own purposes, there is a presumption that they are intended to be trade fixtures. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 1986 N.D. LEXIS 382 (N.D. 1986).

Mortgagee’s Rights.

The fact that there was an agreement between the mortgagor and the seller of a light plant, that until the plant was paid for it should be considered chattel property, did not affect the rights of the mortgagees of the real estate or those claiming under them, as against the mortgagor. Klocke v. Troske, 57 N.D. 404, 222 N.W. 262, 1928 N.D. LEXIS 144 (N.D. 1928).

Fixtures annexed to the land by the mortgagor after the making of the mortgage were subject to the mortgage. Klocke v. Troske, 57 N.D. 404, 222 N.W. 262, 1928 N.D. LEXIS 144 (N.D. 1928).

Right to Remove Fixtures.

That which is affixed to land is real property and if property is affixed to the land of another without agreement permitting its removal, it belongs to the owner of the land unless he chooses to require its removal, except as otherwise provided by this section. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).

This section is liberally construed in favor of the right of a tenant to remove trade fixtures and when the tenancy is terminated for reasons other than the expiration of the full term, the right to remove trade fixtures must be exercised within a reasonable time after termination. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).

A fence placed on the property of another is the property of the landowner unless he chooses to require its removal, but if he requires its removal, then later tears it down and refuses to give it up to the true owner upon demand, he is guilty of conversion. Frank v. Schaff, 123 N.W.2d 827, 1963 N.D. LEXIS 114 (N.D. 1963).

The right of an outgoing tenant to remove trade fixtures is based upon the sound policy of encouraging trade and industry by allowing tenants to make the most beneficial use of the leased premises. Otherwise, a tenant would hesitate to undergo large expenditures in installing the necessities of his trade, if ownership of these articles would pass to the landlord by operation of law. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 1986 N.D. LEXIS 382 (N.D. 1986).

In order for an agricultural tenant to preserve the right to remove a grain bin against a holder of a mortgage recorded after the erection of the bin, the tenant must file a description of the bin and a notice of his or her intent to remove it with the county register of deeds [now recorder]. Farm Credit Bank v. Martinson, 453 N.W.2d 816, 1990 N.D. LEXIS 83 (N.D.), cert. denied, 498 U.S. 846, 111 S. Ct. 131, 112 L. Ed. 2d 99, 1990 U.S. LEXIS 4468 (U.S. 1990).

Where tenant erected the grain bins in controversy on leased property prior to the recordation of bank’s mortgage, and tenant did not file a notice with the county register of deeds [now recorder] which would have given bank, as the holder of a mortgage, any notice of tenant’s intention to remove the bins, tenant failed to preserve his right of removal against the subsequent mortgagee; as a result, there was no reason to include him as a party in foreclosure proceedings on the leased property. Farm Credit Bank v. Martinson, 453 N.W.2d 816, 1990 N.D. LEXIS 83 (N.D.), cert. denied, 498 U.S. 846, 111 S. Ct. 131, 112 L. Ed. 2d 99, 1990 U.S. LEXIS 4468 (U.S. 1990).

Dental cabinets, which were screwed into the wall, plumbed, and wired, were intended by the parties to be trade fixtures sold with the dental practice where the cabinets were separately valued as personal property in the purchase price of the dental practice and listed as depreciable assets of the practice by both the former owner and the lessee. Pfeifle v. Tanabe, 2000 ND 219, 620 N.W.2d 167, 2000 N.D. LEXIS 269 (N.D. 2000).

Termination of Tenancy.

Where a tenancy is cut short on account of acts which work a forfeiture by the tenant of the remainder of the term but not an abandonment of the trade fixtures, such fixtures may be removed within a reasonable time after such termination of the tenancy. Hamilton v. Charlebois, 63 N.D. 504, 248 N.W. 676, 1933 N.D. LEXIS 202 (N.D. 1933).

Agricultural tenant lost any right to the fixtures and improvements that he left behind when his farm tenancy ended, long before the foreclosure. Because tenant had no possession of, nor an ownership interest in, the land or its improvements, the county court properly ordered him and his claimed goods evicted. Farm Credit Bank v. Martinson, 478 N.W.2d 810, 1991 N.D. LEXIS 229 (N.D. 1991).

Termination of Tenancy, Bankruptcy.

A trustee in bankruptcy succeeded to the rights of a bankrupt tenant in trade fixtures which tenant could remove within a reasonable time after the termination of the tenancy. Gussner v. Mandan Creamery & Produce Co., 78 N.D. 594, 51 N.W.2d 352, 1952 N.D. LEXIS 68 (N.D. 1952).

Trade Fixtures Test.

The general tests to be applied in determining if an item is a trade fixture are (1) annexation to the realty, either constructive or actual; (2) adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and (3) intention to make the article a permanent accession to the freehold. Schnaible v. Bismarck, 275 N.W.2d 859, 1979 N.D. LEXIS 209 (N.D. 1979).

In general, three factors are examined to determine if an item installed in a building is a trade fixture: (1) The means by which it has been annexed to the real estate; (2) whether it is adapted to and necessary for the purpose for which the premises is devoted; and (3) whether the parties intended that the article become a permanent part of the realty. Preeminent among these factors is the parties’ intent; the other two factors find their primary utility as evidence of that intent. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 1986 N.D. LEXIS 382 (N.D. 1986).

What Constitutes Fixtures.

A light plant firmly attached to the floor in the basement of a farm dwelling house, with necessary equipment, and a hay carrier attached to a barn, with necessary equipment, are fixtures. Klocke v. Troske, 57 N.D. 404, 222 N.W. 262, 1928 N.D. LEXIS 144 (N.D. 1928).

Whether an item constitutes a trade fixture depends upon the facts and circumstances of each case. However, a trade fixture can generally be defined as personal property annexed to the leased premises by the tenant for the purpose of carrying on the business to which the premises are devoted. R & D Amusement Corp. v. Christianson, 392 N.W.2d 385, 1986 N.D. LEXIS 382 (N.D. 1986).

Collateral References.

Sprinkler system as fixture as between landlord and tenant, 19 A.L.R.2d 1300, 1314.

Amusement apparatus or device as fixture, 41 A.L.R.2d 664.

Appliances, accessories, pipes, or other articles connected with plumbing as fixtures, 52 A.L.R.2d 222.

Carpets, linoleum, or the like, affixed by a tenant as fixtures, 55 A.L.R.2d 1044, 1048.

Electronic computing equipment as fixture, 6 A.L.R.3d 497.

Leases: what constitutes improvements, alterations or additions within provisions of lease permitting or prohibiting tenant’s removal thereof at termination of lease, 30 A.L.R.3d 998.

Air-conditioning appliance, equipment, or apparatus as fixture, 69 A.L.R.4th 359.

Time within which tenant’s right to remove trade fixtures must be exercised, 109 A.L.R.5th 421.

Law Reviews.

Survey of decisions regarding mortgages, 67 N.D. L. Rev. 334 (1991).

Accretion Replacing Land Lost by Erosion.

Where land shown as riparian on the original survey is lost by erosion so that nonriparian land becomes riparian, and land is thereafter built by accretion to the land which was originally nonriparian, extending over the former location of the original riparian tract, the owner of the land which was originally nonriparian has title only to the accreted land within the boundary of the formerly nonriparian tract. All other land so accreted, extending over the area of the original riparian tract, becomes the property of the original riparian owner, or his successor in interest. Perry v. Erling, 132 N.W.2d 889, 1965 N.D. LEXIS 168 (N.D. 1965).

District court did not err in ruling as a matter of law that plaintiff could not claim title to accretions beyond the fixed boundary line set forth in his deed. Excepting land eroding into the river from the grant of property in defendants' deeds did not amount to a conveyance of accretions located in North Dakota to plaintiff. Norby v. Estate of Kuykendall, 2015 ND 232, 869 N.W.2d 405, 2015 N.D. LEXIS 252 (N.D. 2015).

Accretions to Upland.

The presumption that a conveyance of the upland conveys accretions to the upland is rebuttable. Jennings v. Shipp, 115 N.W.2d 12, 1962 N.D. LEXIS 74 (N.D. 1962).

Application.

The word “natural” tends to indicate that this section does not apply to accretion and reliction resulting from artificial or man-made efforts. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

For discussion of evidence sufficient to warrant application of the doctrine of reliction and an ambulatory high watermark to determine the boundary of a navigable body of water. In re Ownership of Bed of Devils Lake, 423 N.W.2d 141, 1988 N.D. LEXIS 113 (N.D. 1988).

Division of Accretions.

The law governing the title to accretions that have formed since the establishment of meander lines and other boundaries of governmental subdivisions by the original United States Government Survey does not require that the division of the accretions between adjacent riparian owners be made by extending the boundary lines of legal subdivisions. Jennings v. Shipp, 115 N.W.2d 12, 1962 N.D. LEXIS 74 (N.D. 1962).

The main object to be kept in view in a division of accretions is that the division shall be equitable and proportional so as to give each owner a fair share of the land to be divided and his due portion of the new shore line proportionate to his share of the original shore. Jennings v. Shipp, 115 N.W.2d 12, 1962 N.D. LEXIS 74 (N.D. 1962).

Accretions may be divided between adjacent riparian owners by agreement as well as by actual survey. Jennings v. Shipp, 115 N.W.2d 12, 1962 N.D. LEXIS 74 (N.D. 1962).

Doctrine of Reliction.

In the event of accretion and reliction, any accreted or bared land belongs to the owner of the bank. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).

Inland Lake.

The owner of land fronting on a lake is entitled to any land properly added to his frontage by accretion, provided the process was gradual and imperceptible, and that his land was not originally separated from the water’s edge by the intervening property of any other person. Brignall v. Hannah, 34 N.D. 174, 157 N.W. 1042, 1916 N.D. LEXIS 22 (N.D. 1916); Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622, 1921 N.D. LEXIS 99 (N.D. 1921).

Island Accretion.

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. Hogue v. Bourgois, 71 N.W.2d 47, 1955 N.D. LEXIS 114 (N.D. 1955).

Island Erosion.

Where island in river had completely eroded away by 1933, land formed by accretions to east bank of river belonged to owners of lots on bank even though accreted land extended over area formerly occupied by island lots; thus owners of bank land lots were entitled to compensation for condemnation of land rather than owners of island lots. Peterson v. United States, 384 F.2d 664, 1967 U.S. App. LEXIS 4768 (8th Cir. N.D. 1967).

Where islands in river which were part of certain riparian lots were completely washed away over a period of time, and subsequent accretion formed new portions of land on certain riparian lots on the river bank, such new areas were the property of the owners of the riparian properties to which the new land attached itself, and did not belong to the successors in interest of the original grantee of the island property. United States v. 2,134.46 Acres of Land, 257 F. Supp. 723, 1966 U.S. Dist. LEXIS 10039 (D.N.D. 1966), aff'd, Peterson v. United States, 384 F.2d 664, 1967 U.S. App. LEXIS 4768 (8th Cir. N.D. 1967).

Patent from United States.

Where public lands bounded on a stream are patented by the United States without reservations or restrictions, the riparian rights of the patentee are determined by the law of the state in which the lands lie. Oberly v. Carpenter, 67 N.D. 495, 274 N.W. 509, 1937 N.D. LEXIS 105 (N.D. 1937).

Roadway Easements.

Where an easement was held by the state for a roadway across riparian land up to the high-water mark of the river, the terminal point of said easement continues to be the high-water mark, even though land may be added to the servient estate by accretion, thus extending the easement. Greeman v. Smith, 138 N.W.2d 433, 1965 N.D. LEXIS 111 (N.D. 1965).

Title in State.

Under this statute, the title to accretions on a navigable river is not reserved in the state. Gardner v. Green, 67 N.D. 268, 271 N.W. 775, 1937 N.D. LEXIS 80 (N.D. 1937).

Collateral References.

Filling or dredging, rights to land created at water’s edge by, 91 A.L.R.2d 857.

Adjoining property: right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto, 61 A.L.R.3d 1173.

Artificial condition not produced by such owner, riparian owner’s right to new land created by reliction or by accretion influenced by, 63 A.L.R.3d 249.

Application.

This section applies to both natural and artificial changes in the course of a navigable river and to an abandoned riverbed that still contains some water. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

By providing that avulsion results in a change of title when a stream forms a new course abandoning its ancient bed, this section modifies the common law, under which this transfer of title did not occur. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

This section makes no exceptions in transferring ownership of abandoned riverbeds; therefore, it applies with equal force to oil and gas rights. J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

Application to Oil and Gas Interests.

This section applies to determine ownership of oil and gas interests underlying an abandoned riverbed. Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990).

Extrinsic Aids.

This section does not clearly resolve whether the former owners of separate interests in new riverbed take the abandoned riverbed in severalty or on an undivided basis. It is therefore ambiguous and of doubtful meaning in this respect, and the court may look to extrinsic aids to ascertain the intent of the legislature. Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990).

Grant from United States.

A grant of land in the bed of a nonnavigable river made by the United States while holding complete sovereignty over the locality including it cannot be divested by a retroactive rule or declaration of the state subsequently created out of that territory, classifying the river as navigable. Gable v. Angle, 7 F. Supp. 967, 1933 U.S. Dist. LEXIS 1899 (D. Okla. 1933).

History.

For discussion of the history of this section, see J.P. Furlong Enters., Inc. v. Sun Exploration & Prod. Co., 423 N.W.2d 130 (N.D. 1988).

Indemnification of Former Owners.

The intent of this section is to compensate former owners of the new riverbed for loss by bestowing upon them ownership of the abandoned bed in a quantity proportionate to their former ownership. The purpose of that indemnity is to restore the parties to their former positions as closely as possible. Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990).

Mineral and Surface Rights.

This section does not distinguish between mineral and surface rights to the abandoned channel. Kim-Go v. J.P. Furlong Enters., 484 N.W.2d 118, 1992 N.D. LEXIS 99 (N.D. 1992).

Modification of Common Law.

Although this section modifies common-law by providing that avulsion results in a change of title when a stream forms a new course abandoning its ancient bed, that modification does not require abandonment of the principle favoring divided ownership. Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990).

Ownership in Severalty.

This section authorizes ownership of the abandoned riverbed in severalty if former ownership of the land under the new bed was several. Kim-Go, H.K. Minerals, Inc. v. J.P. Furlong Enters., Inc., 460 N.W.2d 694 (N.D. 1990).

Law Reviews.

The Nature and Extent of Rights in Water in North Dakota, 51 N.D. L. Rev. 249 (1975).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1989 relating to title to land, 65 N.D. L. Rev. 588 (1989).

“Navigable Waters” Defined.

If the waters of the stream involved are capable of a proper public use in the environment where situated and to which they are or may be made subservient, it is a navigable stream for purposes of this statute. Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622, 1921 N.D. LEXIS 99 (N.D. 1921).

Title in State.

Where an island or accumulation of land forms apart from the mainland by the deposit of alluvial accretions in the bed of a navigable stream, the title to such island or accumulation of land, together with all additions thereto formed by natural causes through the gradual and imperceptible process of accretion, is vested in the state. State v. Loy, 74 N.D. 182, 20 N.W.2d 668, 1945 N.D. LEXIS 66 (N.D. 1945); Hogue v. Bourgois, 71 N.W.2d 47, 1955 N.D. LEXIS 114 (N.D. 1955).

Collateral References.

Applicability of rules of accretion and reliction so as to confer title to additions upon owner of island or bar in navigable stream, 54 A.L.R.2d 643.

In General.

The law controlling personal property is governed by the law of the domicile of the owner if there is no law to the contrary in the place where the personal property is situated. This limitation of the otherwise universal rule applies when the disposition of the property does violence to the law of the place where the property is located, or where it is contrary to public policy. American Standard Life & Accident Ins. Co. v. Speros, 494 N.W.2d 599, 1993 N.D. LEXIS 1 (N.D. 1993).

Law Reviews.

Modern Escheat Statutes Dealing With Unclaimed Intangible Personal Property, 42 N.D. L. Rev. 441 (1966).

Claim for Damages.

Where the property of the owner is damaged by reason of the negligence or wrongful act of another, the owner’s right of action to recover is a property right. Kaiser v. Minneapolis, S. P., S. S. M. Ry., 62 N.W.2d 40, 1953 N.D. LEXIS 95 (N.D. 1953).

Value of Chose.

Prima facie a chose in action is worth what appears to be due upon it, and unless the presumption is rebutted by legal evidence, it is conclusive. Anderson v. First Nat'l Bank, 6 N.D. 497, 72 N.W. 916, 1897 N.D. LEXIS 28 (N.D. 1897), aff'd, 172 U.S. 573, 19 S. Ct. 284, 43 L. Ed. 558, 1899 U.S. LEXIS 1397 (U.S. 1899).

Contract Rights.

A cause of action for the breach of a covenant of seisin is assignable. Beulah Coal Mining Co. v. Heihn, 46 N.D. 646, 180 N.W. 787, 1920 N.D. LEXIS 71 (N.D. 1920).

Money due under a contract for personal service can be assigned notwithstanding the fact that the contract itself is not assignable. Dixon-Reo Co. v. Horton Motor Co., 49 N.D. 304, 191 N.W. 780, 1922 N.D. LEXIS 56 (N.D. 1922).

A contract for the sale of land, in so far as it expresses the purchaser’s obligation to pay the price, is transferable without the purchaser’s consent. First Sec. Bank v. Hillesland, 62 N.D. 31, 241 N.W. 289, 1932 N.D. LEXIS 147 (N.D. 1932).

Tort Claim.

The mere naked right of action for fraud and deceit is not a thing in action arising out of the violation of a right of property or out of an obligation. Grabow v. Bergeth, 59 N.D. 214, 229 N.W. 282, 1930 N.D. LEXIS 134 (N.D. 1930).

Fraud causing a pecuniary loss is not “damage to goods” of the deceased and a cause of action therefor does not survive, and is not assignable. Grabow v. Bergeth, 59 N.D. 214, 229 N.W. 282, 1930 N.D. LEXIS 134 (N.D. 1930).

A landowner’s claim for damages arising out of the negligent spraying of oats raised on his land is assignable. Burt v. Lake Region Flying Serv., 78 N.D. 928, 54 N.W.2d 339, 1952 N.D. LEXIS 88 (N.D. 1952).

Where the property of the owner is damaged by reason of the negligence or wrongful act of another, the owner’s right of action to recover damages is a property right and is assignable by the owner. Kaiser v. Minneapolis, S. P., S. S. M. Ry., 62 N.W.2d 40, 1953 N.D. LEXIS 95 (N.D. 1953).

Length of Operation.

A business may possess good will even though it has been operated for a short period of time without net profits, or at a loss. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950); Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).

Partnership.

The good will of a partnership business is an asset of the partnership. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950); Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).

Reputation.

The good will of a business is the reputation it has established in the community, including the customers who usually trade there. MacFadden v. Jenkins, 40 N.D. 422, 169 N.W. 151, 1918 N.D. LEXIS 106 (N.D. 1918).

Adequacy of Consideration.

The good will of one’s business, although intangible, is adequate as a consideration for the promise of a purchaser and may form the subject matter of a contract of sale, in whole or in part. Mapes v. Metcalf, 10 N.D. 601, 88 N.W. 713, 1901 N.D. LEXIS 80 (N.D. 1901); MacFadden v. Jenkins, 40 N.D. 422, 169 N.W. 151, 1918 N.D. LEXIS 106 (N.D. 1918).

Corporate Assets.

Where the charter of a corporation expires after a long period of prosperity in the conduct of its business, and where for a period of years prior to its termination dividends had been earned and paid greatly in excess of a reasonable rate of interest on the capital invested, the good will has a substantial value, capable of being measured in money. Langer v. Fargo Mercantile Co., 48 N.D. 545, 186 N.W. 104, 1921 N.D. LEXIS 77 (N.D. 1921).

Presumption of Sale.

In absence of an expression to the contrary in the agreement of sale, the sale of a business will be presumed to pass the good will of the business with other assets. Engstrom v. Larson, 77 N.D. 541, 44 N.W.2d 97, 1950 N.D. LEXIS 151 (N.D. 1950); Engstrom v. Larson, 79 N.D. 188, 55 N.W.2d 579, 1952 N.D. LEXIS 112 (N.D. 1952).

Collateral References.

“Book value”: good will as included in “book value” in partnership agreement in determining value of partner’s interest, 47 A.L.R.2d 1425, 1429.

Good will as affecting rights and profits earned by partnership or joint adventure after death or dissolution, 55 A.L.R.2d 1391, 1417.

Implied transfer: sale of business or of real estate upon which business is conducted or transferring good will by implication, in absence of covenant not to compete, 65 A.L.R.2d 502.

Dissolution of partnership, accountability for good will on, 65 A.L.R.2d 521.

Eminent domain: good will or “going concern” value as element of lessee’s compensation for taking leasehold in eminent domain, 58 A.L.R.3d 566.

Divorce and separation: Goodwill in medical and dental practice as property subject to distribution on dissolution of marriage, 76 A.L.R.4th 1025.

Divorce and separation: Goodwill in law practice as property subject to distribution on dissolution of marriage, 79 A.L.R.4th 171.

Law Reviews.

Good Will, 4 Dak. L. Rev. 15 (1932).

Equitable Interest.

A sale under execution of corporate stock which has been pledged will pass to the purchaser at the sale the equitable interest of the pledgor. Van Cise v. Merchants' Nat'l Bank, 33 N.W. 897, 4 Dakota 485, 1887 Dakota LEXIS 14 (Dakota 1887).

Meander Line as Boundary.

Unless a deed indicates a contrary intent with an explicit reservation or exception, or the record title indicates a prior separation of the upland and the riparian land, a deed that designates a meander line as the boundary of a conveyance conveys the grantor’s property interest to the ordinary high watermark, and also correlative interests vis-`-vis the state in the area between the ordinary high watermark and the ordinary low watermark. North Shore v. Wakefield, 530 N.W.2d 297, 1995 N.D. LEXIS 52 (N.D. 1995).

Expectancy of An Heir Apparent.

Under the real property law of both California and North Dakota, a mere possibility, such as an expectancy of an heir apparent, is not to be deemed an interest of any kind, and it cannot be transferred. Wacker Oil v. LoneTree Energy, 459 N.W.2d 381, 1990 N.D. LEXIS 163 (N.D. 1990).

Undivided Interest.

An undivided one-half interest in land is an interest in property capable of being mortgaged or transferred. Ruble v. Grafton Nat'l Bank, 64 N.D. 129, 250 N.W. 784, 1933 N.D. LEXIS 257 (N.D. 1933).

Law Reviews.

Estates in North Dakota, 30 N.D. L. Rev. 289 (1954).

Real Property, Future Interests, Mere Possibilities, Mode of Conveyance, 25 Bar Briefs, State Bar Ass’n of N.D. 124 (1949).

Bill of Sale.

Where husband desires to give his personal property to his wife, the execution and delivery of a bill of sale thereof is equivalent to a delivery of the property itself. Lenihan v. Meyer, 111 N.W.2d 696, 1961 N.D. LEXIS 101 (N.D. 1961).

Deed of Real Estate.

Where the owner of real estate executes and delivers a voluntary transfer of such property in the form of a deed, done in good faith and as grantor, such deed transfers all of the title of the grantor therein to his grantee and such voluntary transfer needs no consideration to be sustained. Arhart v. Thompson, 75 N.D. 189, 26 N.W.2d 523, 1947 N.D. LEXIS 58 (N.D. 1947).

Where an aged, widowed mother executes and delivers to her only son a deed to all her real property, reserving in herself a life estate, and it appears in the evidence in an action to set aside the deed that the mother had a change of mind after the transaction was completed, equity does not require that the deed be set aside for failure of consideration. Young v. Smith, 191 N.W.2d 516, 1971 N.D. LEXIS 111, 1971 N.D. LEXIS 127 (N.D. 1971).

Acceptance by Grantee.

Although conveyance by deed takes effect upon delivery of the deed by the grantor, it is well settled that “acceptance by the grantee is an essential part of a delivery”. CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 1990 N.D. LEXIS 164 (N.D. 1990).

The recording of a deed may create a rebuttable presumption of its delivery to, and its acceptance by, the grantee, and a failure to renounce a deed after knowledge of its existence may also in some circumstances be sufficient to show that a grantee accepted the deed. However, presumptions of acceptance arise only when the deed is beneficial to the grantee, not when the deed places a burden on the grantee. CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 1990 N.D. LEXIS 164 (N.D. 1990).

Acceptance of Deed.

Where debtor recorded a deed in which he conveyed mortgaged home back to mortgage company in order to avoid foreclosure, mortgage company did not “constructively accept” the deed by failing to object to the deed for four weeks. Debtor had been told that deed would not be accepted, but recorded deed anyway. Nor did delay in objecting raise issues of laches, estoppel, or presumption of acceptance. CUNA Mortgage v. Aafedt, 459 N.W.2d 801, 1990 N.D. LEXIS 164 (N.D. 1990).

Burden of Proof.

The burden is upon the grantee to prove delivery. Black v. Black, 58 N.D. 501, 226 N.W. 485, 1929 N.D. LEXIS 244 (N.D. 1929).

Delivery by Recordation.

Trial court’s finding, in effect, that recording deed to husband and wife from wife’s father in the Register of Deeds [now Recorder] office constituted delivery of the deed sufficient to transfer the title of land described therein was not clearly erroneous. Thus, it was proper for the trial court to consider the land described therein as property within marital estate and subject to distribution in divorce, even though the wife claimed the parties did not own the land because there was no delivery of the deed. Dinius v. Dinius, 448 N.W.2d 210, 1989 N.D. LEXIS 220 (N.D. 1989).

Under North Dakota law, an interest transferred by a deed does not vest until there is delivery of the deed, and absent a delivery of a deed, the deed is of no effect. It is true, however, that the recording of a deed may create a rebuttable presumption of its delivery to, and its acceptance by, the grantee. Doeling v. Berger (In re Berger), 497 B.R. 47, 2013 Bankr. LEXIS 3023 (Bankr. D.N.D. 2013).

Delivery Required.

No title passes under a deed unless there is either an actual or constructive delivery thereof. McManus v. Commow, 10 N.D. 340, 87 N.W. 8, 1901 N.D. LEXIS 40 (N.D. 1901).

A deed is of no effect unless it is delivered. Eide v. Tveter, 143 F. Supp. 665, 1956 U.S. Dist. LEXIS 3012 (D.N.D. 1956).

The interest transferred by a deed does not vest until there is a delivery of the deed. Jorgensen v. Crow, 466 N.W.2d 120, 1991 N.D. LEXIS 8 (N.D. 1991).

District court properly quieted title to real property in a grandmother because “delivery” was not statutorily presumed and the grandson failed to establish the deeds at issue were delivered inasmuch as the grandmother's attorney was not acting as the grandson's attorney, the deeds were neither actually nor constructively delivered, the grandmother had dominion or control over the deeds through her attorney, the attorney was not a stranger to the grandmother, and the deeds held by the attorney were not constructively delivered to the grandson. Rice v. Neether, 2016 ND 247, 888 N.W.2d 749, 2016 N.D. LEXIS 237 (N.D. 2016).

District court erred in entering a judgment quieting title to the disputed royalty interest in defendants because, although defendants testified that they did not intend to convey a royalty interest, they could not otherwise explain how plaintiffs obtained the royalty deed conveying a one-twelfth royalty interest in minerals to plaintiffs; defendants only provided speculative testimony that delivery to plaintiffs might have been accidental; and defendants failed to rebut with clear and convincing evidence the presumption that the royalty deed was delivered to and accepted by plaintiffs. Trulson v. Meiers, 2019 ND 243, 933 N.W.2d 922, 2019 N.D. LEXIS 241 (N.D. 2019).

Failure to Record.

Where a delivery of a deed is made unconditionally, the fact that the deed was not recorded until after death of the grantor does not affect the title. McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679, 1936 N.D. LEXIS 218 (N.D. 1936).

Incomplete Deed.

A deed delivered with the name of the grantee blank, and with no proper authorization shown to fill in the grantee’s name, is void on its face. Brugman v. Charlson, 44 N.D. 114, 171 N.W. 882, 1919 N.D. LEXIS 193 (N.D. 1919).

Intention of Grantor.

Whether there was a delivery of a deed depends upon the intention of the grantor. McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679, 1936 N.D. LEXIS 218 (N.D. 1936).

Words or conduct of the grantor evidencing his intention to render his deed presently operative and effectual so as to vest the estate in the grantee, and to surrender control over the title are necessary and sufficient to constitute a valid delivery. Eide v. Tveter, 143 F. Supp. 665, 1956 U.S. Dist. LEXIS 3012 (D.N.D. 1956).

Leasehold Interest.

Since an oil and gas lease is a transfer of an interest in real estate, an assignment of such lease also is a transfer of an interest in real estate and takes effect only on its delivery. Mar Win Dev. Co. v. Wilson, 104 N.W.2d 369, 1960 N.D. LEXIS 79 (N.D. 1960).

Presumption of Delivery.

It is presumed that a deed was delivered to the grantee on the day of its date and its date is presumed to be the true date. Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308, 1905 N.D. LEXIS 2 (N.D. 1905); McMillen v. Chamberland, 71 N.D. 65, 298 N.W. 767, 1941 N.D. LEXIS 137 (N.D. 1941).

Clear and convincing evidence must be produced to rebut the presumption of the delivery of a deed to or ownership of an instrument by a grantee in whose possession the deed is retained. Cox v. McLean, 66 N.D. 696, 268 N.W. 686, 1936 N.D. LEXIS 216 (N.D. 1936).

The execution and recording of a deed creates a presumption of sufficient delivery and fixes the time when the deed becomes effective. Eide v. Tveter, 143 F. Supp. 665, 1956 U.S. Dist. LEXIS 3012 (D.N.D. 1956).

Quitclaim Deed.

Grantors’ physically handing quitclaim deed to grantee in attorney’s office effected absolute delivery of deed, passing title immediately in accordance with the terms of the deed. Bolyea v. First Presbyterian Church, 196 N.W.2d 149, 1972 N.D. LEXIS 162 (N.D. 1972).

Vesting of Title.

The delivery of a deed which has been knowingly executed with the intention of transferring title completes the transaction so far as the title is concerned, and vests title in the grantee. NORD v. NORD, 68 N.D. 560, 282 N.W. 507, 1938 N.D. LEXIS 147 (N.D. 1938).

The interest transferred to a grantee by a deed does not vest until there is a delivery of the deed by the grantor and acceptance of the deed by the grantee; a deed is of no effect unless it is delivered but, delivery is of no avail unless the grantor effectuates it with the intent that the deed presently pass title to the grantee. In re Estate of Dittus, 497 N.W.2d 415, 1993 N.D. LEXIS 41 (N.D. 1993).

Although the debtors provided extrinsic evidence indicating that a quitclaim deed between them and the lender was not intended to be an actual transfer of ownership, extrinsic evidence could not be considered under the parol evidence rule because the delivered and recorded deed clearly and unambiguously conveyed all of the debtors' right, title, and interest in the property to the lender. Finstad v. Gord, 2014 ND 72, 844 N.W.2d 913, 2014 N.D. LEXIS 74 (N.D. 2014).

Acknowledgment of Instrument.

To make transfer of real property by a deed valid as between the grantor and grantee, it is not necessary that the instrument be acknowledged. Bumann v. Burleigh County, 73 N.D. 655, 18 N.W.2d 10, 1945 N.D. LEXIS 82 (N.D. 1945).

Condition Precedent in Written Contract for Sale Void.

Title to mineral rights was transferred to the grantee as of the date of the manual delivery by the grantor and manual acceptance by the grantee of the mineral deeds notwithstanding provisions in the contract for sale providing that grantee was not to issue the consideration for such conveyance until he was satisfied that grantor’s title was acceptable, and that grantee would not claim ownership of the mineral interests until after such consideration (in the form of corporate stock) had been issued to grantor. Adams v. Little Mo. Minerals Ass'n, 143 N.W.2d 659, 1966 N.D. LEXIS 179 (N.D. 1966).

Mortgage.

A mortgage takes effect on its delivery free from any condition upon which the delivery was made. Sargent v. Cooley, 12 N.D. 1, 94 N.W. 576, 1902 N.D. LEXIS 6 (N.D. 1902).

Rebuttal of Presumption.

Clear and convincing evidence must be produced to rebut the presumption of the delivery of a deed to or ownership of an instrument by a grantee in whose possession the deed is retained. Cox v. McLean, 66 N.D. 696, 268 N.W. 686, 1936 N.D. LEXIS 216 (N.D. 1936).

Return of Deed.

If a deed has once been delivered, its return to the grantor for safekeeping or some other specific purpose does not destroy the effect of the delivery. Keefe v. Fitzgerald, 69 N.D. 481, 288 N.W. 213, 1939 N.D. LEXIS 176 (N.D. 1939).

Sufficiency of Delivery.

Where plaintiffs executed deed and placed it in the hands of agent of defendant for delivery pursuant to an agreement that agent should have the right to demand from his principal as a condition precedent to such delivery, that the principal should procure a deed to the agent for other land, plaintiff’s deed, having been delivered to defendant without the performance of such condition precedent, passed title, as it was incompetent for the agent to make any agreement securing a benefit for himself adverse to his employers’ interests. Holt v. Colton, 22 N.W. 495, 4 Dakota 67, 1885 Dakota LEXIS 4 (Dakota 1885).

If the grantor makes a manual delivery to the grantee of a deed absolute in form, intending to part with all authority and dominion over the instrument, the delivery is absolute and title passes immediately in accordance with the terms of the deed, notwithstanding any intention or understanding to the contrary between the parties. Ueland v. More Bros., 22 N.D. 283, 133 N.W. 543, 1911 N.D. LEXIS 45 (N.D. 1911); Anderson v. Overby, 46 N.D. 631, 180 N.W. 708, 1920 N.D. LEXIS 67 (N.D. 1920); NORD v. NORD, 68 N.D. 560, 282 N.W. 507, 1938 N.D. LEXIS 147 (N.D. 1938); Keefe v. Fitzgerald, 69 N.D. 481, 288 N.W. 213, 1939 N.D. LEXIS 176 (N.D. 1939); McMillen v. Chamberland, 71 N.D. 65, 298 N.W. 767, 1941 N.D. LEXIS 137 (N.D. 1941); Arhart v. Thompson, 75 N.D. 189, 26 N.W.2d 523, 1947 N.D. LEXIS 58 (N.D. 1947); Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950); Accola v. Miller, 76 N.W.2d 517, 1956 N.D. LEXIS 116, 1956 N.D. LEXIS 117 (N.D. 1956).

Where a grantee does not record a deed nor take possession of the land until after the decease of the grantor, and there is evidence that she had in mind a secret purpose to give back the title to the grantor in case he should survive the grantee, the deed nevertheless was absolute in the light of positive testimony to that effect. Cale v. Way, 46 N.D. 558, 179 N.W. 921, 1920 N.D. LEXIS 45 (N.D. 1920).

A deed given by a husband to his wife for cancellation of the husband’s debt to her father, and given by the wife to her father for safekeeping, is sufficiently delivered and founded on a good consideration. State Bank v. Newell, 55 N.D. 184, 212 N.W. 848, 1927 N.D. LEXIS 21 (N.D. 1927).

It is essential to a valid delivery that there be some act or declaration from which an intention to pass title may be inferred, and this is true although the grantee is of very immature years. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

Whether there was a delivery of a deed depends upon the intention of the grantor. McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679, 1936 N.D. LEXIS 218 (N.D. 1936).

Where the individuals claimed title through a series of quitclaim deeds, the judgment quieting title in the owner was affirmed; this section did not apply in that the delivery of the deed was not conditional. Valley Honey Co., LLC v. Graves, 2003 ND 125, 666 N.W.2d 453, 2003 N.D. LEXIS 138 (N.D. 2003), cert. denied, 540 U.S. 1165, 124 S. Ct. 1179, 157 L. Ed. 2d 1212, 2004 U.S. LEXIS 900 (U.S. 2004).

Although the debtors provided extrinsic evidence indicating that a quitclaim deed between them and the lender was not intended to be an actual transfer of ownership, extrinsic evidence could not be considered under the parol evidence rule because the delivered and recorded deed clearly and unambiguously conveyed all of the debtors' right, title, and interest in the property to the lender. Finstad v. Gord, 2014 ND 72, 844 N.W.2d 913, 2014 N.D. LEXIS 74 (N.D. 2014).

Creating the Escrow.

The placing by the parties thereto of a promissory note in the hands of a third party with instructions not to deliver the same until directed to do so by the maker did not constitute an escrow. Nichols & Shepard Co. v. First Nat'l Bank, 6 N.D. 404, 71 N.W. 135, 1897 N.D. LEXIS 12 (N.D. 1897).

An escrow of a grant can only be created by delivery to a third person and not by delivery to the grantee. Johnson v. Weldy, 79 N.D. 80, 54 N.W.2d 829, 1952 N.D. LEXIS 100 (N.D. 1952); Kunick v. Trout, 85 N.W.2d 438, 1957 N.D. LEXIS 153 (N.D. 1957).

A valid escrow may be made by oral agreement and its existence may, at least in part, be shown by circumstances and conduct indicating the intention of the parties. Ganser v. Zimmerman, 80 N.W.2d 828, 1956 N.D. LEXIS 172 (N.D. 1956); Kunick v. Trout, 85 N.W.2d 438, 1957 N.D. LEXIS 153 (N.D. 1957).

Effect of Placing Document in Escrow.

A document placed in escrow is simply left to await the happening of some event or fulfillment of a condition the performance of which rests entirely with the other party and the grantor or maker cannot recall the escrow nor control the document. Nichols & Shepard Co. v. First Nat'l Bank, 6 N.D. 404, 71 N.W. 135, 1897 N.D. LEXIS 12 (N.D. 1897); Kunick v. Trout, 85 N.W.2d 438, 1957 N.D. LEXIS 153 (N.D. 1957).

Interest of Agent.

The escrow agent cannot gain a personal interest in the transaction by imposing a condition upon delivery which inures to his own benefit, where the grantor has not likewise imposed such a condition precedent to delivery. Holt v. Colton, 22 N.W. 495, 4 Dakota 67, 1885 Dakota LEXIS 4 (Dakota 1885).

Subjects of Escrow.

An escrow agreement may apply to mortgages or other instruments deposited upon conditions similar to those prevailing in the escrow of deeds. Ganser v. Zimmerman, 80 N.W.2d 828, 1956 N.D. LEXIS 172 (N.D. 1956).

Termination of Escrow.

The death of a grantor while his deed is held in escrow does not invalidate the instrument and it may be subsequently delivered upon compliance by the grantee with the conditions of the escrow agreement or upon the happening of the contingency upon which valid delivery depends. Ganser v. Zimmerman, 80 N.W.2d 828, 1956 N.D. LEXIS 172 (N.D. 1956).

Time is not of the essence of an escrow agreement unless so specified, and if no time is specified performance should be had within a reasonable time unless such time of performance has been waived. Ganser v. Zimmerman, 80 N.W.2d 828, 1956 N.D. LEXIS 172 (N.D. 1956).

Collateral References.

Loss resulting from defaults or peculations of escrow holder, who must bear, 15 A.L.R.2d 870.

Interest: rights as between vendor and vendee under land contract in respect of interest as affected by deposit in escrow, 25 A.L.R.2d 951, 975.

Mortgage payments: rights in funds representing “escrow” payments made by mortgagor in advance to cover taxes or insurance, 50 A.L.R.3d 697.

Acceptance by Minor.

In order to have valid constructive delivery of a deed to a minor, there must be an agreement between the grantor and the guardian of the minor so as to entitle the grantee to an immediate delivery. McManus v. Commow, 10 N.D. 340, 87 N.W. 8, 1901 N.D. LEXIS 40 (N.D. 1901); Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

Burden of Proof.

A grantee who asserts title has the burden of proving a constructive delivery. Magoffin v. Watros, 45 N.D. 406, 178 N.W. 134, 1920 N.D. LEXIS 138 (N.D. 1920); Black v. Black, 58 N.D. 501, 226 N.W. 485, 1929 N.D. LEXIS 244 (N.D. 1929).

Date of Acceptance.

If the grantee in a deed, after learning that the deed had been delivered to a stranger for his benefit, accepts the same, such acceptance relates back to the time of the original delivery. Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797, 1898 N.D. LEXIS 90 (N.D. 1898).

Delivery by Recordation.

Trial court’s finding, in effect, that recording deed to husband and wife from wife’s father in the Register of Deeds [now Recorder] office constituted delivery of the deed sufficient to transfer the title of land described therein was not clearly erroneous. Thus, it was proper for the trial court to consider the land described therein as property within marital estate and subject to distribution in divorce, even though the wife claimed the parties did not own the land because there was no delivery of the deed. Dinius v. Dinius, 448 N.W.2d 210, 1989 N.D. LEXIS 220 (N.D. 1989).

Delivery to Agent.

When the grantor shows that he parts with all control of the deed and leaves it with a third person as the agent of the grantee, the delivery is effected. McGuigan v. Heuer, 66 N.D. 710, 268 N.W. 679, 1936 N.D. LEXIS 218 (N.D. 1936).

Insufficient Delivery.

A deed left among other papers, with a letter showing an intention that the land described should go to the grantee on the death of the grantor, is not a constructive delivery. Black v. Black, 58 N.D. 501, 226 N.W. 485, 1929 N.D. LEXIS 244 (N.D. 1929).

There was no constructive delivery of the deed where grantor executed the deed without the knowledge of the grantee, retained possession of the deed in his bank box, retained possession of the keys to the bank box, and paid taxes on the land described in the deed until his death. First Nat'l Bank v. Bloom, 264 N.W.2d 208, 1978 N.D. LEXIS 241 (N.D. 1978).

Intention of Grantor.

An indispensable element to be considered in determining whether a deed has been delivered is the intention of the grantor. Stark County v. Koch, 107 N.W.2d 701, 1961 N.D. LEXIS 64 (N.D. 1961).

Where there was no evidence grantor intended to part with dominion and control of deeds in favor of grantees or to vest title to property in grantees there was no constructive delivery under this section. Frederick v. Frederick, 178 N.W.2d 834, 1970 N.D. LEXIS 91 (N.D. 1970).

Life Estate in Grantor.

If a deed is delivered to a third person to be delivered to the grantee on the death of the grantor, such delivery transfers the title to the grantee, subject to the life interest of the grantor in the land. Arnegaard v. Arnegaard, 7 N.D. 475, 75 N.W. 797, 1898 N.D. LEXIS 90 (N.D. 1898); Silbernagel v. Silbernagel, 79 N.D. 275, 55 N.W.2d 713, 1952 N.D. LEXIS 120 (N.D. 1952).

Question of Fact.

The question of constructive delivery of deeds to grantee named therein was a question of fact where the deeds were executed by grantee’s mother and left with bank with a statement that the grantor wanted the deeds recorded if anything happened to her. Magoffin v. Watros, 45 N.D. 406, 178 N.W. 134, 1920 N.D. LEXIS 138 (N.D. 1920).

Whether or not there was actual or constructive delivery of a deed is a question of fact. Thus, the findings of fact of the district court that there was actual or constructive delivery of a deed will be upheld by the supreme court unless it concludes that these findings are clearly erroneous. Dinius v. Dinius, 448 N.W.2d 210, 1989 N.D. LEXIS 220 (N.D. 1989).

Collateral References.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 A.L.R.2d 787.

Easement.

Summary judgment was properly entered against appellant in a case alleging trespass and other causes of action because a 1953 permit issued to another constituted an easement, rather than a license, since it was not revocable at the will of a landowner; under N.D.C.C. § 47-10-11, a transfer of real property passed all easements, but a license was generally not assignable. Moreover, N.D.C.C. § 47-05-02.1(1) only applied to easements that became binding after July 1, 1977. Riverwood Commer. Park, LLC v. Std. Oil Co., 2011 ND 95, 797 N.W.2d 770, 2011 N.D. LEXIS 95 (N.D. 2011).

April 2007 pipeline easement was ambiguous, and the district court erred in construing the easement as a matter of law. However, the district court did not err in ruling that an energy company's use of plaintiff's private road to access a second pipeline on plaintiffs' land was not authorized by a 2008 road use agreement and was a trespass. Krenz v. XTO Energy, Inc., 2017 ND 19, 890 N.W.2d 222, 2017 N.D. LEXIS 32 (N.D. 2017).

Present use of a lane that was built on plaintiffs' property was consistent with the scope of an easement granted for highway purposes. Evidence supported that the lane was constructed to alleviate safety concerns because of congestion due to trucks waiting on the highway to access an oil-truck offloading facility. Ceynar v. Tesoro Logistics LP, 2017 ND 112, 894 N.W.2d 374, 2017 N.D. LEXIS 111 (N.D. 2017).

Extrinsic Evidence.

Where deeds conveying land and mineral interests were ambiguous as to parties’ intent concerning the estate in the mineral rights conveyed, trial court properly permitted use of an unrecorded land-purchase agreement to explain parties’ intent as to the mineral estate to be conveyed. Schulz v. Hauck, 312 N.W.2d 360, 1981 N.D. LEXIS 413 (N.D. 1981).

Intent of Parties.

Deeds are interpreted to ascertain and effectuate the parties’ mutual intentions. Stracka v. Peterson, 377 N.W.2d 580, 1985 N.D. LEXIS 442 (N.D. 1985).

Primary purpose in construing deed is to ascertain and effectuate intent of grantor even though principles of contract law guide inquiry. United States v. Johansen, 93 F.3d 459, 1996 U.S. App. LEXIS 20640 (8th Cir. N.D. 1996).

Language of Deed.

The language in the deed, if clear and explicit, shall govern the interpretation, and the parties’ intentions should be ascertained from the language alone, if possible. Royse v. Easter Seal Soc'y for Crippled Children & Adults, 256 N.W.2d 542, 1977 N.D. LEXIS 147 (N.D. 1977).

Insertion of the word “Royalty” in a printed deed form suited to the conveyance of a mineral interest created an ambiguity because rational contrary arguments could be made as to the meaning of the language in question. The grantor’s ambiguously expressed intentions were questions of fact to be determined with the aid of extrinsic evidence. Williams Co. v. Hamilton, 427 N.W.2d 822, 1988 N.D. LEXIS 191 (N.D. 1988).

District court erred in ruling as a matter of law that a railroad acquired only an easement under five separate deeds where the deeds unambiguously conveyed land, warranted title, and did not use any words limiting the grant, and no other provisions or language created ambiguity. EOG Res., Inc. v. Soo Line R.R. Co., 2015 ND 187, 867 N.W.2d 308, 2015 N.D. LEXIS 202 (N.D. 2015).

District court erred in ruling that the railroad acquired only an easement under a deed with a slightly different property description where the deed conveyed a strip, piece, or parcel of land to the railroad and included warranty and habendum clauses, and no other provisions or language limited the interest conveyed or created ambiguity in the type of interest conveyed. EOG Res., Inc. v. Soo Line R.R. Co., 2015 ND 187, 867 N.W.2d 308, 2015 N.D. LEXIS 202 (N.D. 2015).

Granting summary judgment as to a deed containing a materially different property description was improper where reasonable differences of opinion existed as to the inferences to be drawn from the deed's language. EOG Res., Inc. v. Soo Line R.R. Co., 2015 ND 187, 867 N.W.2d 308, 2015 N.D. LEXIS 202 (N.D. 2015).

District court erred in holding an ambiguity existed in the right-of-way deeds where, rather than granting and conveying a strip, piece, parcel, or tract of land, the deeds explicitly stated that they granted a right of way through the specified land and specifically limited the purposes of the right of way for the laying out, construction, and maintenance of a public drain. Sargent Cnty. Water Res. Dist. v. Mathews, 2015 ND 277, 871 N.W.2d 608, 2015 N.D. LEXIS 294 (N.D. 2015).

Leases.

Court interpreted grants of property in like manner with contracts and, therefore, the same reasoning applied to its interpretation of the lease. The designated acreage in an otherwise unambiguous lease was irrelevant in light of the specific description. Lario Oil & Gas Co. v. EOG Res., Inc., 2013 ND 98, 832 N.W.2d 49, 2013 N.D. LEXIS 93 (June 19, 2013).

Reservations and Exceptions.

Where the intent of the parties was that the conveyance was as to all of the premises “subject to” certain reservations and exceptions specifically referred to and the provision in question involved an interest thought to be in a third party, but later determined to be void and nonexistent, the provision did not exclude the nonexistent interest from the grant and was neither a reservation nor an exception of an interest by the grantor. United States v. McKenzie County, 187 F. Supp. 470, 1960 U.S. Dist. LEXIS 5105 (D.N.D. 1960), aff'd, 291 F.2d 161, 1961 U.S. App. LEXIS 4193 (8th Cir. N.D. 1961).

Collateral References.

Joining in subsequent instrument as ratification of prior ineffective deed, 7 A.L.R.2d 294.

Effect of supplying description of property conveyed after manual delivery of deed, 11 A.L.R.2d 1372.

“Offspring”: who are within gift or grant to “offspring”, 23 A.L.R.2d 842.

Effect on validity of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.

Timber: sufficiency of description in exception or reservation as to standing timber, 35 A.L.R.2d 1422.

Written matter as controlling printed matter in construction of deed, 37 A.L.R.2d 820.

Habendum: conflict between granting and habendum clauses as to estate conveyed, 58 A.L.R.2d 1374.

Parol evidence: admissibility of parol evidence with respect to reservations or exceptions upon conveyance of real property, 61 A.L.R.2d 1390.

Boundaries: measurement in horizontal line or along surface or contour, 80 A.L.R.2d 1208.

Dwelling: meaning of terms “dwelling” or “dwelling house” or “house”, as used in the conveyance or exception or reservation clauses, 38 A.L.R.3d 1419.

Boundaries: description in deed as relating to magnetic or true meridian, 70 A.L.R.3d 1220.

Adopted child as within class named in deed or inter vivos trust instrument, 37 A.L.R.5th 237.

Law Reviews.

Deeds — Nature and Creation of Reservations — Reservation of a Property Interest in a Deed in Favor of the Grantor’s Spouse Is Effective When That Is the Grantor’s Intent, 60 N.D. L. Rev. 317 (1984).

In General.

A grant executed by a private individual or corporation shall be interpreted in favor of the grantee, except that a reservation in a grant is to be interpreted in favor of the grantor. Corbett v. La Bere, 68 N.W.2d 211, 1955 N.D. LEXIS 88 (N.D. 1955).

Mineral Rights.

This section does not apply to the reservation of mineral rights under N.D.C.C. § 38-09-01. Salzseider v. Brunsdale, 94 N.W.2d 502, 1959 N.D. LEXIS 65 (N.D. 1959).

A grant [without a reservation] shall be interpreted in favor of the grantee and a conveyance of land, without any exception or reservation of the minerals constitutes a conveyance of 100 percent of the minerals as well as the surface. Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 1991 N.D. LEXIS 105 (N.D. 1991).

When Rule Inapplicable.

The rule of construction provided in this section does not apply where the court determines that no ambiguity or uncertainty exists. Harding v. Trenor, 157 F. Supp. 350, 1957 U.S. Dist. LEXIS 2506 (D.N.D. 1957).

In a quiet title action involving quitclaim deeds executed in favor of a deceased property owner’s son, the son’s reliance on various statutory construction rules was misplaced because they were a last resort and were not applicable when there were other means for ascertaining intent in order to resolve the dispute. Rolla v. Tank, 2013 ND 175, 837 N.W.2d 907, 2013 N.D. LEXIS 178 (N.D. 2013).

Law Reviews.

“And Other Minerals” as Interpreted by the North Dakota Supreme Court, Robert E. Beck, 52 N.D. L. Rev. 633 (1976).

The Meaning of the Word “Minerals”, 54 N.D. L. Rev. 419 (1978).

Ambiguous Transfer Agreement.

Transfer of rental signs from a rental sign business to a sign company did not constitute a gift in light of an ambiguous transfer agreement, as extrinsic evidence tended to establish that the transfer document was not intended to give ownership interest in the signs to the company but to allow the company to use the signs; therefore, the trial court did not err in dismissing the sign company owner’s suit for conversion after the signs and letters were taken by the rental sign business. Doeden v. Stubstad, 2008 ND 165, 755 N.W.2d 859, 2008 N.D. LEXIS 165 (N.D. 2008).

Assignment.

An assignment of the principal carries with it all the incidents thereof. Clark v. Sullivan, 3 N.D. 280, 55 N.W. 733, 1893 N.D. LEXIS 24 (N.D. 1893).

Conveyance of Deed.

A deed passes whatever interest the grantor has in the land unless words are used to show an intent to convey a smaller estate. Acoma Oil Corp. v. Wilson, 471 N.W.2d 476, 1991 N.D. LEXIS 105 (N.D. 1991).

Grantees were not entitled to quiet title to property because the grantor’s interest in the land of the decedent’s estate was still subject to administration and the personal representative’s power over the estate property was superior to any title or interest of the grantees in the estate property, while the grantor had no claim to the land held by a trust as the trustee had sole authority to act on behalf of the trust. Hogen v. Hogen, 2019 ND 17, 921 N.W.2d 672, 2019 N.D. LEXIS 23 (N.D.), cert. denied, — U.S. —, 140 S. Ct. 119, 205 L. Ed. 2d 33, 2019 U.S. LEXIS 5366 (U.S. 2019).

Grant in Deed.

The grants in deeds are conclusive against the grantors unless grounds exist to reform those conveyances. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

A grantor who, by warranty deed, purports to convey a fractional mineral interest is estopped from asserting title to a reserved fractional mineral interest in contradiction to the interest purportedly conveyed; the key question is, not what the grantor purported to retain for himself, but what he purported to give to the grantee. If both grant and reservation cannot be given effect, the reservation must fail. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Mortgage.

The holder of the legal title to real estate may mortgage the real estate between the act of sale on foreclosure under a power contained in the prior mortgage and the expiration of the period allowed by statute for redemption. North Dakota Horse & Cattle Co. v. Serumgard, 17 N.D. 466, 117 N.W. 453, 1908 N.D. LEXIS 71 (N.D. 1908).

Acknowledgment.

To make a transfer of real property by a deed valid as between the grantor and the grantee, it is not necessary that the instrument be acknowledged. Bumann v. Burleigh County, 73 N.D. 655, 18 N.W.2d 10, 1945 N.D. LEXIS 82 (N.D. 1945).

As between the parties, the fact that the deed is not acknowledged does not prevent it from operating as a transfer of real estate. Knoshaug v. Pollman, 148 F. Supp. 16, 1957 U.S. Dist. LEXIS 3967 (D.N.D.), aff'd, 245 F.2d 271, 1957 U.S. App. LEXIS 4833 (8th Cir. N.D. 1957).

Failure of grantor to re-sign and re-acknowledge a deed that was altered by the grantee rendered that deed null and void on its face. Neither grantee's proffered justifications for altering an exhibit to the purchase agreement before recording it nor the alteration's purported harmlessness excused his noncompliance with the rules governing grantors. Armstrong v. Berco Res., LLC, 752 F.3d 716, 2014 U.S. App. LEXIS 9030 (8th Cir. N.D. 2014).

Grantor’s signature.

District court did not err in determining that a warranty deed document failed to meet the statutory requirements because the court did not clearly err in finding that the type-written document did not contain the grantor’s signature. K.S. v. S.M.H. (In re Guardianship & Conservatorship of S.M.H.), 2021 ND 104, 960 N.W.2d 811, 2021 N.D. LEXIS 103 (N.D. 2021).

Brokerage Contract.

A mere brokerage contract, whereby real estate broker was to receive all over a certain sum in case he found a purchaser for property, was not a contract for the sale of the property in contravention of this section. Kepner v. Ford, 16 N.D. 50, 111 N.W. 619, 1907 N.D. LEXIS 19 (N.D. 1907).

Buildings.

An agreement for the sale of a large, frame livery barn, affixed to and a part of the real estate, the barn to be wrecked and the lumber removed thereafter at the convenience of the purchaser, was a contract for the sale of an interest in real property and could not be enforced unless made in writing. Baird v. Elliott, 63 N.D. 738, 249 N.W. 894, 1933 N.D. LEXIS 230 (N.D. 1933).

Contract by Agent.

A contract of an agent to sell property is void in the absence of written authority signed by the owner. Ballou v. Bergvendsen, 9 N.D. 285, 83 N.W. 10, 1900 N.D. LEXIS 226 (N.D. 1900).

To make valid a written contract for the sale of real property signed by an agent of the vendor, the agent must have authority in writing from the owner so to do. Brandrup v. Britten, 11 N.D. 376, 92 N.W. 453, 1902 N.D. LEXIS 227 (N.D. 1902).

The statute of frauds deals with contracts necessarily affecting the title and conveyance of real estate as between the parties to the contract and does not include a contract of agency whereby the agent is to bid in real estate in the name of the principal. Schmidt v. Beiseker, 14 N.D. 587, 105 N.W. 1102, 1905 N.D. LEXIS 92 (N.D. 1905).

A contract for the conveyance of land, executed by the party to be charged may be enforced even though the authority of the agent of the vendee who signed the contract was not given in writing. Merritt v. Adams County Land & Inv. Co., 29 N.D. 496, 151 N.W. 11, 1915 N.D. LEXIS 25 (N.D. 1915).

A written contract for the sale of land, entered into by an agent of the vendor who has only a parol authority to contract for the sale thereof, is void. Halland v. Johnson, 42 N.D. 360, 174 N.W. 874, 1919 N.D. LEXIS 188 (N.D. 1919).

This statute applies to sales of privately-owned real estate at public auction, but the auctioneer has the authority to make the required memorandum on behalf of both the bidder and vendor. Brey v. Tvedt, 74 N.D. 192, 21 N.W.2d 49, 1945 N.D. LEXIS 67 (N.D. 1945).

Rule voiding real estate sale entered into with purchaser by agent who has only verbal authority from owner was applicable even though purported agent was attorney; mere payment of money consideration by buyer generally is not sufficient justification for enforcing oral contract to convey land; acts relied upon as partial performance, to take an oral agreement out of statute of frauds, must be such as to be incomprehensible unless related to the contract; payment of taxes, partial payment of $3,000 mortgage and possession of premises by purchaser were consistent with his operation of land under his seven-eighths ownership of property and were insufficient to take alleged oral contract for sale of remaining one-eighth interest in property out of statute of frauds. Tostenson v. Ihland, 147 N.W.2d 104, 1966 N.D. LEXIS 152 (N.D. 1966).

Grantee’s Name Left Blank in Deed.

Deed form left blank, except for the signature of the grantor and an attached description of the property, delivered by grantor to the grantee along with verbal instructions for grantee to have an attorney insert the description of the property and grantee’s name in the deed, was a valid transfer between grantor and grantee when deed was delivered in blank to the grantee. Mehus v. Thompson, 266 N.W.2d 920, 1978 N.D. LEXIS 252 (N.D. 1978).

Homestead Property.

A conveyance of a homestead that is not executed and acknowledged by both husband and wife is void. Dixon v. Kaufman, 79 N.D. 633, 58 N.W.2d 797, 1953 N.D. LEXIS 69 (N.D. 1953); Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

Improvements.

When improvements to property are relied upon as part performance of an oral contract for purposes of removing it from the statute of frauds, the improvements made on the land must be valuable, substantial, and permanent. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

Memorandum of Oral Agreement.

A memorandum need not be a completed contract to satisfy the statute of frauds and it is sufficient if it is merely written evidence of the contract. Hartman v. McNamara, 186 F. Supp. 293, 1960 U.S. Dist. LEXIS 3429 (D.N.D. 1960).

A letter which purported to recite the terms of an offer to purchase real estate and which was certified to by the vendor as correct was insufficient to satisfy the statute of frauds where the instrument was prepared and signed after the oral sale agreement had been abrogated. Hartman v. McNamara, 186 F. Supp. 293, 1960 U.S. Dist. LEXIS 3429 (D.N.D. 1960).

Oral Option Agreement.

District court erred in ruling that an alleged oral option agreement to purchase a lake home was enforceable under the statute of frauds where it made no findings about the terms of the alleged oral agreement, such as the amount of the lease payments, the length of the lease, or the manner in which the option to purchase was to be exercised, the alleged purchasers' payment of the owners' mortgage obligations, taxes and related expenses were as consistent with a simple lease as with a lease with an option to purchase, and the alleged purchasers' mere attempt to to exercise the option was insufficient to remove an oral agreement from the statute of frauds. Knorr v. Norberg, 2014 ND 74, 844 N.W.2d 919, 2014 N.D. LEXIS 75 (N.D. 2014).

Oral Trust Agreement.

An oral agreement of trust between record landowner and others to hold land is void. United States v. Heasley, 170 F. Supp. 738, 1959 U.S. Dist. LEXIS 3779 (D.N.D. 1959), rev'd, 274 F.2d 733, 1960 U.S. App. LEXIS 5555 (8th Cir. N.D. 1960).

Parol Gift of Land.

Trial court did not err in finding plaintiff acquired title to property through executed parol gift from his parents, and occupancy by adverse possession. Mertz v. Arendt, 1997 ND 113, 564 N.W.2d 294, 1997 N.D. LEXIS 106 (N.D. 1997).

Part Payment and Improvements.

Part payment of the purchase price and substantial improvements to the property may remove an oral contract from the statute of frauds and create an enforceable contract constituting an enforceable equitable property interest. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

Part Performance.

Partial performance of a parol agreement concerning the sale of real property takes the contract outside the statute of frauds and equity will enforce specific performance by the party claiming protection of the statute. Fideler v. Norton, 30 N.W. 128, 32 N.W. 57, 4 Dakota 258 (Dakota 1886).

Part payment of the purchase price under a verbal agreement of sale of real estate is not, in and of itself, sufficient to take the verbal agreement out of the statute of frauds. Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, 1950 N.D. LEXIS 155, 1950 N.D. LEXIS 156 (N.D. 1950).

Partial performance of a parol agreement to convey an interest in real property is sufficient to take the oral agreement out of the statute of frauds. Brandhagen v. Burt, 117 N.W.2d 696, 1962 N.D. LEXIS 94 (N.D. 1962).

In an action by husband and wife, owning building and lot as joint tenants, to quiet title to a portion of their lot upon which defendant’s building encroached, where plaintiff husband entered into an oral agreement with the defendant for use of plaintiffs’ wall as a party wall and for an easement to a strip of plaintiffs’ lot, and pursuant to such oral agreement, the plaintiff husband allowed the defendant to construct his building, using such strip, and attach his building to plaintiffs’ building, and defendant spent large sums of money in construction of his building and to pay for repairs to the party wall, there was sufficient partial performance by the defendant to take the oral agreement out of the statute of frauds as between plaintiff husband and defendant. Brandhagen v. Burt, 117 N.W.2d 696, 1962 N.D. LEXIS 94 (N.D. 1962).

In order to be sufficient to relieve an oral agreement for the sale of real estate from the effect of the statute of frauds, the acts relied upon as partial performance must be of such a nature as to be incomprehensible unless viewed in relation to the contract to convey an interest in land. Parceluk v. Knudtson, 139 N.W.2d 864, 1966 N.D. LEXIS 202 (N.D. 1966).

Standing alone, the payment of money consideration by the buyer generally is not sufficient justification for enforcing an oral contract for the conveyance of real estate. Parceluk v. Knudtson, 139 N.W.2d 864, 1966 N.D. LEXIS 202 (N.D. 1966).

Actions of purchaser did not constitute sufficient part performance to remove an oral contract for the sale of real property from the statute of frauds where there was a dispute as to the amount of the property to be sold and the actions were consistent with either disputed amount. Anderson v. Mooney, 279 N.W.2d 423, 1979 N.D. LEXIS 251 (N.D. 1979).

The general rule is that contracts for the sale of real property and transfers of real property interests must be made by an instrument in writing. However, part performance of an oral contract which is consistent only with the existence of the alleged contract removes it from the statute of frauds. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

While partial payment of the purchase price alone is not justification for enforcing an oral contract to convey land, partial payment together with other acts such as possession or the making of valuable improvements may be sufficient to take a contract out of the statute of frauds. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

The trial court erred in granting summary judgment in partnership’s action seeking specific performance of an oral agreement for the purchase of real property where the partnership raised genuine issues of material fact in support of its allegations of an oral contract and partial performance of that contract so as to remove it from the statute of frauds. Johnson Farms v. McEnroe, 1997 ND 179, 568 N.W.2d 920, 1997 N.D. LEXIS 197 (N.D. 1997).

Absent a written contract or agreement, N.D.C.C. § 47-10-01 allowed a court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof; the improvements made by the tenants and relied upon by the trial court did not unmistakably point to the existence of the alleged oral contract and were more consistent with a lease without an option to purchase, such that the alleged oral contract was not removed from the statute of frauds because there was not partial performance consistent only with the existence of the alleged contract. Fladeland v. Gudbranson, 2004 ND 118, 681 N.W.2d 431, 2004 N.D. LEXIS 215 (N.D. 2004).

Trial court did not err in granting possession of land to the personal representative of a mother’s estate because a son failed to prove that he had an oral contract for deed to buy the land from his parents; the son failed to clearly and definitely prove payments made by him were for the purchase of the real estate and he failed to prove by clear and definite evidence the existence of an oral contract for the sale of land which possessed all the necessary elements and features of an enforceable agreement. Although the trial court’s findings about the existence of an oral agreement considered criteria relevant to the statute of frauds, N.D.C.C. § 9-06-04(3), and specific performance in the context of finding there was no contract for the sale of land, the trial court’s findings reflected a correct application of the burden of proof under N.D.C.C. § 47-10-01 for claims for specific performance of an alleged oral contract to convey land. Thompson v. Thompson (In re Estate of Thompson), 2008 ND 144, 752 N.W.2d 624, 2008 N.D. LEXIS 142 (N.D. 2008).

It was not clear error to find a personal representative did not, under part performance, show an oral contract to sell an estate's real property to himself because (1) alternate theories explained the alleged contract's terms, and (2) the personal representative did not provide unequivocal evidence of the contract. Broten v. Broten, 2015 ND 127, 863 N.W.2d 902, 2015 N.D. LEXIS 115 (N.D. 2015).

In a quiet title action, an oral agreement relating to the purchase of property did not comply with the statute of frauds, and an argument that partial performance of the alleged oral contract precluded the application of the statute of frauds was not considered because it was raised for the first time on appeal. Klein v. Sletto, 2017 ND 26, 889 N.W.2d 918, 2017 N.D. LEXIS 14 (N.D. 2017).

Property owners failed to raise an issue of material fact that part performance removed an alleged agreement with the city from the statute of frauds because the affidavit and testimony of one of the owners provided nothing more than conclusory allegations of part performance; the owner’s testimony went no further than to allege she spent eight years cleaning the city’s streets so she could use them as pasture land. City of Glen Ullin v. Schirado, 2021 ND 72, 959 N.W.2d 47, 2021 N.D. LEXIS 73 (N.D. 2021).

Pleading.

This section is available as a defense under the general issue if the complaint fails to allege whether the contract was in writing. Fried v. Lonski, 48 N.D. 1023, 188 N.W. 582, 1922 N.D. LEXIS 135 (N.D. 1922); Brey v. Tvedt, 74 N.D. 192, 21 N.W.2d 49, 1945 N.D. LEXIS 67 (N.D. 1945).

Possession.

A judgment creditor with actual notice that a party is in possession of the property upon which the judgment lien attaches must make reasonable inquiry of the possessor’s interest in the property. If a possessor has an enforceable interest in the property under an oral contract of purchase, the judgment creditor takes subject to that interest. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

A possessor’s legal or equitable property interest is superior to the interest of a subsequent purchaser or judgment creditor who has notice, actual or constructive, of the possessor’s interest in the property. Williston Coop. Credit Union v. Fossum, 459 N.W.2d 548, 1990 N.D. LEXIS 174 (N.D. 1990).

Possession and Improvements.

Possession of real property must be actual, open, and notorious to serve as an act of part performance to take it out of the statute of frauds. Muir v. Chandler, 16 N.D. 551, 113 N.W. 1038, 1907 N.D. LEXIS 75 (N.D. 1907); Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, 1950 N.D. LEXIS 155, 1950 N.D. LEXIS 156 (N.D. 1950).

A contract for the sale of land within the statute of frauds may be enforced through an action for specific performance, although the requirements of the statute are not complied with, if the vendee takes possession and makes improvements on the premises. Mitchell v. Knudtson Land Co., 19 N.D. 736, 124 N.W. 946, 1910 N.D. LEXIS 12 (N.D. 1910); Syrup v. Pitcher, 73 N.W.2d 140, 1955 N.D. LEXIS 150 (N.D. 1955).

The statute of frauds cannot be invoked to defeat the parol gift of land, where the donee has taken possession and made improvements so that it would work substantial injustice to hold the gift void. Heuer v. Heuer, 64 N.D. 497, 253 N.W. 856, 1934 N.D. LEXIS 227 (N.D. 1934); Gran v. Gran, 69 N.D. 725, 290 N.W. 241, 1940 N.D. LEXIS 201 (N.D. 1940).

Possession of real estate obtained without the acquiescence of a vendor is not such possession as will constitute part performance and thus satisfy the statute of frauds. Brey v. Tvedt, 74 N.D. 192, 21 N.W.2d 49, 1945 N.D. LEXIS 67 (N.D. 1945).

Constructive possession is without force as a factor to take verbal agreement for the sale of real estate out of the statute of frauds. Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, 1950 N.D. LEXIS 155, 1950 N.D. LEXIS 156 (N.D. 1950).

In order to operate as a factor in the part performance of a verbal contract for the sale of real estate so as to take it out of the statute of frauds, improvements must be valuable, substantial, and permanent, and such that an action at law for damages would not afford adequate relief. Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 44 N.W.2d 417, 1950 N.D. LEXIS 155, 1950 N.D. LEXIS 156 (N.D. 1950); Syrup v. Pitcher, 73 N.W.2d 140, 1955 N.D. LEXIS 150 (N.D. 1955).

An agreement for the conveyance of an interest in real property, within the statute of frauds, may be enforced, although it is not in writing, where the party takes possession and makes improvements on the property. Brandhagen v. Burt, 117 N.W.2d 696, 1962 N.D. LEXIS 94 (N.D. 1962).

Where defendants took possession pursuant to an oral contract of sale and made substantial permanent improvements to the property in reliance upon that contract, the statute of frauds did not bar specific enforcement of the oral contract of sale of the property. Green v. Gustafson, 482 N.W.2d 842, 1992 N.D. LEXIS 56 (N.D. 1992).

This section would not preclude enforcement of an alleged oral sales contract where the lessee invested labor and money in improvements on the premises; the lessor represented that she owned the land and would sell it to the lessee after the lease terminated. Ehrman v. Feist, 1997 ND 180, 568 N.W.2d 747, 1997 N.D. LEXIS 198 (N.D. 1997).

Railroad Lands.

Title of railroad grantor to after-acquired land passed to grantee by operation of law when patent was issued to the railroad by the United States. Bull v. Campbell, 225 F. 923, 141 C.C.A. 47 (8th Cir. 1915), appeal dismissed, 242 U.S. 610, 37 S. Ct. 17, 61 L. Ed. 525 (1916).

Scope of Statute.

This statute is not a limitation upon the language of N.D.C.C. § 9-06-04, which deals with transfers of oil, gas, or mineral leases. Petroleum Exch. v. Poynter, 64 N.W.2d 718, 1954 N.D. LEXIS 78 (N.D. 1954).

Successor in Interest.

The Farm Credit Bank is the successor in interest to the Federal Land Bank “by operation of law.” Farm Credit Bank v. Ziebarth, 485 N.W.2d 788, 1992 N.D. LEXIS 116 (N.D.), cert. denied, 506 U.S. 988, 113 S. Ct. 501, 121 L. Ed. 2d 437, 1992 U.S. LEXIS 7252 (U.S. 1992).

Collateral References.

Timber: sale or contract for sale of standing timber as within provisions of statute of frauds respecting sale or contract of sale of real property, 7 A.L.R.2d 517.

Specific performance: change of conditions after execution of contract or option for sale of real property as affecting right to specific performance, 11 A.L.R.2d 390.

Lease: sufficiency of memorandum of lease agreement to satisfy statute of frauds, as regards terms and conditions of lease, 16 A.L.R.2d 621.

Description or designation of land in contract or memorandum of sale, under statute of frauds, 23 A.L.R.2d 6.

Consideration: necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds, 23 A.L.R.2d 164.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938.

Specific performance: uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Venue of action for specific performance of contract pertaining to real property, 63 A.L.R.2d 456, 459.

Minerals: solid mineral royalty as real or personal property for purposes of statute of frauds, 68 A.L.R.2d 728, 735.

Lease: part performance doctrine with respect to renewal option in lease not complying with statute of frauds, 80 A.L.R.2d 425.

Specific performance: necessity and sufficiency of allegation, in a suit for specific performance on a contract for the sale of land, as to the adequacy of the consideration or as to the fairness of the contract, 100 A.L.R.2d 551.

Rescission: applicability of statute of frauds to agreement to rescind contract for sale of land, 42 A.L.R.3d 242.

Lease or sublease subscribed by one of the parties only, validity of, 46 A.L.R.3d 619.

Specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.

Exception to rule that oral gifts of land are unenforceable under statute of frauds, 83 A.L.R.3d 1294.

Law Reviews.

The Statute of Frauds Restatement with North Dakota Annotations, 2 Dak. L. Rev. 373 (1929); 3 Dak. L. Rev. 319 (1930).

Conveyance by Other than Vendor.

The tender, by a vendor under a contract to sell real estate, of a deed from a third party, the owner of the land agreed to be conveyed, does not comply with the contract calling for a deed from the vendor. McVeety v. Harvey Mercantile Co., 24 N.D. 245, 139 N.W. 586, 1913 N.D. LEXIS 1 (N.D. 1913).

Merchantable Title.

This section required seller to give merchantable title although agreement to sell realty failed to specify kind of title by which land was to be transferred. Overboe v. Overboe, 160 N.W.2d 650, 1968 N.D. LEXIS 70 (N.D. 1968).

Option to Purchase.

Where lessee-vendee in possession exercised an option to purchase an undivided one-half interest by tendering the purchase price, the option to purchase became an assignable contract of purchase and the lessee-vendee became the equitable owner of one-half interest and was entitled to share in the possession of the land. Olson v. Brodell, 128 N.W.2d 169, 1964 N.D. LEXIS 101 (N.D. 1964).

Collateral References.

Validity, construction and effect of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455, 461.

Variance between offer and acceptance in regard to title as affecting consummation of contract for sale of real property, 16 A.L.R.3d 1424.

Vendor’s obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

Contract for Marketable Title.

Where grantor covenanted to have a marketable title to land by time of transfer or he would withdraw it from sale, it was his duty to use good faith and reasonable efforts to perfect his title to all the lands involved. Sykes v. Robbins, 125 F. 433, 1903 U.S. App. LEXIS 4178, 1903 U.S. App. LEXIS 4179 (8th Cir. N.D. 1903).

Contract to Give Usual Covenants.

An executory contract to convey the deed with the usual covenants was not satisfied by a deed from vendor’s grantee, since the right to the vendor’s personal covenants not running with the land was a valuable right and the vendee was entitled to insist on receiving them in accordance with contract. Skinner v. Scholes, 59 N.D. 181, 229 N.W. 114, 1930 N.D. LEXIS 132 (N.D. 1930).

Covenant of Possession.

A provision whereby the seller is allowed to remain on the premises, unmolested and without the payment of rent, until certain notes are paid by the buyer, constitutes a personal covenant between the parties and is in no way inconsistent with the covenants required by this statute. Harding v. Trenor, 157 F. Supp. 350, 1957 U.S. Dist. LEXIS 2506 (D.N.D. 1957).

Blanks Left in Deed.

Deed form left blank, except for the signature of the grantor and an attached description of the property, delivered by grantor to the grantee along with verbal instructions for grantee to have an attorney insert the description of the property and grantee’s name in the deed, was a valid transfer between grantor and grantee when deed was delivered in blank to the grantee. Mehus v. Thompson, 266 N.W.2d 920, 1978 N.D. LEXIS 252 (N.D. 1978).

Form Not Mandatory.

The form provided in this section may be used but is not required as North Dakota law prescribes no particular form to be used in a grant of real property. Mehus v. Thompson, 266 N.W.2d 920, 1978 N.D. LEXIS 252 (N.D. 1978).

Collateral References.

Validity and effect of one spouse’s conveyance to other spouse of interest in property held as estate by the entireties, 18 A.L.R.5th 230.

Grant Superior to Reservation.

A grantor who, by warranty deed, purports to convey a fractional mineral interest is estopped from asserting title to a reserved fractional mineral interest in contradiction to the interest purportedly conveyed; the key question is, not what the grantor purported to retain for himself, but what he purported to give to the grantee. If both grant and reservation cannot be given effect, the reservation must fail. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Perfection by Recordation.

Perfection of a mortgage on real estate as against subsequent purchasers and encumbrancers is accomplished by recordation. Until recordation occurs, an unrecorded mortgage, while effective as between the parties themselves, is ineffective as against bona fide purchasers for value. Drewes v. Vatnsdal, 139 B.R. 472, 1991 Bankr. LEXIS 2071 (Bankr. D.N.D. 1991).

Quitclaim Deed.

Grant in quitclaim deed is conclusive against the grantors and their privies, and they are precluded from repudiating their agreement and denying the validity of their deed. Gajewski v. Bratcher, 221 N.W.2d 614, 1974 N.D. LEXIS 173, 1974 N.D. LEXIS 222 (N.D. 1974).

Reformation.

The grants in deeds are conclusive against the grantors unless grounds exist to reform those conveyances. Mau v. Schwan, 460 N.W.2d 131, 1990 N.D. LEXIS 180 (N.D. 1990).

Contrary Intent.

A different intent appears from a grant when the soil beneath the highway is specifically excepted from the grant. Lalim v. Williams County, 105 N.W.2d 339, 1960 N.D. LEXIS 89 (N.D. 1960).

Vacation by Law.

A conveyance without any reservation by the owner of a lot adjoining a street will pass title to the center of the street except in cases where the street has been vacated, the manner provided by law. Welsh v. Monson, 79 N.W.2d 155, 1956 N.D. LEXIS 153 (N.D. 1956).

Collateral References.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Easement Instead of License.

Summary judgment was properly entered against appellant in a case alleging trespass and other causes of action because a 1953 permit issued to another constituted an easement, rather than a license, since it was not revocable at the will of a landowner; under N.D.C.C. § 47-10-11, a transfer of real property passed all easements, but a license was generally not assignable. Moreover, N.D.C.C. § 47-05-02.1(1) only applied to easements that became binding after July 1, 1977. Riverwood Commer. Park, LLC v. Std. Oil Co., 2011 ND 95, 797 N.W.2d 770, 2011 N.D. LEXIS 95 (N.D. 2011).

Failure to Reserve or Except.

Failure to reserve or except an easement appurtenant to the real property transferred will pass the easement to the transferee even where the deed of transfer contains nothing about the easement. Royse v. Easter Seal Soc'y for Crippled Children & Adults, 256 N.W.2d 542, 1977 N.D. LEXIS 147 (N.D. 1977).

Husband Conveying to Wife.

A deed by which the owner of realty purports to grant and convey realty to his wife conveys a fee simple title to her. Lee v. Lee, 70 N.D. 79, 292 N.W. 124, 1940 N.D. LEXIS 149 (N.D. 1940).

Presumption Not Conclusive.

This is not a conclusive presumption. Lalim v. Williams County, 105 N.W.2d 339, 1960 N.D. LEXIS 89 (N.D. 1960).

Rebutting the Presumption.

Evidence to overcome the presumption provided in this statute must be clear, specific, satisfactory, and convincing. Mechtle v. Topp, 78 N.D. 789, 52 N.W.2d 842, 1952 N.D. LEXIS 78 (N.D. 1952); Ives v. Hanson, 66 N.W.2d 802, 1954 N.D. LEXIS 112 (N.D. 1954); Burr v. Kelley, 74 N.W.2d 428, 1956 N.D. LEXIS 87 (N.D. 1956).

Reservations and Exceptions.

Reservations and exceptions to the grant should be set forth in the granting clause with the same prominence as the property granted, or, if placed elsewhere in the deed, must be so explicit as to leave no doubt that they are reservations or exceptions to the grant and not to the covenant of warranty. Royse v. Easter Seal Soc'y for Crippled Children & Adults, 256 N.W.2d 542, 1977 N.D. LEXIS 147 (N.D. 1977).

Adverse Possession.

Where grantor owned the property in fee simple at the time he purportedly executed the warranty deed transferring the property to the grantor, the doctrines of after-acquired title and estoppel by deed were not applicable to bar grantor’s claim to the property after the conveyance by adverse possession. Torgerson v. Rose, 339 N.W.2d 79, 1983 N.D. LEXIS 365 (N.D. 1983).

Estoppel by Deed.

The doctrine of estoppel by deed is not limited to grants falling within the provisions of this statute, but may arise from covenants of warranty contained in other grants. Aure v. Mackoff, 93 N.W.2d 807, 1958 N.D. LEXIS 109 (N.D. 1958).

Patented Lands.

Grant of public lands to railroad by patent in praesenti gave title to grantee of railroad which had conveyed the lands before execution of the patent. Bull v. Campbell, 225 F. 923, 141 C.C.A. 47 (8th Cir. 1915), appeal dismissed, 242 U.S. 610, 37 S. Ct. 17, 61 L. Ed. 525 (1916).

Quitclaim Deed.

After-acquired title by the grantor will not, as a general rule, inure to the benefit of the grantee under a quitclaim deed. Bilby v. Wire, 77 N.W.2d 882, 1956 N.D. LEXIS 136 (N.D. 1956); Aure v. Mackoff, 93 N.W.2d 807, 1958 N.D. LEXIS 109 (N.D. 1958).

When the quitclaim deed contains a warranty of title, the warranty estops the warrantor from asserting against the grantee or his assigns any after-acquired title derived through any act or conveyance of the warrantor prior to the deed. Aure v. Mackoff, 93 N.W.2d 807, 1958 N.D. LEXIS 109 (N.D. 1958).

Appellants asserted that under N.D.C.C. § 47-10-19, using the term “grant” implied certain covenants, but the deed from the grantor was plainly labeled as a quitclaim deed, and although the deed used the term “grant,” it did so in reference to the grantor’s right, title, and interest in the property, rather than specifically granting the entire fee to the grantee; proper consideration of the deed looked to the entire document, and after considering case law from South Dakota that discussed S.D. Codified Laws §§ 3249, 3254, the court construed the deed as a quitclaim deed and rejected appellants’ claim that use of the word “grant” transformed the entire deed so as to also pass after-acquired title under N.D.C.C. § 47-10-15. Carkuff v. Balmer, 2011 ND 60, 795 N.W.2d 303, 2011 N.D. LEXIS 43 (N.D. 2011).

Transfer by Operation of Law.

Where a person purports by a proper instrument to grant real property in fee simple and subsequently acquires any title or claim of title thereto, the title or claim so acquired passes by operation of law to the grantee. Stark County v. Koch, 107 N.W.2d 701, 1961 N.D. LEXIS 64 (N.D. 1961).

Divorce judgment did not convey after-acquired title in mineral interests because the judgment was not a quit claim deed and included no language granting or warranting the grantor's title to the mineral interests in fee simple, so the judgment purported to convey only the grantor's interest as distinguished from a fee simple title. Hall v. Malloy, 2015 ND 94, 862 N.W.2d 514, 2015 N.D. LEXIS 97 (N.D. 2015).

Contract for Sale.

Where the contract provided for the sale of land without specifying the kind of conveyance, it will be implied that a conveyance of the fee by deed with general warranty was intended. Hoth v. Kahler, 74 N.W.2d 440, 1956 N.D. LEXIS 89 (N.D. 1956).

Express Covenant Against Encumbrances.

The implied covenant against encumbrances raised by the use of the word “grant” in a conveyance in fee is restrained, as against the grantor, by an express covenant against encumbrances limited by its terms to the heirs, executors, and administrators of the grantor. Dun v. Dietrich, 3 N.D. 3, 53 N.W. 81, 1892 N.D. LEXIS 3 (N.D. 1892).

Joinder of Wife.

A wife who joins her husband in a deed for no purpose other than to release her homestead right in the property is not bound by the implied covenant arising from the use of the word “grant”. Dun v. Dietrich, 3 N.D. 3, 53 N.W. 81, 1892 N.D. LEXIS 3 (N.D. 1892).

Quitclaim Deed.

A quitclaim deed is one which purports to convey, and is understood to convey, nothing more than the interest or estate in the property described of which the grantor is seized or possessed, if any, at the time, rather than the property itself. Frandson v. Casey, 73 N.W.2d 436, 1955 N.D. LEXIS 155 (N.D. 1955).

Appellants asserted that under N.D.C.C. § 47-10-19, using the term “grant” implied certain covenants, but the deed from the grantor was plainly labeled as a quitclaim deed, and although the deed used the term “grant,” it did so in reference to the grantor’s right, title, and interest in the property, rather than specifically granting the entire fee to the grantee; proper consideration of the deed looked to the entire document, and after considering case law from South Dakota that discussed S.D. Codified Laws §§ 3249, 3254, the court construed the deed as a quitclaim deed and rejected appellants’ claim that use of the word “grant” transformed the entire deed so as to also pass after-acquired title under N.D.C.C. § 47-10-15. Carkuff v. Balmer, 2011 ND 60, 795 N.W.2d 303, 2011 N.D. LEXIS 43 (N.D. 2011).

Collateral References.

Measure of damages for breach of covenant of quiet enjoyment in lease, 41 A.L.R.2d 1414, 1454.

Constitutionality.

This section does not impose or demand invidious or unreasonable discriminatory requirements; it does not violate N.D. Const. Art. I, § 20 or the Fourteenth Amendment to the U.S. Constitution.Reiss v. Rummel, 232 N.W.2d 40, 1975 N.D. LEXIS 110 (N.D. 1975).

All Other Minerals.

The words “all other minerals” contained in a lease of real property for the purpose of mining and producing oil and gas and all other minerals do not include all inorganic matter, but are subject to some limitations. MacMaster v. Onstad, 86 N.W.2d 36, 1957 N.D. LEXIS 164, 1957 N.D. LEXIS 165 (N.D. 1957).

Where granting clause of deed transferring 15/480 mineral interest said “all the oil, gas, casinghead gas, casinghead gasoline and other minerals in and under (said land)” but did not use language setting forth specifically and separately intent to convey or include coal, deed did not convey any interest in coal in described property. Reiss v. Rummel, 232 N.W.2d 40, 1975 N.D. LEXIS 110 (N.D. 1975).

The words “all other minerals” contained in an oil and gas lease covered all other minerals which could be mined from the earth, and not just oil and gas. Evangelical Lutheran Church v. Stanolind Oil & Gas Co., 251 F.2d 412, 1958 U.S. App. LEXIS 5386 (8th Cir. N.D. 1958).

Applicability.

This section was not controlling in interpreting mineral reservation in deeds made long before this section became effective. McDonald v. Antelope Land & Cattle Co., 294 N.W.2d 391, 1980 N.D. LEXIS 258 (N.D. 1980).

Life Estate.

Probate court did not err in determining the land in the legacy trust was part of the estate and in determining the extent of the decedent’s life estate in a tract of land in Divide County because the trust had no estate planning purpose and was not created to benefit the decedent as it effectively deprived her of her real property during her lifetime; and the language of the deed provided the decedent with all the oil and gas revenue from the tract of land in Divide County during her lifetime as the deed conveyed the decedent’s and her husband’s surface rights and all their right, title, and interest to any and all oil, gas, coal, and other minerals in, under or upon the land, subject to a life estate for the decedent and her husband. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

Reservation or Exception in Deed.

This section does not apply to transactions in which grantors retain mineral rights by reservation or exception; legislature intended to limit its application to those real property transactions where owners conveyed mineral rights under the circumstances outlined therein; “conveyance”, as used herein, has limited meaning and does not take on the meaning of the term as defined in N.D.C.C. § 47-19-42. Reiss v. Rummel, 232 N.W.2d 40, 1975 N.D. LEXIS 110 (N.D. 1975).

Collateral References.

Open pit mining, conveyance of minerals as including minerals recoverable only by, 1 A.L.R.2d 787.

Oil and gas as “minerals” within deed, lease or license, 37 A.L.R.2d 1440.

Clay, sand or gravel as “minerals” within deed, lease or license, 95 A.L.R.2d 843.

Coal or metallic ores; grant, lease, exception or reservation of “oil, gas and other minerals”, or the like, as including coal or metallic ores, 59 A.L.R.3d 1146.

Oil shale: grant, lease, exception or reservation of oil and/or gas rights as including oil shale, 61 A.L.R.3d 1109.

Surface mining: grant, reservation or lease of minerals and mining rights as including, without expressly so providing, the right to remove the minerals by surface mining, 70 A.L.R.3d 383.

Law Reviews.

Severed Mineral Interests, A Problem Without A Solution?, 46 N.D. L. Rev. 451 (1970).

Severed Mineral Interests, Ernest R. Fleck, 51 N.D. L. Rev. 369 (1975).

“And Other Minerals” as Interpreted by the North Dakota Supreme Court, Robert E. Beck, 52 N.D. L. Rev. 633 (1976).

The Meaning of the Word “Minerals”, 54 N.D. L. Rev. 419 (1978).

Surface Damages and the Oil and Gas Operator in North Dakota, 58 N.D. L. Rev. 457 (1982).

Applicability.

This section was not controlling in interpreting mineral reservation in deeds made long before this section became effective. McDonald v. Antelope Land & Cattle Co., 294 N.W.2d 391, 1980 N.D. LEXIS 258 (N.D. 1980).

Life Estate.

Probate court did not err in determining the land in the legacy trust was part of the estate and in determining the extent of the decedent’s life estate in a tract of land in Divide County because the trust had no estate planning purpose and was not created to benefit the decedent as it effectively deprived her of her real property during her lifetime; and the language of the deed provided the decedent with all the oil and gas revenue from the tract of land in Divide County during her lifetime as the deed conveyed the decedent’s and her husband’s surface rights and all their right, title, and interest to any and all oil, gas, coal, and other minerals in, under or upon the land, subject to a life estate for the decedent and her husband. Bouchard v. Biel (In re Estate of Brandt), 2019 ND 87, 924 N.W.2d 762, 2019 N.D. LEXIS 86 (N.D. 2019).

Reservations and Exceptions.

Where language in deed did not constitute a reservation so clearly expressed and explicit as to leave no room for doubt, and was ambiguous as to whether the exception was an exception to the grant or to the warranty, the language did not effectively except or reserve to the grantor any mineral interest. Mueller v. Stangeland, 340 N.W.2d 450, 1983 N.D. LEXIS 415 (N.D. 1983).

District court properly granted summary judgment to appellee landowner in her action to quiet title to gravel, clay, and scoria in a section of land because the reservation of minerals in a 1970 warranty deed did not include gravel, clay or scoria under North Dakota law prior to July 1, 1975—before the enactment of N.D.C.C. § 47-10-25. George v. Veeder, 2012 ND 186, 820 N.W.2d 731, 2012 N.D. LEXIS 189 (N.D. 2012).

District court erred by concluding that a warranty deed was ambiguous and N.D.C.C. § 47-10-25 did not apply because the gravel had been reserved or conveyed in earlier deeds where the warranty deed was unambiguous and did not specifically reserve the gravel or other surface minerals as required by N.D.C.C. § 47-10-25. Even if the warranty deed and release of claims were read together, neither stated that the gravel was excluded from the conveyance. Estate of Seidel v. Seidel, 2021 ND 6, 953 N.W.2d 636, 2021 N.D. LEXIS 5 (N.D. 2021).

Law Reviews.

And Other Minerals as Interpreted by the North Dakota Supreme Court, Robert E. Beck, 52 N.D. L. Rev. 633 (1976).

The Meaning of the Word “Minerals”, 54 N.D. L. Rev. 419 (1978).

Acceptance.

Under an executory contract, no title passed until the buyer accepted. Nichols & Shepard Co. v. Paulson, 6 N.D. 400, 71 N.W. 136, 1897 N.D. LEXIS 14 (N.D. 1897).

Until it was accepted, no title to a threshing machine passed under an agreement to purchase which provided that it might be returned if defective. Colean Mfg. Co. v. Feckler, 20 N.D. 188, 126 N.W. 1019, 1910 N.D. LEXIS 77 (N.D. 1910).

Identification of Like Property.

On the sale of personal property mixed with like property, separation of the part sold from the mass was not necessary for title to pass if the parties intended that title pass and the property sold had been identified. O'Keefe v. Leistikow, 14 N.D. 355, 104 N.W. 515, 1905 N.D. LEXIS 56 (N.D. 1905).

Order for Goods.

An order for goods passed no right of property therein. Sunshine Cloak & Suit Co. v. Roquette Bros., 30 N.D. 143, 152 N.W. 359, 1915 N.D. LEXIS 118 (N.D. 1915).

Vesting of Title.

The title to property would not pass so long as the contract of sale made by an agent in excess of his authority remained executory. Westby v. J. I. Case Threshing Mach. Co., 21 N.D. 575, 132 N.W. 137, 1911 N.D. LEXIS 129 (N.D. 1911).

Under an executory agreement where delivery and acceptance, vesting of title and payment were concurrent acts, the title did not vest until delivery and acceptance. Hart-Parr Co. v. Finley, 31 N.D. 130, 153 N.W. 137 (1915), explained, Orfield v. Harney, 33 N.D. 568, 157 N.W. 124, 1916 N.D. LEXIS 89 and Slimmer v. Martin, 42 N.D. 255, 172 N.W. 829, 1919 N.D. LEXIS 148 (N.D. 1919).

Where pursuant to the terms of an executory contract materials were to be furnished and labor performed, the contract was not divisible as between the material and labor so as to pass title to the materials before the required labor was performed, unless provided in the contract. Kopald Elec. Co. v. Mandan Creamery & Produce Co., 76 N.D. 503, 37 N.W.2d 253, 1949 N.D. LEXIS 72 (N.D. 1949).

Acceptance Presumed.

Acceptance of a gift is presumed, in absence of condition to be performed by donee, especially when gift is from parent to child and operates entirely to donee’s benefit. In re Estate of Paulson, 219 N.W.2d 132, 1974 N.D. LEXIS 213 (N.D. 1974).

Bill of Sale.

Where husband desires to give his personal property to his wife, the execution and delivery of a bill of sale thereof is equivalent to a delivery of the property itself. Lenihan v. Meyer, 111 N.W.2d 696, 1961 N.D. LEXIS 101 (N.D. 1961).

Delivery of Gift.

Delivery of a gift may be actual or constructive. In re Estate of Paulson, 219 N.W.2d 132, 1974 N.D. LEXIS 213 (N.D. 1974).

Joint Tenancy.

Stock owner, by causing stock to be reissued to herself and others as joint tenants, effected valid gift inter vivos even though she retained possession of new stock certificates and received the income during her lifetime. In re Estate of Paulson, 219 N.W.2d 132, 1974 N.D. LEXIS 213 (N.D. 1974).

Claiming Gift After Death of Donor.

Where a claim of a gift is not asserted until after the death of the donor, the evidence must be clear and convincing of every element requisite to constitute a gift. In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Completed Gift.

To constitute a valid gift of personal property inter vivos, the delivery of the property must clearly appear and the donee must lose all control over the same. Luther v. Hunter, 7 N.D. 544, 75 N.W. 916, 1898 N.D. LEXIS 102 (N.D. 1898).

A verbal gift is invalid if it is not accompanied by a transfer of possession or by delivery, actual or symbolical. Ramsdell v. Warner, 48 N.D. 96, 183 N.W. 281, 1921 N.D. LEXIS 14 (N.D. 1921).

A completed “gift inter vivos” is a transfer of property made voluntarily and without consideration, effective immediately and irrevocably on unconditional delivery actual or symbolical, having regard to the circumstances and nature of the property. Reel v. Hansboro State Bank, 52 N.D. 182, 201 N.W. 861, 1924 N.D. LEXIS 112 (N.D. 1924); First Nat'l Bank & Trust Co. v. Green, 66 N.D. 160, 262 N.W. 596, 1935 N.D. LEXIS 182 (N.D. 1935).

To constitute a valid, effective gift inter vivos there must be an intention on the part of the donor to then and there transfer title to the property to the donee, coupled with an actual or constructive delivery of the property of a nature sufficient to divest the donor of all dominion over the property and to invest the donee therewith. Zeman v. Mikolasek, 75 N.D. 41, 25 N.W.2d 272, 1947 N.D. LEXIS 46 (N.D. 1947); In re Estate of Kaspari, 71 N.W.2d 558, 1955 N.D. LEXIS 123 (N.D. 1955).

Conflict of Law.

As this section is a general provision dealing with all oral gifts, while N.D.C.C. ch. 30.1-31 contains specific provisions governing joint accounts and disposition of funds remaining on deposit at death, any conflict between this section and N.D.C.C. ch. 30.1-31 would be resolved in favor of the latter. 508 N.W.2d 360.

Gift Not Found.

Transfer of rental signs from a rental sign business to a sign company did not constitute an oral gift confirmed by a written agreement in light of ambiguity in the transfer agreement, as extrinsic evidence tended to establish that the transfer document was not intended to give ownership interest in the signs to the company but to allow the company to use the signs; therefore, the trial court did not err in dismissing the sign company owner’s suit for conversion after the signs and letters were taken by the rental sign business. Doeden v. Stubstad, 2008 ND 165, 755 N.W.2d 859, 2008 N.D. LEXIS 165 (N.D. 2008).

Collateral References.

Opening savings account in sole name of another, without complete surrender of passbook, as a gift, 1 A.L.R.2d 538.

Survivor’s right to contents of safe deposit box leased or used jointly with another, 14 A.L.R.2d 948.

Corporate stock, necessity of delivery of stock certificate to complete valid gift of, 23 A.L.R.2d 1171.

Bill or note of third person, necessity of delivery of, by way of gift, 25 A.L.R.2d 642.

Life insurance policy, sufficiency of delivery to constitute gift of, 33 A.L.R.2d 273, 289.

Retention of possession as affecting gift by coowner of United States Savings Bonds, 37 A.L.R.2d 1226.

Delivery as element of gift of donor’s own check, 38 A.L.R.2d 594, 605.

Tangible chattels or securities, delivery as essential to gift of, by written instrument, 48 A.L.R.2d 1405.

Suicide, sufficiency of delivery of gift made in contemplation of, 60 A.L.R.2d 575.

Delivery as requisite of gift of debt to debtor, 63 A.L.R.2d 259.

Joint lease of safe deposit box as evidence in support or denial of gift inter vivos of contents thereof, 40 A.L.R.3d 462.

Death of donor: delivery of personalty to third person with directions to deliver to donee after donor’s death as valid gift, 57 A.L.R.3d 1083.

Certificate of Deposit.

A certificate of deposit payable to a designated payee or order and not endorsed may be the subject of a gift causa mortis. Rosenau v. Merchants' Nat'l Bank, 56 N.D. 123, 216 N.W. 335, 1927 N.D. LEXIS 80 (N.D. 1927).

Delivery Necessary.

A depositor indicating by a memorandum the desired disposition of a deposit after death did not make a gift in view of death. McGillivray v. First Nat'l Bank, 56 N.D. 152, 217 N.W. 150, 1927 N.D. LEXIS 85 (N.D. 1927).

Delivery to Third Person.

Where a depositor, expecting death, delivered a key to a third person who was directed to get the certificate of deposit for the donees, there was a sufficient showing of a present intention to make a gift causa mortis. Rosenau v. Merchants' Nat'l Bank, 56 N.D. 123, 216 N.W. 335, 1927 N.D. LEXIS 80 (N.D. 1927).

Unconditional Delivery.

A gift made in contemplation of death with the understanding that if the donor does not die the property will revert is a gift causa mortis. Zuber v. Erickson, 58 N.D. 322, 226 N.W. 510, 1929 N.D. LEXIS 213 (N.D. 1929).

Collateral References.

Life insurance policy as subject of gift causa mortis, 33 A.L.R.2d 273, 289.

Donor’s own check as subject of gift causa mortis, 38 A.L.R.2d 594, 605.

Husband’s gift causa mortis as fraud on wife, 49 A.L.R.2d 521.

Suicide, nature of gift made in contemplation of, 60 A.L.R.2d 575.

Gift of debt to debtor, 63 A.L.R.2d 259.

Inclusion of funds in savings bank trust (Totten Trust) in determining surviving spouse’s interest in decedent’s estate, 64 A.L.R.3d 187.

Administration of Estate.

The subject of a gift causa mortis is not part of the donor’s estate and the personal representative cannot claim it except in case of necessity for the payment of debts which could not be paid otherwise. Seybold v. Grand Forks Nat'l Bank, 5 N.D. 460, 67 N.W. 682, 1896 N.D. LEXIS 49 (N.D. 1896).

A gift causa mortis should be treated as a legacy for the purposes of paying the actual costs of administration and for the purpose of satisfying creditors, including proper claims for funeral expenses and last illness. Rosenau v. Merchants' Nat'l Bank, 56 N.D. 123, 216 N.W. 335, 1927 N.D. LEXIS 80 (N.D. 1927).

Fraudulent Conveyances.

Where deceased transferred property to his wife one day before he died and the conveyances divested the grantor of all his property and rendered his estate insolvent, the conveyances must be held to have been made in fraud of creditors. Johnson v. Rutherford, 28 N.D. 87, 147 N.W. 390, 1914 N.D. LEXIS 87 (N.D. 1914).

Essential Terms of Oral Agreement.

Essential terms of an oral contract to continue lending money in the future include the amount and duration of the loans, interest rates, and, where appropriate, the methods of repayment and collateral for the loans, if any. Taken alone, the absence of any one of these terms may not be of great significance; however, viewed collectively, their absence is fatal to the existence of a binding contract. Delzer v. United Bank, 459 N.W.2d 752, 1990 N.D. LEXIS 153 (N.D. 1990).

Interest Rate.

Interest rate of the alleged line of credit under oral agreement could have reasonably been inferred from bank’s prevailing lending rate in the farming and ranching sector. Delzer v. United Bank, 459 N.W.2d 752, 1990 N.D. LEXIS 153 (N.D. 1990).

Loan of Money.

For a case discussing the meaning of “loan of money” or “money loaned” within the context of antideficiency statutes, see Borsheim v. Owan, 467 N.W.2d 95, 1991 N.D. LEXIS 48 (N.D. 1991).

In a case involving the default of promissory notes, summary judgment was properly granted in favor of an assignee because the notes, which were executed to finance crops, constituted traditional loans of money since they used the terms “principal” and “interest,” rather than “credit extended” and “credit service charge”; therefore, they did not fall under the definition of revolving charge account agreements. AG Acceptance Corp. v. Glinz, 2004 ND 154, 684 N.W.2d 632, 2004 N.D. LEXIS 283 (N.D. 2004).

Missing Terms or Incidentals in Loan Agreement.

In order to constitute a transaction a loan, it is not essential that there be a promissory note or a specified rate of interest or due date. If money passes from one individual to another with the understanding that it is to be repaid, the law will supply the missing details. Hook v. Crary, 142 N.W.2d 140, 1966 N.D. LEXIS 187 (N.D. 1966).

Collateral References.

Loan broker’s right to commission on transactions consummated after termination of employment, 27 A.L.R.2d 1348.

Admissibility of party’s book accounts to prove loans or payments by person by or for whom they are kept, 13 A.L.R.3d 284.

Loan brokers: measure of damages recoverable by loan broker for breach of brokerage contract, 67 A.L.R.3d 1069.

Right to recover money lent for gambling purposes, 74 A.L.R.5th 369.

State Regulation of Payday Loans, 29 A.L.R.6th 461.

Distribution of Revenue to Counties.

Excess moneys paid to certain counties through improper distribution under N.D.C.C. § 39-04-39 did not constitute loan from counties receiving too little, and this section did not apply. Richland County v. State, 180 N.W.2d 649, 1970 N.D. LEXIS 136 (N.D. 1970).

Money Loaned to Estate.

A widow is entitled to interest on sums advanced for use of the estate pending settlement. In re Korsmo's Estate, 56 N.D. 927, 220 N.W. 128, 1928 N.D. LEXIS 216 (N.D. 1928).

Real Estate Purchase Contract.

A contract containing an option to purchase real estate, which option makes no reference to interest, is controlled by this section and N.D.C.C. § 47-14-05. Kuhn v. Hamilton, 138 N.W.2d 604, 1965 N.D. LEXIS 107 (N.D. 1965).

Interest As Damages.

The statute regarding the right to interest on the recovery of damages certain or capable of being made certain by calculation fixes interest as the measure of damages for the detention of money due and payable to another. Jacobson v. Mutual Benefit Health & Accident Ass'n, 70 N.D. 566, 296 N.W. 545, 1941 N.D. LEXIS 202, 1941 N.D. LEXIS 203 (N.D. 1941).

Where money is wrongfully withheld or used without the consent of the owner, interest may be awarded as compensation. Allen v. Miller, 84 N.W.2d 571, 1957 N.D. LEXIS 133 (N.D. 1957).

Just Compensation.

Where an owner’s property is damaged within the purview of section 14 of the constitution of the state, interest from the date of the damage is a part of the just compensation the owner is entitled to recover. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).

Special Assessments.

Special assessments bear interest at the legal rate per annum from the time of delinquency. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

In General.

Interest is proper for breach of contract. Troutman v. Pierce, Inc., 402 N.W.2d 920, 1987 N.D. LEXIS 270 (N.D. 1987).

Attorney was charging the client “service charges” on her bill before the bill was due in June 1998, when the attorney quit representing the client, which constituted compensation for the use of money, not compensation for damages for the wrongful detention of money, and triggered application of the usury statutes; the attorney charged the client an interest rate higher than that permitted by N.D.C.C. § 47-14-09 before he completed his representation of her in June 1998, which was the date the court found the parties had agreed the client would pay the attorney for his services. Overboe v. Brodshaug, 2008 ND 112, 751 N.W.2d 177, 2008 N.D. LEXIS 108 (N.D. 2008).

District court erred by awarding the special prosecutor 6% per annum interest instead of the 1.5% monthly interest rate stated on the bill because N.D.C.C. ch. 47-14 applied to loans of money and there was no loan for money. Traynor Law Firm v. State, 2020 ND 108, 943 N.W.2d 320, 2020 N.D. LEXIS 107 (N.D. 2020).

Accounting Methods.

Where seller of tractor sued buyer to recover purchase price and cost of certain repairs, seller was entitled to interest at the statutory rate from time the debt arose until entry of judgment, and court used seller’s accounting methods to determine the amount due. Hoffman Motors v. Enockson, 240 N.W.2d 353, 1976 N.D. LEXIS 203 (N.D. 1976).

Contract Enforced for Statutory Rate.

A parol contract to pay interest in excess of the legal rate is enforceable as to the legal rate only. First Nat'l Bank v. Messner, 35 N.D. 78, 159 N.W. 92, 1916 N.D. LEXIS 140 (N.D. 1916).

Court’s Discretion.

The court in a divorce action is not limited to awarding interest at the legal rate specified in this section, but may award interest at any appropriate rate, commencing on any appropriate date, or may deny interest altogether. Dick v. Dick, 434 N.W.2d 557, 1989 N.D. LEXIS 16 (N.D. 1989).

Interest After Maturity.

A contract for the payment of interest in a note and mortgage executed subsequent to the statute was void to the extent that the interest after maturity exceeded the amount contracted for prior to maturity. LUTZ v. COFFEY, 61 N.D. 431, 238 N.W. 29, 1931 N.D. LEXIS 292 (N.D. 1931).

The provision requiring that contracts bear the same rate of interest after maturity as they bear before has no application to a note that is payable without interest before maturity. Allen v. Miller, 84 N.W.2d 571, 1957 N.D. LEXIS 133 (N.D. 1957).

Interest before maturity is compensation for use of money and is regulated by N.D.C.C. § 47-14-09 while interest allowed after maturity is compensation for damages for wrongful detention of money and is regulated by this section; provision in contract for higher interest rate after maturity than before, regardless of rate, is void as to such increase but will have no other effect on contract; note providing for higher than lawful rate of interest after maturity was not usurious since N.D.C.C. § 47-14-09 has application only to rate of interest chargeable before maturity. Oil Invs. v. Dallea Petroleum Corp., 152 N.W.2d 415, 1967 N.D. LEXIS 129 (N.D. 1967).

Interest As Compensatory Damages.

Where interest awarded was an element of compensatory damages, the statutory prejudgment-interest limitation was not applicable. Hart Honey Co. v. Cudworth, 446 N.W.2d 742, 1989 N.D. LEXIS 185 (N.D. 1989).

Interest landlord charged tenant after breach of the lease was compensation for damages for the wrongful detention of money and not interest charged before maturity or for the use of money, and thus was not subject to N.D.C.C. § 47-14-09. T.F. James Co. v. Vakoch, 2000 ND 9, 604 N.W.2d 459, 2000 N.D. LEXIS 9 (N.D. 2000).

Limit on Finance Charge.

Where there is no evidence of a retail installment contract, a revolving charge account agreement, or any other contract in writing about interest or finance charges and unless N.D.C.C. § 13-01-14 applies, there is no legal or contractual basis for a one and one-half percent per month finance charge, and seller would be limited to the presumed rate of interest of six percent per annum under this section. Royal Jewelers v. Kopp, 365 N.W.2d 525, 1985 N.D. LEXIS 277 (N.D. 1985).

Merchants.

A buyer’s assertion that there was no written agreement to pay interest because he did not sign any of the invoices specifying an interest charge was without merit between merchants, where the buyer did not object to the invoices. Northwestern Equip. v. Badinger, 403 N.W.2d 8, 1987 N.D. LEXIS 273 (N.D. 1987).

Monetary Awards in Divorce Actions.

It was not error to apply a two percent interest rate to a wife's equalization payment from a husband, rather than the 6.5 percent rate in N.D.C.C. § 28-20-34 or the six percent rate in N.D.C.C. § 47-14-05, because (1) no party presented evidence as to the proper rate, and (2) the court explained the reasons for setting the rate at two percent, which was within the range of rates argued by the parties. Adams v. Adams, 2015 ND 112, 863 N.W.2d 232, 2015 N.D. LEXIS 112 (N.D. 2015).

District court did not abuse its discretion in awarding interest on the husband's delayed cash payments to the wife because it compromised between the parties' interest rate proposals and required the husband to pay interest on the remaining cash award. Rebel v. Rebel, 2016 ND 144, 882 N.W.2d 256, 2016 N.D. LEXIS 145 (N.D. 2016).

Prejudgment Interest.

In the absence of a specific contractual rate of interest, prejudgment interest must be calculated at the prescribed legal rate of interest in legal and equitable actions. Hirschkorn v. Severson, 319 N.W.2d 475, 1982 N.D. LEXIS 282 (N.D. 1982).

Prejudgment interest is calculated at rate provided by this section; after judgment, interest is calculated at rate provided by N.D.C.C. § 28-20-34. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 1984 N.D. LEXIS 324 (N.D. 1984).

Prejudgment interest at six per cent per annum on partner’s share of accumulated profits following dissolution of the partnership was upheld. Tarnavsky v. Tarnavsky, 147 F.3d 674, 1998 U.S. App. LEXIS 12129 (8th Cir. N.D. 1998).

Prejudgment interest on unpaid management fees was to be calculated at the rate of 6 percent where the relevant agreement did not specify an interest rate. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206, 2008 N.D. LEXIS 118 (N.D. 2008).

Hospital, as a “medical services provider,” who did not make disclosures to the consumer required under N.D.C.C. § 13-01-15 to charge the “late payment charge” allowed under N.D.C.C. § 13-01-14.1, was still entitled to prejudgment interest under N.D.C.C. § 47-14-05 at the legal rate of six percent per annum. Weeks v. Geiermann, 2012 ND 63, 814 N.W.2d 792, 2012 N.D. LEXIS 62 (N.D. 2012).

Property Settlement in Divorce Proceeding.

This section is not a limitation upon the trial court’s authority to make an equitable distribution of property in a divorce case; trial court had authority to order party to a divorce proceeding to pay interest at a rate greater than the legal rate established by this section in equal amortized payments on the unpaid balance of the sum the other party was to receive as her part of the couple’s property to be distributed upon the divorce. Klitzke v. Klitzke, 308 N.W.2d 385, 1981 N.D. LEXIS 335 (N.D. 1981).

Suretyship Liability.

The surety on a bond is liable for interest at the legal rate from the time of the demand made upon him. Stutsman County v. Dakota Trust Co., 47 N.D. 228, 181 N.W. 586 (1921), following Guilford School Dist. v. Dakota Trust Co., 47 N.D. 235, 181 N.W. 589, 1921 N.D. LEXIS 92 (N.D. 1921).

Collateral References.

Usury: provision for interest after maturity at a rate in excess of legal rate as usurious or otherwise illegal, 28 A.L.R.3d 449.

Revolving charge account contract or plan, validity and construction of, 41 A.L.R.3d 682.

Late charge: validity and construction of provision imposing “late charge” or similar exaction for delay in making periodic payments on note, mortgage or installment sale contract, 63 A.L.R.3d 50.

Law Reviews.

Recent Developments in North Dakota Contract Law, 60 N.D. L. Rev. 227 (1984).

North Dakota Supreme Court Review, (Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, 751 N.W.2d 206 (2008)), see 85 N. Dak. L. Rev. 503 (2009).

In General.

Interest is proper for breach of contract. Troutman v. Pierce, Inc., 402 N.W.2d 920, 1987 N.D. LEXIS 270 (N.D. 1987).

Application of Section.

In the absence of a provision to the contrary, a note bears the same interest rate after maturity as before maturity. Colonial & United States Mtg. Co. v. Flemington, 14 N.D. 181, 103 N.W. 929, 116 Am. St. Rep. 670, decided prior to the enactment of Chapter 5, p. 9, of the 1905 Laws.

This section has no application to a promissory note that is payable without interest. Allen v. Miller, 84 N.W.2d 571, 1957 N.D. LEXIS 133 (N.D. 1957).

Class Action Maintainable.

Farmer was entitled to maintain class action on allegations that grain elevators were charging usurious interest on advances to farmers where the same accounting procedure for billing interest was applied to all farmers; fact that some farmers may have signed notes while others did not, that there might be individual differences as to dates of advances and repayments and amount of damages and that there was only one party plaintiff and no other persons had sought to intervene did not preclude class action. Rogelstad v. Farmers Union Grain Terminal Ass'n, 226 N.W.2d 370, 1975 N.D. LEXIS 202 (N.D. 1975).

Compensation for the Use of Money.

Attorney was charging the client “service charges” on her bill before the bill was due in June 1998, when the attorney quit representing the client, which constituted compensation for the use of money, not compensation for damages for the wrongful detention of money, and triggered application of the usury statutes; the attorney charged the client an interest rate higher than that permitted by N.D.C.C. § 47-14-09 before he completed his representation of her in June 1998, which was the date the court found the parties had agreed the client would pay the attorney for his services. Overboe v. Brodshaug, 2008 ND 112, 751 N.W.2d 177, 2008 N.D. LEXIS 108 (N.D. 2008).

Compounded Interest.

This section clearly prohibits the compounding of interest on an applicable transaction; therefore, compounded interest was unenforceable and could not be collected by an action in the courts. Haider v. Montgomery, 423 N.W.2d 494, 1988 N.D. LEXIS 126 (N.D. 1988).

Effect of Change in Legal Rate.

Legislation reducing the lawful rate of interest, enacted subsequent to the execution of a note providing for interest at a rate then valid, did not taint the note with usury. Messersmith v. Reilly, 70 N.D. 638, 296 N.W. 920, 1941 N.D. LEXIS 209 (N.D. 1941).

Where the interest provision in a promissory note was lawful at the time the note was executed, the note was not rendered usurious by the execution of a subsequent contract to pay interest in excess of the lawful rate as consideration for extension of the time for payment of the original note. Messersmith v. Reilly, 70 N.D. 638, 296 N.W. 920, 1941 N.D. LEXIS 209 (N.D. 1941).

Where an original transaction is not tainted with usury in its inception, the fact that subsequent transactions with reference to the same matter may be usurious does not render the first transaction usurious. Messersmith v. Reilly, 70 N.D. 638, 296 N.W. 920, 1941 N.D. LEXIS 209 (N.D. 1941).

Fair Debt Collection Practices Act Claim.

Appellate court agreed with the district court that the corporation was entitled to summary judgment dismissing the Federal Fair Debt Collection Practices Act claim based upon violation of N.D.C.C. § 47-14-09(1), for charging interest on overdue interest because the corporation’s interest-on-interest violation was unintentional and was caused by a bona fide error of a clerical or data entry nature under 15 U.S.C.S. § 1692k(c), and a reasonable jury could have only concluded that the corporation’s procedures were reasonably adapted to avoid such errors. Wilhelm v. Credico, Inc., 519 F.3d 416, 2008 U.S. App. LEXIS 4479 (8th Cir. N.D. 2008).

Installment Sales Contract.

An installment sales contract for the sale and purchase of a farm combine was a “retail installment contract” within provisions of N.D.C.C. ch. 51-13, and therefore fell within the exception clause of this section, rendering its provisions inapplicable to the transaction. Mandan Supply v. Steckler, 244 N.W.2d 698, 1976 N.D. LEXIS 126 (N.D. 1976).

Interest After Maturity.

Interest before maturity is compensation for use of money and is regulated by this section while interest allowed after maturity is compensation for damages for wrongful detention of money and is regulated by N.D.C.C. § 47-14-05; provision in contract for higher interest rate after maturity than before, regardless of rate, is void as to such increase but will have no other effect on contract; note providing for higher than lawful rate of interest after maturity was not usurious since this section applies only to rate of interest chargeable before maturity. Oil Invs. v. Dallea Petroleum Corp., 152 N.W.2d 415, 1967 N.D. LEXIS 129 (N.D. 1967).

Interest As Compensatory Damages.

Interest landlord charged tenant after breach of the lease was compensation for damages for the wrongful detention of money and not interest charged before maturity or for the use of money, and thus was not in violation of this section. T.F. James Co. v. Vakoch, 2000 ND 9, 604 N.W.2d 459, 2000 N.D. LEXIS 9 (N.D. 2000).

Interest on Mortgage.

A mortgage given for interest partly in excess of the highest contract rate per annum is not void in this state. Grove v. Great N. Loan Co., 17 N.D. 352, 116 N.W. 345, 1908 N.D. LEXIS 57 (N.D. 1908).

Usurious Small Loan Business.

A usurious small loan business is a nuisance and may be enjoined at the instance of the state, even though the offender is amenable to the criminal law of the state. State ex rel. Burgum v. Hooker, 87 N.W.2d 337, 1957 N.D. LEXIS 182 (N.D. 1957).

Service Charge.

Where there was no evidence in the record to show that the plaintiff was a manufacturer or wholesaler entitled to the service charge authorized by N.D.C.C. § 51-07-14, the plaintiff had not shown that it was entitled to charge interest on interest. Northwestern Equip. v. Badinger, 403 N.W.2d 8, 1987 N.D. LEXIS 273 (N.D. 1987).

Action Under Federal Statute.

The right given by federal statute to recover double the interest paid to a national bank, when the interest so paid is greater than that allowed by the laws of the state, is personal to the party paying the usurious interest, and an action to recover the same can be maintained only by such person or his legal representative. Lealos v. Union Nat'l Bank, 9 N.D. 60, 81 N.W. 56, 1899 N.D. LEXIS 138 (N.D. 1899).

Collection of Separate Claim.

The collection of another and distinct claim at the time of extending a mortgage, and demand for payment of such as condition subsequent to extending the mortgage, does not constitute usury. Miller v. Bank of Harvey, 22 N.D. 538, 134 N.W. 745, 1912 N.D. LEXIS 44 (N.D. 1912).

Computation of Double Interest.

In prescribing the amount recoverable when usurious payments have been made, plaintiff may recover double the amount of all interest payments made, and not merely the excess over the lawful rate. Waldner v. Bowdon State Bank, 13 N.D. 604, 102 N.W. 169, 1904 N.D. LEXIS 85 (N.D. 1904).

Contract Not Void.

The sale of land in mortgage foreclosure proceedings cannot be set aside because the contract was usurious. Robinson v. McKinney, 29 N.W. 658, 4 Dakota 290, 1886 Dakota LEXIS 10 (Dakota 1886).

Maximum Rate.

Where the interest rate charged under a promissory note did not exceed the maximum rate allowable, the forfeiture remedy under this section did not apply. Haider v. Montgomery, 423 N.W.2d 494, 1988 N.D. LEXIS 126 (N.D. 1988).

Payment of Interest.

In order to recover the penalty the statute contemplates an actual payment, and interest is not paid, within the meaning of the statute, by the giving of a renewal note or notes. Lindberg v. Burton, 41 N.D. 587, 171 N.W. 616, 1918 N.D. LEXIS 169 (N.D. 1918).

Although the client did not make any usurious payments to the attorney, charging a rate greater than allowed by the usury statutes triggered the usury sanctions under the first prong of N.D.C.C. § 47-14-10. Overboe v. Brodshaug, 2008 ND 112, 751 N.W.2d 177, 2008 N.D. LEXIS 108 (N.D. 2008).

Power of Court.

The parties to a usurious contract may purge it of usury by agreement, but a court of law or equity cannot do so after suit is brought and a defense of usury is interposed. Person v. Mattson, 33 N.D. 49, 156 N.W. 780, 1916 N.D. LEXIS 72 (N.D. 1916).

In General.

The hirer of personal property must repair all deteriorations or injuries thereto occasioned by his ordinary or gross negligence. Tweeten v. Miller, 477 N.W.2d 822, 1991 N.D. LEXIS 212 (N.D. 1991).

Agreement Constituted Lease.

District court did not err in ruling the 2013 agreement between the seller and the tenant was a lease which the landowner could not cancel at will because the landowner acquired the property subject to the rights of the tenants; the agreement stated it was effective until December 31, 2018, and contained provisions for monthly rent; up until the lawsuit, the parties treated the agreement as a lease; and the rent modification did not relieve the landowner of its obligations under the lease or allow it to eject the tenant from the property. Skaw ND Precast, LLC v. Oil Capital Ready Mix, LLC, 2019 ND 296, 936 N.W.2d 65, 2019 N.D. LEXIS 287 (N.D. 2019).

Conveyance of Interest in Land.

A real property lease is generally considered a contract and a conveyance of an interest in land. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

Reward May Be Labor or Services.

The reward for the possession and use of real property may be in the form of labor or services rendered, and a carpenter who paid no rent in money, but agreed to work two hours each evening for the privilege of living in an apartment, was a tenant. Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505, 1949 N.D. LEXIS 96 (N.D. 1949).

Collateral References.

What constitutes abandonment of residential or commercial lease — modern cases, 84 A.L.R.4th 183.

Agricultural Land.

In a partnership dispute, a reviewing court did not have to address a trial court’s interpretation of agricultural land in N.D.C.C. § 47-16-02 because, even assuming there was a possessory interest in a bin site, there was evidence to support the finding that a partner was not ejected from the bin site. The testimony showed that a truck was parked across a road to prevent the removal of equipment, but not to prevent the use of the bins. Knudson v. Kyllo, 2012 ND 155, 819 N.W.2d 511, 2012 N.D. LEXIS 155 (N.D. 2012).

A son's two leases with his mother for farmland were valid and enforceable because each was by operation of law limited to the life estate interest of the mother and thus contained a conditional term not necessarily in excess of 10 years. Vig v. Swenson, 2017 ND 285, 904 N.W.2d 489, 2017 N.D. LEXIS 296 (N.D. 2017).

District court erred in entering a judgment in favor of an owner following cross-motions for summary judgment because, even if the district court concluded that document at issue was subject to the 10-year statutory restriction of agricultural leases, the document was ambiguous with regard to whether it was an option to purchase, a contract for deed, or a lease, the court had to consider whether the document had a separate, distinct, and enforceable objective of providing the first lessee with a right of first refusal. Heitkamp v. Kabella, 2019 ND 96, 925 N.W.2d 446, 2019 N.D. LEXIS 101 (N.D. 2019).

Contracts Not Within Terms of Statute.

A lease of agricultural land “for the full term of forty years or during the full term of the natural life” of the lessees, for a certain cash consideration, conveyed a life estate and not an estate for years, and the same was not within the condemnation of this section. Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 1903 N.D. LEXIS 16 (N.D. 1903).

A contract whereby lower riparian owner, in consideration of furnishing electricity for fifteen years, conveyed to the upper riparian owner the right to discharge waste products into the stream to be carried off through the premises of the lower riparian owner was not void as condemned by this statute. Johnson v. Armour & Co., 69 N.D. 769, 291 N.W. 113, 1940 N.D. LEXIS 206 (N.D. 1940).

A lease of agricultural land reserving rent or service of any kind which “shall continue so long as any one of the owners is still alive”, although of indefinite duration, is not a lease for a longer period than ten years, and is valid for the life of the surviving lessor or at least ten years from the date of the complete execution thereof if she lives that long. Anderson v. Blixt, 72 N.W.2d 799, 1955 N.D. LEXIS 145 (N.D. 1955).

In order for the ban on leases of agricultural lands for a term of more than ten years to apply, the property must actually be leased for agricultural purposes, not merely suitable for such purposes; thus the term of a lease of a radio transmission tower site on farmland was not limited by the ten-year provision. Berry-Iverson Co. v. Johnson, 242 N.W.2d 126, 1976 N.D. LEXIS 222 (N.D. 1976).

Lease of agricultural lands for the purpose of mining sand, gravel, and rock was not subject to the ten-year limitation of this section where, although not specifically stated in the lease, a construction of the entire lease authorized the lessee to use the land for mining purposes only and did not authorize its use for agricultural purposes, and the land was in fact used only for mining purposes by the lessee. Trauger v. Helm Bros., 279 N.W.2d 406, 1979 N.D. LEXIS 256 (N.D. 1979).

District court properly declared that the tenants complied with a lease relating to grain and farm equipment storage, declared the lease remained in effect, and dismissed the landlord's eviction action because the leased property was not agricultural land where the lease plainly stated that it was not suitable for farming and excluded pasture land, and remained functional—which the family equated with “good condition and repair”—since the lease was executed. Zundel v. Zundel, 2017 ND 217, 901 N.W.2d 731, 2017 N.D. LEXIS 221 (N.D. 2017).

No Violation of Statute.

Language of the agreement used the term “in perpetuity” in conjunction with other terms, including allowing the sale of the property at any time and the ability to opt out, and either the lessor or the lessee could terminate the lease within 10 years and both were uncertain events, and thus the agreement did not necessarily extend for a period longer than 10 years under the statute, and the district court did not err in finding the agreement did not violate the statute and was not invalid. Anderson v. Lyons, 2014 ND 61, 845 N.W.2d 1, 2014 N.D. LEXIS 62 (N.D. 2014).

“Rent” Defined.

The term “rent” is a profit arising out of land and payable periodically. Wegner v. Lubenow, 12 N.D. 95, 95 N.W. 442, 1903 N.D. LEXIS 16 (N.D. 1903); Johnson v. Armour & Co., 69 N.D. 769, 291 N.W. 113, 1940 N.D. LEXIS 206 (N.D. 1940).

Collateral References.

Construction and effect of statutes limiting duration of agricultural leases, 17 A.L.R.2d 566.