Background

• In 1953, Northern Pacific Railway (NP) granted Standard Oil a permit to construct, operate, and maintain a 22-inch sewer pipeline and related facilities across NP’s right of way from Mandan to the Heart River, with rent and maintenance at Standard’s expense.
• The permit is titled as a permanent irrigation canal, drainage canal, water pipe, or sewer pipe permit and requires Standard to pay $25 annual rent and bear all costs.
• Over time, NP’s successor became BNSF; in 1998 BNSF conveyed the property containing the pipeline to Marmot Properties, and in 2004 Marmot conveyed to Riverwood Commercial Park, all subject to existing encumbrances.
• Tesoro Refining acquired the Mandan refinery in 2001; in 2004 Tesoro filed a Notice of Permit with Morton County, reflecting the 1953 permit attached.
• Riverwood developed the property and sued for various claims, but the district court, and on appeal, held the 1953 permit created an easement, not a license.
• Riverwood II clarified that some claims were not barred by res judicata or collateral estoppel, but on remand the court again granted summary judgment declaring an easement.

Issues

Key Cases Cited

• Riverwood Commercial Park, LLC v. Standard Oil Co., Inc., 2005 ND 118 (2005) (ambiguity; easement vs license; background in Riverwood I)
• Riverwood Commercial Park, L.L.C. v. Standard Oil Co. Inc., 2007 ND 36 (2007) (Riverwood II; res judicata and other claims not barred)
• Sinclair Pipe Line Co. v. United States, 287 F.2d 175 (Ct. Cl. 1961) (license versus easement terminology; conveyance language)
• Burlington Northern R.R. Co. v. Fail, 2008 ND 114 (2008) (quit claim deeds; describe encumbrances; post-1977 easement binding)
• Lee v. North Dakota Park Serv., 262 N.W.2d 467 (N.D. 1977) (license revocable at will; distinction from easement)
• Ackre v. Chapman & Chapman, P.C., 2010 ND 167 (2010) (summary judgment standard; genuine issues of material fact)