Alternatives in Accretion: Why There Is Not Yet an Appropriate Solution to the Application of Accretion Law to Mineral Estates

Brigham Young University Law Review, 2004 by Brough, Daniel K

I. INTRODUCTION

Accretion, a term generally referring to the deposit or removal of sediment from riparian land by the movement of water,1 has both diminished and augmented surface estate boundaries in many instances.2 In ownership-in-place (or possessory3) jurisdictions,4 courts have held that severed5 as well as unsevered mineral estates6 are subject to accretion. That position, however, is susceptible to criticism on several grounds.7 In turn, those criticisms are themselves subject to criticism and the alternatives are equally untenable. Because commentators have not touched the issue recently, extensively,8 or possibly even correctly,9 the time may have come to revisit this topic, particularly in light of the fact that accretion cases have cropped up as recently as 2000.10

This Comment argues that neither courts nor commentators have presented a workable answer to the problem of the application of accretion law to mineral estates, that other alternatives are equally problematic, and that the confusion and contradiction inherent in the relationship between accretion law and mineral estates is in need of resolution. However, each alternative solution to the problem of accretion and mineral estates is nearly as problematic as the others. Part II of this Comment defines accretion, gives background to the law of mineral ownership in ownership-in-place and nonpossessory jurisdictions, and provides an introduction to the legal problems stemming from the effect of accretion on mineral estates. Part III presents alternative answers to how accretion law should apply to mineral estates. First, it presents the courts' approach-that both severed and unsevered mineral estates should be subject to accretion. Through reliance on common law, three jurisdictions have held that severed mineral estates are susceptible to accretion, and a fourth has reached the identical result by interpreting a state statute. Part III then notes criticisms of those decisions that arose soon after they were issued. It then presents a second alternative derived from those criticisms: that unsevered mineral estates should be subject to accretion, but that severed mineral estates should be immune. While the second option partially addresses the faults of the courts' approach, it could nevertheless complicate the ascertainment of mineral estate boundaries.11 Part III then presents a third option: immunize all mineral estates, severed and unsevered, from accretion. That result, while supported by the same rationale that supports the second alternative, would produce de facto severances of surface and mineral estates in contravention of the surface and mineral estate owners' intent. Part III then presents a fourth approach: abolishing accretion law entirely.12 This approach, however, ignores the important functions accretion law performs in the allocation of mineral resources. Part IV suggests two considerations that future commentators should keep in mind when considering or discussing the accretion question: (1) that accretion should have no effect on unsevered mineral estates, and (2) that accretion should have no bearing at all on minerals in nonpossessory jurisdictions. It also suggests that if courts are pressed to choose one of the four options presented in this Comment, the first approach-applying accretion law to both severed and unsevered mineral estates-is the best option. Part V offers a conclusion.

II. BACKGROUND AND DEFINITIONS: THE GEOGRAPHIC AND LEGAL EFFECTS OF ACCRETION IN SURFACE ESTATES

A. Preliminary Definitions and Accretion as Applied to Surface Estates

"Accretion" refers to the process by which the movement of water gradually adds soil to an adjoining shoreline such that the deposited soil becomes land and expands the boundaries of the surface estate.13 In contrast, "erosion" refers to a loss of soil caused by water movement that diminishes the banks of a body of water.14 For the sake of simplicity, this Comment will use the term "accretion" to refer to the combined processes of water adding to and taking away from the shoreline of a body of water.15 The doctrine of accretion holds that accreted land becomes the property of the owner of the surface estate to which the accreted land attaches,16 and that rights of way and easements to and from the water continue over accreted land.17

Accretion may affect the boundaries of surface estates in a number of ways. For example, a river may serve as a boundary between two surface estates. That river may be either navigable or nonnavigable.18 If nonnavigable, its center line is the boundary between the two estates,19 but if navigable, the state likely owns title to the underlying riverbed under the equal footing doctrine.20 If the river changes course even minutely (for instance, if the process of accretion removes sediment from one side of a river and deposits it on the other, exaggerating a bend in the river's path), the adjoining surface estates' boundaries will be correspondingly altered. If the river is nonnavigable, its center line will move with the river's changed course and alter the boundary between the two surface estates-adding to one surface estate while taking away from the other. But if the river is navigable, the boundary between the surface estates on either side of the river will be changed along with the boundaries of the state's surface estate in the riverbed.21 A similar result occurs in the case of a lake: as the shoreline contracts or expands, the riparian boundaries of the surface estate will correspondingly contract or expand.