IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 33

Stanley R. Nevin, Plaintiff

and

Northern Oil and Gas, Inc., Plaintiff, Intervenor and Appellant 

v. 

Helen L. H. Kennedy; Gena Baker f/k/a Gena

Kennedy; Nona Kennedy; Jason Craig Newburn, 

as personal representative of Maura Kay Newburn, 

deceased: Keira Kennedy Adams; Jess Anne Knutson; 

Charles Herbert Jacobson; Miles G. Johnsrud 

and Marlene Kay Johnsrud, as Co-Trustees of 

the Miles and Marlene Johnsrud Family Mineral 

Trust under Agreement dated July 13, 2011; 

JoAnn Kennedy; Scott Cameron, as Trustee of the

Scott Cameron Trust dated June 13, 2013;

Shannon Kristine Dusek and David Alan Dusek, 

as Trustees of the Shannon and David Dusek 

Family Revocable Trust; Tiffany Papagno, 

as Personal Representative of the Estate of 

Thomas W. Kennedy, deceased; Robert W. Kennedy;

Michael Kennedy; Lisa Marie Kennedy; Lisa Marie Kennedy; 

James M. Kennedy; Jodie Thompson Woroniecki, as

Personal Representative of the Estate of

Barbra Kennedy Johnson a/k/a Barbara Kennedy Johnson, 

deceased; Michelle Grass; Colleen Zychowicz 

f/k/a Colleen Kennedy; Debra Kennedy Griffie; 

Benjamin J. Larson; Rainbow Energy

Marketing Corporation; Northern Energy

Corporation; Landmark Oil and Gas, LLC,

Missouri River Royalty Corporation; Spartan

Minerals & Royalty LLC; Sven Resources,

LLC; Continental Resources, Inc.; Burlington

Resources Oil & Gas Company LP; Defendants and Appellees

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 3, 2023 

STATE OF NORTH DAKOTA
and

XTO Holdings, LLC; PetroShale (US), Inc.; 

Bole Resources LLC; Brooks Energy Inc.; 

CJC Energy Inc.; KT Energy Inc., Mel Energy Inc.;

Noble Royalty Access Fund 12 LP; Noble Access 

Royalty Fund 13 LP; North Fork AD3, LLC; 

Outdoor Entourage Inc.; G. William Hurley Revocable

Trust; Hurley Oil Properties Inc.; Wind River Resources

Inc.; WHC Exploration LLC; Dakota West, LLC; Marvin

J. Masset; Avalon North, LLC; Peter Masset;

Newport Minerals, Ltd.; Deep Rock Resources, LLC;

Donald James Kennedy, Jr,; Steven Shannon Kennedy;

and all other persons unknown claiming any estate

or interest in or lien or encumbrance upon the property

described in the Complaint, whether as heirs,

devisees, legatees, or personal representative

of any of the above-named persons who may

be deceased or under any other title or interest, Defendants 

No. 20220136

Appeal from the District Court of McKenzie County, Northwest Judicial 

District, the Honorable Robin A. Schmidt, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice, in which Chief Justice Jensen, and 

Justices McEvers and Tufte joined. Hagerty, S.J., filed a dissenting opinion.

Nick A. Swartzendruber, Denver, CO, for plaintiff and appellee Northern Oil 

and Gas, Inc. 
Trevor A. Hunter, Williston, ND, for defendants and appellees Helen L. H. 

Kennedy, Gena Baker f/k/a Gena Kennedy; Nona Kennedy, Jason Craig 

Newburn, as personal representative of Maura Kay Newburn, deceased; Keira 

Kennedy Adams; Jess Anne Knutson; Charles Herbert Jacobson; Miles G. 

Johnsrud and Marlene K Johnsrud, Co-Trustees of the Miles and Marlene 

Johnsrud Family Mineral Trust under agreement dated July 13, 2011; JoAnn 

Kennedy; Scott Cameron, Trustee of the Scott Cameron Trust dated June 13, 

2013; Shannon Kristine Dusek and David Alan Dusek, as Trustees of the 

Shannon and David Dusek Family Revocable Trust; Tiffany Papagno, as 

Personal Representative of the Estate of Thomas W. Kennedy, deceased; Robert 

W. Kennedy; Michael Kennedy; Lisa Marie Kennedy; James M. Kennedy; Jodie

Thompson Woroniecki, as Personal Representative of the Estate of Barbra

Kennedy Johnson a/k/a Barbara Kennedy Johnson, deceased; Michelle Grass;

Colleen Zychowicz f/k/a Colleen Kennedy; and Debra Kennedy Griffie.

James E. Dallner (appeared), Parker, CO, for defendant and appellee 

Continental Resources, Inc.

Jonathon D. Bergman (appeared) and Jennifer S. Allen (appeared), Denver, 

CO, for defendant and appellee Burlington Resources Oil & Gas Company LP.

Lawrence Bender (on brief) and Spencer D. Ptacek (on brief), Bismarck, ND, 

for defendants and appellees Rainbow Energy Marketing Corporation, 

Northern Energy Corporation, Landmark Oil and Gas, LLC, Missouri River 

Royalty Corporation, Spartan Minerals & Royalty LLC, and Sven Resources, 

LLC.
1

Nevin, et al. v. Kennedy, et al.

No. 20220136

Crothers, Justice.

[¶1] Northern Oil and Gas, Inc., appeals from a quiet title judgment deciding 

Northern Oil did not own mineral interests in certain McKenzie County 

property. Northern Oil argues the district court erred in concluding the deeds 

at issue are ambiguous as to whether Angus Kennedy intended to reserve 

minerals to his wife, Lois Kennedy. We affirm.

I

[¶2] Angus Kennedy owned real property and mineral interests in McKenzie 

County. On March 10, 1960, Angus Kennedy and his wife, Lois, executed two 

deeds conveying the surface and “excepting and reserving unto the parties of 

the first part, their heirs, successors or assigns, all right, title and interest in 

and to any and all . . . minerals in or under the foregoing described lands.” Lois 

Kennedy did not own an interest in the property when Angus and Lois 

Kennedy executed the deeds.

[¶3] Angus Kennedy died in 1965, and Lois Kennedy died in 1980. Angus and 

Lois Kennedy did not have children together. Angus Kennedy had six children

from a previous marriage. Angus Kennedy’s heirs executed numerous mineral 

leases for the property. Lois Kennedy had one child, Julia Nevin, who died in 

1989. In 2016 and 2017, Julia Nevin’s surviving husband, Stanley Nevin, 

executed mineral leases with Northern Oil.

[¶4] In 2018, Stanley Nevin sued the successors in interest to Angus Kennedy, 

alleging Lois Kennedy owned half of the minerals reserved in the 1960 deeds. 

In response, the Angus Kennedy heirs claimed Angus Kennedy did not intend 

to reserve any minerals to Lois Kennedy because she did not own an interest 

in the property conveyed in the 1960 deeds. The district court granted 

Northern Oil’s motion to intervene. 

[¶5] Nevin and the Kennedy heirs each moved for summary judgment. The 

district court denied both parties’ summary judgment motions, concluding “the 
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evidence before the court permits reasonable inferences that support the 

positions of both sides in this controversy.” It further determined “the 

reservation clause in the 1960 Deeds is ambiguous as to what Angus intended, 

and thus extrinsic evidence . . . must be considered in order to properly 

determine intent.” 

[¶6] At a March 2021 bench trial, the district court heard testimony from 

Angus Kennedy’s grandson, James M. Kennedy. The court considered the 

deposition testimony of a former attorney who knew Angus Kennedy. The 

Kennedy heirs presented evidence relating to Angus Kennedy’s probate 

proceedings. The court found Angus Kennedy did not intend to reserve 

minerals to Lois Kennedy in the 1960 deeds. The court also concluded the final 

decree entered in Angus Kennedy’s probate precluded Nevin’s and Northern 

Oil’s claims against the Kennedy heirs. The court ruled Nevin and Northern 

Oil do not own mineral interests in the property. The court entered a judgment 

quieting title in the minerals to the Kennedy heirs. Northern Oil appeals the 

judgment.

II

[¶7] Northern Oil argues the district court erred in concluding the 1960 deeds 

were ambiguous.

[¶8] Deeds are interpreted in the same manner as contracts, and the primary 

purpose in construing a deed is to ascertain and effectuate the grantor’s intent. 

Hallin v. Lyngstad, 2013 ND 168, ¶ 8, 837 N.W.2d 888. Whether a contract is 

ambiguous is a question of law. Nichols v. Goughnour, 2012 ND 178, ¶ 12, 820 

N.W.2d 740. “On appeal, we independently review a contract to determine if it 

is ambiguous.” Id. The language of a deed governs its interpretation if the 

language is clear and explicit. N.D.C.C. § 9-07-02. If possible, the parties’ 

mutual intentions must be ascertained from the four corners of the deed. 

N.D.C.C. § 9-07-04; Hallin, at ¶ 8. Like a contract, deeds must be interpreted

“to give effect to the mutual intention of the parties as it existed at the time of 

contracting.” N.D.C.C. § 9-07-03. “A contract may be explained by reference to 

the circumstances under which it was made and the matter to which it relates.” 

N.D.C.C. § 9-07-12.
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[¶9] When the language of a deed is plain and unambiguous and the parties’ 

intentions can be ascertained from the document alone, extrinsic evidence is 

not admissible to alter, vary, explain, or change the deed. Nichols, 2012 ND 

178, ¶ 12. If a deed is ambiguous, extrinsic evidence may be considered to 

clarify the parties’ intentions. Id.

[¶10] Here, the district court concluded without explanation that the 1960 

deeds are ambiguous. Because that is a question of law, we apply de novo 

review. Hallin, 2013 ND 168, ¶ 8. Upon that review, we also conclude the deeds 

are ambiguous because of the deeds’ wording and the state of the law in 1960.

[¶11] When the deeds were executed in 1960, North Dakota followed the 

common law rule, as we described in Malloy v. Boettcher:

“In Stetson v. Nelson, 118 N.W.2d 685 (N.D. 1962), this Court 

followed the common law rule that a reservation or exception in a 

deed of conveyance cannot operate as a conveyance to a third party 

who is a stranger to the title or deed:

‘While a reservation and exception purporting to 

be in favor of a stranger cannot operate as a 

conveyance to him of the excepted interests in the 

land, such an exception is effectual to prevent the title 

to the excepted interests from passing to the grantee.

. . . .

‘Thus a reservation or exception purporting to be 

in favor of a stranger operates in favor of the grantor 

and prevents the title to the excepted or reserved 

property from passing to the grantee.’ 118 N.W.2d at 

688.”

334 N.W.2d 8, 8-9 (N.D. 1983).

[¶12] Not until 1983 in Malloy did this Court suggest the common law rule had 

been abandoned:
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“For reasons hereinafter discussed, we abandon the common 

law rule and apply, in its stead, the rule that a reservation or 

exception can be effective to convey a property interest to a third 

party who is a stranger to the deed or title of the property where 

that is determined to have been the grantor’s intent.”

334 N.W.2d at 9.

[¶13] In Hallin v. Lyngstad, 2013 ND 168, ¶¶ 12-13, we described the effect of 

the holding in Malloy:

“Malloy was a split decision in which four Justices in three 

separate concurrences agreed only in the result reached by Chief 

Justice Erickstad. Malloy, at 10-12. The concurring Justices 

refused to abrogate the holding in Stetson [v. Nelson, 118 N.W.2d 

685 (N.D. 1962)], because a spouse is not a true ‘stranger’ to the 

title or deed. See Malloy, at 10-12.

“The effect of Malloy was to retain the common law rule, as 

stated in Stetson, but to hold an exception or reservation may be 

effective to convey property to a spouse who does not have an 

interest in the property but joins in the deed’s execution, when that 

is determined to have been the grantor’s intent.”

[¶14] Here, the district court acknowledged that “[i]f the language used in the 

1960 Deed[s] were unambiguous, the decision in Malloy would control. 

However, the reservation clause in the 1960 Deeds is ambiguous as to what 

Angus intended, and thus extrinsic evidence, which was not available in 

Malloy, must be considered in order to properly determine intent.” 

[¶15] Like the deed in Malloy, the deeds here identify Angus and Lois Kennedy

as “parties of the first part.” The deeds excepted and reserved “unto the parties 

of the first part, their heirs, successors or assigns, all right, title and interest 

in and to any and all . . . minerals in or under the foregoing described lands.” 

[¶16] The 1960 deeds were executed when North Dakota followed the common 

law rule; yet they were drafted with wording suggesting the grantors believed 

a different rule applied. The language in these deeds is ambiguous as a result

of using words that were inconsistent with the law, and in light of the change 
5

in legal rules between then and now. Specifically, the reservation of an interest 

to “parties of the first part,” one of whom had no interest in the property, makes 

the deeds ambiguous about whether the deeds expressed an intent to effect a 

conveyance to a stranger to the title. See also N.D.C.C. § 47-09-17 (“A present 

interest and the benefit of a condition or covenant respecting property may be 

taken by any natural person under a grant although not named a party 

thereto.”); Malloy, 334 N.W.2d at 11-12, Sand, J., concurring (suggesting 

common law may have been abrogated with the adoption of N.D.C.C. § 47-09-

17).

[¶17] Because the 1960 deeds are ambiguous when viewed in the context of the 

circumstances when they were made, the district court properly considered

evidence beyond the four corners of the deeds. On this record, the evidence 

supports the court’s findings of the meaning and effect of the ambiguity, and 

therefore are not clearly erroneous.

[¶18] The judgment quieting title to the minerals in favor of the successors to 

Angus Kennedy is affirmed.

III

[¶19] We have considered the parties’ remaining arguments and conclude they 

are either without merit or not necessary to our decision. The judgment is 

affirmed.

[¶20] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Hagerty, S.J., dissenting.

[¶21] Because I conclude the language of the 1960 deeds was unambiguous, I 

would reverse. 

[¶22] Honorable Gail Hagerty, S.J. 
6

[¶23] Gerald W. VandeWalle, who was a member of the Court when this matter 

was submitted, was disqualified and did not participate in this decision. The 

Honorable Gail Hagerty, S.J., sitting.