CHAPTER 21-10
REMEDIES AGAINST NUISANCES
21-10-1 Acts and omissions constituting nuisances.
21-10-2 Acts under statutory authority not deemed nuisance.
21-10-3 Public and private nuisances defined.
21-10-4 Public nuisance not legalized by lapse of time.
21-10-5 Remedies against nuisances enumerated.
21-10-6 Abatement of nuisance--Notice required--Taxing cost of abatement--Civil action.
21-10-7 Damages for past injury recoverable after abatement.
21-10-8 Liability of successive owners for continuing nuisance.
21-10-9 Persons entitled to maintain civil action against nuisance--Injunction and damages recoverable.
21-10-10 House of ill fame declared nuisance--Injunction and abatement.
21-10-11 State's attorney or citizen entitled to maintain action for injunction against house of ill fame.
21-10-12 Temporary injunction against house of ill fame--Proof required--Notice to defendant.
21-10-13 Binding effect on defendant of injunction against house of ill fame--Violation as contempt.
21-10-14 Approval required for dismissal of action against house of ill fame--Substitution of parties plaintiff.
21-10-15 Action against house of ill fame triable at first term of court--Evidence of reputation admissible.
21-10-16 Costs taxable to plaintiff on finding of no reasonable ground.
21-10-17 Order of abatement against house of ill fame--Removal and sale of property--Building closed--Use of building as contempt.
21-10-18 Officer's fees for enforcing order of abatement against house of ill fame--Proceeds of sale of property.
21-10-19 Release of property to owner on payment of costs and filing of bond--Conditions of bond--Effect of release.
21-10-20 Punishment of violations of injunction--Arrest and trial--Penalty.
21-10-21 21-10-21 to 21-10-24. Repealed by SL 2014, ch 108, §§ 3 to 6.
21-10-25 Agricultural operation defined.
21-10-25.1 Costs assessed against plaintiff in certain agricultural operation nuisance actions.
21-10-25.2 State policy to protect agricultural operations from nuisance suits.
21-10-25.3 Agricultural operations protected.
21-10-25.4 Damages due to water pollution or land overflow not affected by protected status.
21-10-25.5 Agricultural operation within municipality not protected.
21-10-25.6 Frivolous action against agricultural operation--Costs and expenses recoverable.
21-10-25.7 Agricultural operation nuisance--Compensatory damages.
21-10-25.8 Agricultural operation nuisance--Punitive damages.
21-10-25.9 Agricultural operation nuisance--Applicability of limitations.
21-10-25.10 Agricultural operation nuisance--Standing--Burden of proof--Violation required.
21-10-26 Logging slash defined.
21-10-27 Abandonment of logging slash as public nuisance--Penalty.
21-10-28 Use or operation of sport shooting range.
21-10-28.1 Significant threat to human life or private habitations.
21-10-29 Injunction not available to certain adversely affected property owners.
21-10-30 Recovery based on negligence or willful or wanton misconduct not precluded.
21-10-31 Provisions inapplicable where substantial change in primary use has occurred.
21-10-32 Regulation of sport shooting ranges not prohibited.
21-10-33 Sport shooting range defined.
21-10-34 Prospective application of §§ 21-10-28 to 21-10-33.
21-10-1. Acts and omissions constituting nuisances.
A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, sidewalk, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property.
Source: CivC 1877, § 2047; CL 1887, § 4681; RCivC 1903, § 2393; RC 1919, § 2066; SDC 1939 & Supp 1960, § 37.4701; SL 2020, ch 30, § 14.
21-10-2. Acts under statutory authority not deemed nuisance.
Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.
Source: CivC 1877, § 2050; CL 1887, § 4684; RCivC 1903, § 2396; RC 1919, § 2069; SDC 1939 & Supp 1960, § 37.4703.
21-10-3. Public and private nuisances defined.
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private.
Source: CivC 1877, §§ 2048, 2049; CL 1887, §§ 4682, 4683; RCivC 1903, §§ 2394, 2395; RC 1919, §§ 2067, 2068; SDC 1939 & Supp 1960, § 37.4702.
21-10-4. Public nuisance not legalized by lapse of time.
No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.
Source: CivC 1877, § 2053; CL 1887, § 4687; RCivC 1903, § 2399; RC 1919, § 2072; SDC 1939 & Supp 1960, § 37.4704.
21-10-5. Remedies against nuisances enumerated.
Remedies against any nuisance are:
(1) A civil action;
(2) Abatement; and
(3) In cases of public nuisance only, the additional remedy of indictment or information as prescribed by statute and rules relating thereto.
Source: CivC 1877, §§ 2054, 2055, 2059; CL 1887, §§ 4688, 4689, 4693; RCivC 1903, §§ 2400, 2401, 2405; RC 1919, §§ 2073, 2074, 2086; SDC 1939 & Supp 1960, § 37.4707.
21-10-6. Abatement of nuisance--Notice required--Taxing cost of abatement--Civil action.
A public nuisance may be abated without civil action by any public body or officer as authorized by law. Any municipality, county, or township may defray the cost of abating a public nuisance by taxing the cost thereof by assessment against the real property on which the nuisance occurred or against the real property abutting or adjoining the unrepaired sidewalk as set forth in § 9-46-2. If the nuisance abated is an unsafe or dilapidated building, unrepaired sidewalk, junk, trash, debris, or similar nuisance arising from the condition of the property, the municipality, county, or township may commence a civil action against the owner of the real property for its costs of abatement in lieu of taxing the cost by special assessment.
Any private person may abate a public nuisance which is specially injurious to that person or any private nuisance injurious to that person by removing or if necessary destroying that which constitutes the nuisance without committing a breach of the peace or doing unnecessary injury. If a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon the wrongdoer's land, reasonable notice shall be given to the wrongdoer before entering to abate it.
Source: SDC 1939 & Supp 1960, § 37.4707; SL 1981, ch 167; SL 1991, ch 182; SL 2004, ch 145, § 1; SL 2020, ch 30, § 15.
21-10-7. Damages for past injury recoverable after abatement.
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.
Source: CivC 1877, § 2052; CL 1887, § 4686; RCivC 1903, § 2398; RC 1919, § 2071; SDC 1939 & Supp 1960, § 37.4706.
21-10-8. Liability of successive owners for continuing nuisance.
Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it.
Source: CivC 1877, § 2051; CL 1887, § 4685; RCivC 1903, § 2397; RC 1919, § 2070; SDC 1939 & Supp 1960, § 37.4705.
21-10-9. Persons entitled to maintain civil action against nuisance--Injunction and damages recoverable.
The remedy by civil action against public nuisance may be maintained by any public body or officer authorized thereto by law or official duty, or by any private person if it is specially injurious to himself. Such remedy also may be used by any person whose property is injuriously affected or whose personal enjoyment is lessened by any nuisance public or private. In all such actions the nuisance may be enjoined, or ordered abated, and damages recovered in addition.
Source: CivC 1877, § 2056; CCivP 1877, § 651; CL 1887, §§ 4690, 5465; RCivC 1903, § 2402; RCCivP 1903, § 692; RC 1919, §§ 2075, 2873; SDC 1939 & Supp 1960, § 37.4707.
21-10-10. House of ill fame declared nuisance--Injunction and abatement.
Whoever shall own, lease, establish, maintain, or operate any place for purposes of lewdness, assignation, or prostitution, is guilty of a nuisance and the place, including ground, and all contents are declared a nuisance and shall be enjoined and abated as provided in §§ 21-10-11 to 21-10-20, inclusive.
Source: SL 1913, ch 123, § 1; RC 1919, § 2078; SDC 1939 & Supp 1960, § 37.4801.
21-10-11. State's attorney or citizen entitled to maintain action for injunction against house of ill fame.
Whenever a nuisance is kept, maintained, or exists, as defined in § 21-10-10, the state's attorney or any citizen of the county may maintain an action in equity in the name of the state, upon the relation of such state's attorney or citizen, perpetually to enjoin said nuisance, the person or persons conducting the same, and the owner or agent of the building or ground upon which said nuisance exists.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-12. Temporary injunction against house of ill fame--Proof required--Notice to defendant.
In an action under § 21-10-11 the court, or a judge in vacation, shall upon the presentation of a complaint alleging that the nuisance complained of exists, allow a temporary injunction without bond, if it shall be made to appear to the satisfaction of the court or judge by evidence in the form of affidavits, depositions, oral testimony, or otherwise, as the plaintiff may elect that such nuisance exists, unless the court or judge, by previous order, shall have directed the form and manner in which it shall be presented. Three days' notice in writing shall be given the defendant of the hearing of the application, and if then continued at his instance, the temporary injunction shall be granted as a matter of course.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-13. Binding effect on defendant of injunction against house of ill fame--Violation as contempt.
When an injunction has been granted pursuant to § 21-10-12, it shall be binding on the defendant throughout the judicial circuit in which it was issued, and any violation of such injunction shall be a contempt as provided in § 21-10-20.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-14. Approval required for dismissal of action against house of ill fame--Substitution of parties plaintiff.
If the complaint in an action pursuant to § 21-10-11 is filed by a citizen, it shall not be dismissed except upon a sworn statement made by the plaintiff and his attorney setting forth the reasons why the action should be dismissed, and the dismissal approved by the state's attorney, in writing, or in open court. If the court is of the opinion that the action ought not to be dismissed, he may direct the state's attorney to prosecute said action to judgment, and if the action is continued more than one term of court, any citizen of the county or the state's attorney may be substituted for the party plaintiff and prosecute said action to judgment.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-15. Action against house of ill fame triable at first term of court--Evidence of reputation admissible.
An action pursuant to § 21-10-11 when brought shall be triable at the first term of court after due and timely service of the notice has been given, and in such action evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of such nuisance.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-16. Costs taxable to plaintiff on finding of no reasonable ground.
If an action pursuant to § 21-10-11 is brought by a citizen, and the court finds there was no reasonable ground or cause for said action, the costs may be taxed to such citizen.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-17. Order of abatement against house of ill fame--Removal and sale of property--Building closed--Use of building as contempt.
If the existence of the nuisance be established in an action as provided in § 21-10-11, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. If any person shall break and enter or use a building, erection, or place so directed to be closed, he shall be punished as for contempt as provided in § 21-10-20.
Source: SL 1913, ch 123, § 5; RC 1919, § 2082; SDC 1939 & Supp 1960, § 37.4805.
21-10-18. Officer's fees for enforcing order of abatement against house of ill fame--Proceeds of sale of property.
For removing and selling the movable property pursuant to § 21-10-17, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the premises and keeping them closed, a reasonable sum shall be allowed by the court. The proceeds of the sale of the personal property, as provided in § 21-10-17, shall be applied in payment of the costs of the action and abatement, and the balance, if any, shall be paid to the defendant.
Source: SL 1913, ch 123, §§ 5, 6; RC 1919, §§ 2082, 2083; SDC 1939 & Supp 1960, § 37.4805.
21-10-19. Release of property to owner on payment of costs and filing of bond--Conditions of bond--Effect of release.
If the owner appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property, to be ascertained by the court or, in vacation by the judge, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court or, in vacation the judge, may, if satisfied of his good faith, order the premises closed under the order of abatement to be delivered to said owner, and said order of abatement canceled so far as the same may relate to said property; and if said bond be given and costs therein paid before judgment and order of abatement, the action shall be thereby abated as to said building only. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject by law.
Source: SL 1913, ch 123, § 7; RC 1919, § 2084; SDC 1939 & Supp 1960, § 37.4806.
21-10-20. Punishment of violations of injunction--Arrest and trial--Penalty.
In case of the violation of any injunction granted under the provisions of §§ 21-10-10 to 21-10-19, inclusive, the court, or in vacation a judge thereof, may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of courts, an information under oath, setting out the alleged facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses. A party found guilty of contempt under the provisions of this section shall be guilty of a Class 2 misdemeanor.
Source: SL 1913, ch 123, § 4; RC 1919, § 2081; SDC 1939 & Supp 1960, § 37.4804; revised pursuant to SL 1976, ch 158, § 43-6.
21-10-25. Agricultural operation defined.
As used in this chapter, the term, agricultural operation, includes any facility or appurtenance used in the production or commercial processing of crops, timber, livestock, swine, poultry, livestock products, swine products, or poultry products, or in any agrotourism activity as defined in § 20-9-12.
Source: SL 1991, ch 183, § 3; SDCL § 21-10-25.3; SL 2023, ch 65, §§ 3, 8.
21-10-25.1. Costs assessed against plaintiff in certain agricultural operation nuisance actions.
If an action pursuant to § 21-10-1 is brought against an agricultural operation existing continuously, prior to the action, and which is located within one mile of the boundaries of the land use or occupancy of the plaintiff, and if the court finds there was no reasonable ground or cause for the action, the costs may be assessed to the plaintiff.
Source: SL 1987, ch 161; SDCL § 21-10-25; SL 2023, ch 65, §§ 1, 8.
21-10-25.2. State policy to protect agricultural operations from nuisance suits.
It is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The Legislature finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of §§ 21-10-25 and 21-10-25.2 to 21-10-25.6, inclusive, to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.
Source: SL 1991, ch 183, § 1; SL 1994, ch 162; SDCL § 21-10-25.1; SL 2023, ch 65, § 8.
21-10-25.3. Agricultural operations protected.
No agricultural operation or any of its appurtenances may be deemed to be a nuisance, private or public, by any changed conditions in the locality of the operation or its appurtenances, after the operation has been in existence for more than one year, if the operation was not a nuisance at the time the operation began.
Any agricultural operation protected pursuant to this section may reasonably expand its operation, without losing its protected status, if all county, municipal, state, and federal environmental codes, laws, and regulations are met by the agricultural operation.
The protected status of an agricultural operation, once acquired, is assignable, alienable, and inheritable. The protected status of an agricultural operation, once acquired, may not be waived by the temporary cessation of farming, by diminishing the size of the operation, or by a change in the type of feeding operation or crop produced.
This section does not apply if a nuisance results from the negligent or improper operation of an agricultural operation or its appurtenances.
Source: SL 1991, ch 183, § 2; SL 1994, ch 162; SDCL § 21-10-25.2; SL 2023, ch 65, §§ 2, 8.
21-10-25.4. Damages due to water pollution or land overflow not affected by protected status.
The provisions of §§ 21-10-25.2 and 21-10-25.3 do not affect or defeat the right of any person, firm, or corporation to recover damages for any injuries sustained by it as a result of the pollution or other change in the quantity or quality of water used by that person, firm, or corporation for private or commercial purposes, or as a result of any overflow of land owned by or in the possession of any such person, firm, or corporation.
Source: SL 1991, ch 183, § 4; SL 2023, ch 65, § 8.
21-10-25.5. Agricultural operation within municipality not protected.
The provisions of §§ 21-10-25.2 and 21-10-25.3 do not apply to any nuisance resulting from an agricultural operation located within the limits of any incorporated municipality on January 1, 1991.
Source: SL 1991, ch 183, § 5; SL 2023, ch 65, § 8.
21-10-25.6. Frivolous action against agricultural operation--Costs and expenses recoverable.
In any nuisance action brought in which an agricultural operation is alleged to be a nuisance, and which is found to be frivolous by the court, the defendant shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred in his behalf in connection with the defense of such action, together with a reasonable amount for attorney's fees.
Source: SL 1991, ch 183, § 6.
21-10-25.7. Agricultural operation nuisance--Compensatory damages.
The compensatory damages that may be awarded to a plaintiff for a private nuisance action, in which the alleged nuisance resulted from an agricultural operation are as follows:
(1) If the nuisance is a permanent nuisance, compensatory damages are measured by the reduction in the fair market value of the plaintiff's property caused by the nuisance, but not exceeding the fair market value of the property; and
(2) If the nuisance is a temporary nuisance, compensatory damages are limited to the reduction in the fair rental value of the plaintiff's property caused by the nuisance.
Source: SL 2023, ch 65, § 4.
21-10-25.8. Agricultural operation nuisance--Punitive damages.
Any punitive damages claim in a private nuisance action brought against an agricultural operation is determined pursuant to § 21-3-2. Additionally, a plaintiff may not recover punitive damages in a nuisance action against an agricultural operation unless:
(1) The alleged nuisance is based on substantially the same conduct that was subject to a civil enforcement judgment or criminal conviction taken by any county, municipal, state, or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance; and
(2) The conviction or judgment occurred within three years of the first action forming the basis of the nuisance action.
Source: SL 2023, ch 65, § 5.
21-10-25.9. Agricultural operation nuisance--Applicability of limitations.
Sections 21-10-25.7 and 21-10-25.8 do not:
(1) Apply to any cause of action brought against an agricultural operation for negligence, trespass, personal injury, strict liability, or other cause of action for tort liability, other than nuisance; and
(2) Prohibit or limit any request for injunctive relief that is otherwise available.
Source: SL 2023, ch 65, § 6.
21-10-25.10. Agricultural operation nuisance--Standing--Burden of proof--Violation required.
A nuisance action may not be filed against an agricultural operation unless the plaintiff is an owner or lessee of the real property affected by the conditions alleged to be a nuisance, and the real property is located within one mile of the source of the activity or structure alleged to be a nuisance.
An agricultural operation may not be held liable for nuisance unless the plaintiff proves by clear and convincing evidence that the claim arises out of conduct that did not comply with any county, municipal, state, or federal law or regulation.
Source: SL 2023, ch 65, § 7.
21-10-26. Logging slash defined.
For the purposes of this section and § 21-10-27, the term "logging slash" is logging debris consisting of treetops, limbs, cull logs, and other separate vegetation remaining after harvest which has no commercial value. Logging slash shall be treated by lopping and scattering the vegetation, by removal from the site or by piling and burning. Standards for lopping and scattering, abandonment, removal, or piling and burning, and procedures for the enforcement of those standards, shall be established by rules promulgated by the Division of Forestry pursuant to chapter 1-26.
Source: SL 1989, ch 187, § 1; SL 1990, ch 30, § 21.
21-10-27. Abandonment of logging slash as public nuisance--Penalty.
The abandonment of untreated logging slash in a timber harvesting operation consisting of ten acres or more is a public nuisance. Abandonment of untreated logging slash in a timber harvesting operation of ten acres or more is a Class 1 misdemeanor.
Source: SL 1989, ch 187, § 2.
21-10-28. Use or operation of sport shooting range.
The use or operation of a sport shooting range may not be enjoined as a nuisance if the range is in compliance with those statutes, regulations, and ordinances that applied to the range and its operation at the time when the initial operation of the range commenced. The use or operation of a sport shooting range may not be enjoined as a nuisance due to any subsequent change in any local regulation or ordinance pertaining to the normal operation and use of sport shooting ranges. However, if the usage or design of the range results in a significant threat to human life or private habitations, a nuisance is constituted and an injunction may prescribe appropriate relief.
Source: SL 1999, ch 113, § 1; SL 2013, ch 104, § 1, eff. Mar. 21, 2013.
21-10-28.1. Significant threat to human life or private habitations.
As used in § 21-10-28, a significant threat to human life or private habitations exists, if shots or ricochets from a sport shooting range not infrequently strike or pass over private property which is frequented by persons or where a private habitation exists. A significant threat to human life or private habitations continues to exist unless or until shooting protocols are altered and enforced or the shooting range is redesigned so that shots or ricochets no longer strike or pass over private property as described in this section.
Source: SL 2013, ch 104, § 2, eff. Mar. 21, 2013.
21-10-29. Injunction not available to certain adversely affected property owners.
The use or operation of a sport shooting range may not be enjoined as a nuisance by a person who acquires title to real property adversely affected by the normal operation and use of a sport shooting range which commenced operation prior to the time the person acquired title.
Source: SL 1999, ch 113, § 2.
21-10-30. Recovery based on negligence or willful or wanton misconduct not precluded.
The provisions of §§ 21-10-28 to 21-10-34, inclusive, do not apply to any recovery for any act or omission relating to the operation or use of any sport shooting range based on negligence or willful or wanton misconduct.
Source: SL 1999, ch 113, § 3.
21-10-31. Provisions inapplicable where substantial change in primary use has occurred.
The provisions of §§ 21-10-28 to 21-10-34, inclusive, do not apply if there has been a substantial change in the primary use of a sport shooting range.
Source: SL 1999, ch 113, § 4.
21-10-32. Regulation of sport shooting ranges not prohibited.
Sections 21-10-28 to 21-10-34, inclusive, do not prohibit a local government from regulating the location and construction of sport shooting ranges after July 1, 1999.
Source: SL 1999, ch 113, § 5.
21-10-33. Sport shooting range defined.
For the purposes of §§ 21-10-28 to 21-10-34, inclusive, a sport shooting range is an area designed and operated for the use of rifles, shotguns, or pistols as a means of silhouette, skeet, trap, black powder, or other sport shooting. A sport shooting range includes any shooting range located on public or private land or operated by a private entity or by a public entity, and includes a law enforcement shooting range.
Source: SL 1999, ch 113, § 6; SL 2013, ch 104, § 3, eff. Mar. 21, 2013.
