31-21-1      Affidavit that ditch should be opened--Contents of affidavit--Notice of meeting of board of county commissioners--Examination of premises.
31-21-2      Form of notice.
31-21-3      Filing of notice and affidavit--Service on landowner--Nonresident landowners.
31-21-4      Return of service--Nonresident landowners--Publication of notice--Posting of notice--Time of publication or posting.
31-21-5      Examination of land--Hearing reasons for and against ditch--Decision--Assessment of damages in favor of landowner.
31-21-6      Benefits to landowner as factor in fixing damages--Fixing damages by agreement--Writing and filing agreement--Agreement as conclusive.
31-21-7      Laying out and opening ditch--Statement respecting decisions and damages--Filing of statement--Record kept by county auditor.
31-21-8      Payment to landowner before opening of ditch.
31-21-9      Appeal from decision to open ditch--Procedure applicable.
31-21-10      Failure to appeal--Time decision becomes final--Opening of ditch--Landowner's instructions as to line of ditch.
31-21-11      Entry upon land for maintenance of ditch.
31-21-12      Civil liability for obstruction of ditch.
31-21-13      Obstruction of ditch as misdemeanor.

31-21-1. Affidavit that ditch should be opened--Contents of affidavit--Notice of meeting of board of county commissioners--Examination of premises.

Whenever any officer or person having charge of any road shall file with the chairman of the township board of supervisors or board of county commissioners having jurisdiction of such road, his affidavit stating:

(1)    That such road runs into or through any swamp, bog, or meadow, or other lowland;

(2)    That it is necessary or expedient that a ditch should be opened through land belonging to any person;

(3)    The probable length of such ditch and the width and depth of the same as near as possible, the point at which it is to commence, its general course, and the point near which it is to terminate;

(4)    The names of persons owning the land, if known;

(5)    A description of the land over which such ditch must pass; and

(6)    That the road at that point cannot be made passable without extraordinary expense unless such ditch is laid out and opened;

it shall be the duty of the chairman of such board immediately to make out a notice and fix therein a time not less than six nor more than sixty days from the date thereof when the board of supervisors or board of county commissioners will meet at the place described in such affidavit and personally examine the premises.

Source: SL 1883, ch 112, § 87; CL 1887, § 1335; RPolC 1903, § 1740; RC 1919, § 8598; SDC 1939, § 28.1201.

31-21-2. Form of notice.

The notice required by § 31-21-1 may be in substantially the following form:

State of South Dakota

County of __________ ss:

To Mr. __________:

Whereas it appears from the affidavit of ____ that the road from ____ to ____ passes through a swamp, bog, pond, or lowland, and that in the opinion of such affiant a ditch should be opened through land belonging to ____ for the purpose of draining such swamp;

Now therefore you are hereby notified that the board of township supervisors (or the board of county commissioners) will on the ____ day of ____, 20__, examine the premises over which such ditch is to pass, will hear any objections which may be made in the matter, and will consider the amount of damages which in its opinion will be just compensation to the owners of land in consequence of the opening of such ditch.

__________ Chairman of board of __________

Source: SL 1883, ch 112, § 87; CL 1887, § 1335; RPolC 1903, § 1740; RC 1919, § 8598; SDC 1939, § 28.1201.

31-21-3. Filing of notice and affidavit--Service on landowner--Nonresident landowners.

The chairman of the township board of supervisors or board of county commissioners shall cause the notice required by § 31-21-1, together with the affidavit, to be filed in the office of the township clerk or county auditor, and the clerk or auditor shall make true copies of such notice and deliver them to the person making the affidavit whose duty it shall be to serve the same personally upon each of the owners of the land, if residents of the county, or upon the occupants of the land, if the owners are nonresidents of the county, through which it is proposed to open such ditch.

Source: SL 1883, ch 112, § 87; CL 1887, § 1335; RPolC 1903, § 1740; RC 1919, § 8598; SDC 1939, § 28.1201.

31-21-4. Return of service--Nonresident landowners--Publication of notice--Posting of notice--Time of publication or posting.

The person serving notice pursuant to § 31-21-3 shall make return thereon to the township clerk or county auditor stating the facts, and if it shall appear from such return that the owner of any such land does not reside in the county and that no occupant resides thereon, such clerk or auditor shall order the publication of the notice once each week for at least two successive weeks in a newspaper printed and published in the county, or if there be no paper printed and published in the county he shall post or cause the notice to be posted in three of the most public places in the county for three weeks prior to the meeting of the township supervisors or county commissioners, and such publication shall be considered as sufficient notice to all parties.

Source: SL 1883, ch 112, § 88; CL 1887, § 1336; RPolC 1903, § 1741; RC 1919, § 8599; SDC 1939, § 28.1202; SL 1972, ch 236, § 2.

31-21-5. Examination of land--Hearing reasons for and against ditch--Decision--Assessment of damages in favor of landowner.

At the time specified in the notice required by § 31-21-1 the township supervisors or county commissioners shall proceed to examine the road and premises over which such ditch must pass and hear any reasons for or against laying out the same, and shall decide upon the application as they deem proper, and shall assess the amount of damages which in their judgment will be an equitable compensation to the owner of any land for the opening of such ditch through his land.

Source: SL 1883, ch 112, § 89; CL 1887, § 1337; RPolC 1903, § 1742; RC 1919, § 8600; SDC 1939, § 28.1203.

31-21-6. Benefits to landowner as factor in fixing damages--Fixing damages by agreement--Writing and filing agreement--Agreement as conclusive.

In all cases under this chapter the township board of supervisors or board of county commissioners shall estimate the advantage and benefits the laying out and opening of such ditch will confer upon the owner of any land through which such ditch may run, as well as the disadvantages. The damages sustained by reason of laying out and opening such ditch may be ascertained by the agreement of the owner and the township supervisors or county commissioners, in which case every agreement and release shall be in writing and filed in the office of the township clerk or county auditor and shall forever preclude such owner from all further claims for damages.

Source: SL 1883, ch 112, § 89; CL 1887, § 1337; RPolC 1903, § 1742; RC 1919, § 8600; SDC 1939, § 28.1203.

31-21-7. Laying out and opening ditch--Statement respecting decisions and damages--Filing of statement--Record kept by county auditor.

If after taking all the circumstances into consideration the township supervisors or county commissioners shall be satisfied that the opening of a ditch under this chapter is necessary or advantageous to the public interest, they shall cause the same to be laid out and opened and shall give such directions in the matter as shall be necessary for the effectual draining of such swamp, pond, bog, or lowland, and shall file a statement in writing of all their doings including the amount of damages allowed, in the office of the township clerk or county auditor who shall copy the same into a book to be kept by him especially for that purpose.

Source: SL 1883, ch 112, § 89; CL 1887, § 1337; RPolC 1903, § 1742; RC 1919, § 8600; SDC 1939, § 28.1203.

31-21-8. Payment to landowner before opening of ditch.

When the amount of damages or compensation to be paid to any one or more of the owners of land taken for any ditch shall have been finally determined by proceedings under the provisions of this chapter the board of township supervisors or county commissioners, as the case may be, shall pay the same before the opening of such ditch.

Source: SL 1883, ch 112, § 93; CL 1887, § 1341; RPolC 1903, § 1746; RC 1919, § 8604; SDC 1939, § 28.1206.

31-21-9. Appeal from decision to open ditch--Procedure applicable.

Any person through whose land any ditch described in § 31-21-7 shall pass may appeal from the decision of the supervisors or county commissioners to the circuit court for the county in which the premises are situated within the time and in the manner provided for other appeals from decisions of the board of county commissioners, and the proceedings upon such appeal shall be the same as upon other appeals from such board.

Source: SL 1883, ch 112, § 90; CL 1887, § 1338; RPolC 1903, § 1743; RC 1919, § 8601; SDC 1939, § 28.1204.

31-21-10. Failure to appeal--Time decision becomes final--Opening of ditch--Landowner's instructions as to line of ditch.

If the order and proceeding under this chapter be not appealed from within ten days from the filing thereof as provided in § 31-21-7, such judgment, order, and finding shall be final, and the officer or person in charge of such road may proceed to open the ditch in accordance with the directions and under the instructions of the board of township supervisors or county commissioners, as the case may be. Any such ditch shall be laid out upon the line that the owner of the land over which it is to pass may desire whenever it can be done without extra cost.

Source: SL 1883, ch 112, § 89; CL 1887, § 1337; RPolC 1903, § 1742; RC 1919, § 8600; SDC 1939, § 28.1203.

31-21-11. Entry upon land for maintenance of ditch.

At any time after a ditch shall have been opened under this chapter it shall be lawful for the officer or person having the highway in charge, from time to time as it may be necessary, to enter upon the lands through which such ditch has been opened for the purpose of keeping it open and in good order and condition.

Source: SL 1883, ch 112, § 91; CL 1887, § 1339; RPolC 1903, § 1744; RC 1919, § 8602; SDC 1939, § 28.1205.

31-21-12. Civil liability for obstruction of ditch.

Any person who shall dam up, obstruct, or in any way injure any ditch opened pursuant to this chapter shall be liable to the township or county in double the damages which shall be assessed by the jury or court trying the case for such injury.

Source: SL 1883, ch 112, § 92; CL 1887, § 1340; RPolC 1903, § 1745; RC 1919, § 8603; SDC 1939, § 28.1207.

31-21-13. Obstruction of ditch as misdemeanor.

Any person who shall dam up, obstruct, or in any way injure any ditch opened under the provisions of this chapter shall be guilty of a Class 2 misdemeanor.

Source: SL 1883, ch 112, § 92; CL 1887, § 1340; RPolC 1903, § 1745; RC 1919, § 8603; SDC 1939, § 28.9912.