CHAPTER 31-26
UTILITY LINES ALONG AND ACROSS HIGHWAYS
31-26-1 Application to board of county commissioners to erect poles and wires or to bury cable for electricity and telephone--Period covered by application--Regulation by Legislature.
31-26-2 Exclusive grant prohibited.
31-26-3 Location of poles, fixtures or underground cable--Appeal to commission and circuit court--Procedure.
31-26-4 Change of line upon change of highway--Notice.
31-26-5 Lines or cable maintained in accordance with National Electrical Safety Code--Compliance establishes due care in negligence claim.
31-26-6 Negligent construction of lines--Inductive interference--Expense of correction--Burden of proof--Liability in absence of negligence--Lines properly constructed.
31-26-7 Telephone lines--Compliance with other statutes.
31-26-8 "Person" including other entities.
31-26-9 Noncompliance with requirements as petty offense.
31-26-10 Application to county auditor--Telephone lines excepted.
31-26-11 Contents of application--Central plant location--Route--Telephone lines.
31-26-12 Rural electrification lines throughout county--Definition of rural electrification.
31-26-13 Application presented to board of county commissioners--Notice of hearing.
31-26-14 Action by board--Period of delay.
31-26-15 Application granted--Adjustment with other utilities--Apportionment of costs--Telephone companies.
31-26-16 Conformity to public utilities commission order.
31-26-17 Appeal by aggrieved parties--Trial de novo--Appeal during vacation.
31-26-18 Change of route--Change by county board--Appeal--Procedure.
31-26-19 Minimum height of utility lines--Liability for damage to lines below minimum height.
31-26-20 Cost of adjusting lines to minimum height--Acquisition of new highway right-of-way--Items excluded from cost.
31-26-21 Liability for damage for negligent construction or maintenance of line.
31-26-22 Electrical lines, pipelines, communication lines and other utilities--Permits--Rules--Compliance with National Electrical Safety Code establishes due care in negligence claim.
31-26-23 Relocation or removal of electrical lines, communication lines, and pipelines--Procedural requirements.
31-26-23.1 Agreements with owners of utility lines and facilities for future relocation--Limitation.
31-26-24 Rural water pipelines covered by chapter.
31-26-25 Construction of rural water or livestock pipeline on public highway--Application--Countywide authorization--Ordinance--Nature of interest.
31-26-26 Relocation of pipeline--When required.
31-26-26.1 Relocation of a livestock pipeline--Request--Approval.
31-26-26.2 Liability on construction or maintenance of pipeline--County recovery--Venue.
31-26-27 Municipal utility lines--Provisions applicable.
31-26-1. Application to board of county commissioners to erect poles and wires or to bury cable for electricity and telephone--Period covered by application--Regulation by Legislature.
The board of county commissioners, upon written application designating the particular highway the use of which is desired, may grant to any person engaged in the manufacture or sale of electric light and power, or any municipality authorized by law to purchase electric current, or any person authorized by law to purchase such current from such municipality, or any person engaged in, or about to engage in, the furnishing of telephone service, the right to erect and maintain poles and wires or to bury underground cable for the purpose of conducting electricity for lighting, heating, and power purposes, together with stay wires and braces, and for the purpose of furnishing telephone service, in and along any public highway in its county for a period not to exceed twenty years, subject to the conditions set forth in this chapter and such further reasonable regulations as the Legislature may hereafter prescribe.
Source: SDC 1939, § 28.1001; SL 1939, ch 108; SL 1953, ch 149, § 1; SL 1953, ch 150; SL 2003, ch 159, § 1.
31-26-2. Exclusive grant prohibited.
The grantee under § 31-26-1 shall not in any case have the exclusive right to use such highway for the conducting of electricity or the furnishing of telephone service.
Source: SL 1913, ch 369, § 1; RC 1919, § 8591; SDC 1939, § 28.1001 (1); SL 1939, ch 108; SL 1953, ch 149, § 1; SL 1953, ch 150.
31-26-3. Location of poles, fixtures or underground cable--Appeal to commission and circuit court--Procedure.
The poles and fixtures, guy wires, braces, and stays or underground cable buried or erected under § 31-26-1 shall be located under the joint field supervision and direction of the grantee and the governing body charged with the maintenance of the state trunk highway on which they are placed and constructed consistent with the permit requirements adopted under § 31-26-22. They shall be so constructed as not to inconvenience the public in the use of any road or the navigation of any stream. An appeal from the decision of the Department of Transportation may be taken to the Transportation Commission. An appeal from the decision of the commission may be taken to the circuit court in the manner provided by law and the rules of practice and procedure adopted by the Supreme Court.
Source: SDC 1939, § 28.1001 (2); SL 1939, ch 108; SL 1953, ch 149, § 1; SL 1953, ch 150; SL 1984, ch 207, § 64; SL 1987, ch 210, § 12; SL 2003, ch 159, § 2.
31-26-4. Change of line upon change of highway--Notice.
When any highway along which a line has been constructed pursuant to § 31-26-1 shall be changed, the grantee shall, upon ninety days' notice in writing, remove such line to the highway as changed.
Source: SL 1913, ch 369, § 1; RC 1919, § 8591; SDC 1939, § 28.1001 (3); SL 1939, ch 108; SL 1953, ch 149, § 1; SL 1953, ch 150.
31-26-5. Lines or cable maintained in accordance with National Electrical Safety Code--Compliance establishes due care in negligence claim.
The grantee under § 31-26-1 shall construct and maintain the grantee's poles, wires, or underground cable and line in accordance with the applicable National Electrical Safety Code adopted by the Bureau of Standards of the United States Department of Commerce. Proof of compliance with the requirements of the applicable National Electrical Safety Code standard establishes due care in the defense of a negligence claim alleging a violation of that standard.
Source: SDC 1939, § 28.1001 (4) as enacted by SL 1939, ch 108; SL 1953, ch 149, § 1; SL 1953, ch 150; SL 2003, ch 159, § 3; SL 2007, ch 261, § 2.
31-26-6. Negligent construction of lines--Inductive interference--Expense of correction--Burden of proof--Liability in absence of negligence--Lines properly constructed.
Whenever the erection and maintenance of electric lines shall, by reason of negligence in the construction or operation of such lines, cause inductive interference in grounded lines, the owner of the electric lines shall furnish all necessary wire and attachments for making telephone lines metallic, where necessary, and such additional poles above the number in place as is necessary to carry the additional telephone equipment in accordance with standard practices, and shall pay the cost of any necessary moving of telephone lines. The burden of proof of negligence in the construction or operation of such electric lines shall be upon the telephone company complaining of such interference. In the absence of negligent construction or operation the owner of the electric lines shall not be liable for any inductive interference caused in grounded lines. But the owner of electric lines shall be liable for all inductive interference in metallic lines or cables that are properly constructed.
Source: SDC 1939, § 28.1001 (8); SDC 1939, § 28.1001 (5) as enacted by SL 1939, ch 108; SL 1953, ch 149, § 1.
31-26-7. Telephone lines--Compliance with other statutes.
Any person engaged in or about to engage in the furnishing of telephone service shall comply with the provisions of § 49-31-20. Nothing in §§ 31-26-1 to 31-26-6, inclusive, may be construed to limit the rights granted by § 49-32-1 to telecommunications companies.
Source: SDC 1939, § 28.1001 (6) as added by SL 1953, ch 149, § 1; SL 2021, ch 128, § 4.
31-26-8. "Person" including other entities.
For the purpose of this chapter, the term, person, includes any natural person, firm, association, limited liability company, corporation, federal agency, state or political subdivision or agency thereof, or any body politic.
Source: SDC 1939, § 28.1001 as added by SL 1953, ch 149, § 1; SL 1994, ch 351, § 51.
31-26-9. Noncompliance with requirements as petty offense.
Any person who, having received a grant as to placing of wires and poles or underground cable on a highway under this chapter, fails to comply with the provisions of § 31-26-4, 31-26-5, or 31-26-7 commits a petty offense.
Source: SDC 1939, § 28.9911; SL 1978, ch 158, § 20; SL 2003, ch 159, § 4.
31-26-10. Application to county auditor--Telephone lines excepted.
Any applicant desiring to construct a transmission line as provided in § 31-26-1 shall file with the county auditor an application and any applicant desiring to construct a telephone line as provided in § 31-26-1 may, but shall not be required to file an application with the county auditor.
Source: SL 1913, ch 369, § 2; RC 1919, § 8592; SL 1919, ch 221; SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2.
31-26-11. Contents of application--Central plant location--Route--Telephone lines.
In the case of either a transmission line application or a telephone line application under § 31-26-1, the applicant shall state the place where the applicant's central plant is located, the point or points to which the applicant desires to transmit electricity or furnish telephone service, and the route over which the applicant desires to construct such lines or bury underground cable. The application shall state what electric, telegraph, and telephone lines are, at the time of making the application, occupying a part of the highway or highways which the proposed lines are to occupy. Any applicant who hereafter desires to construct a telephone line or bury underground cable shall state whether the applicant has obtained a certificate of convenience and necessity from the Public Utilities Commission.
Source: SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2; SL 2003, ch 159, § 5.
31-26-12. Rural electrification lines throughout county--Definition of rural electrification.
If the applicant in the case of a transmission application, wishes to construct lines or bury underground cable for rural electrification the applicant may state that the applicant wishes to construct lines for rural electrification throughout the county, in which event the applicant need not show the point or points to which the applicant desires to transmit electricity nor the route, and if the application is granted to such applicant for rural electrification county-wide authorization may be given to such applicant but subject to the other provisions of this chapter. For the purposes of this chapter, a line or underground cable shall be deemed "for rural electrification" if it carries at least one circuit of such voltage as is practical for and customarily used in distributing electricity to farms.
Source: SDC 1939, § 28.1002 as added by SL 1951, ch 141; SL 1953, ch 149, § 2; SL 2003, ch 159, § 6.
31-26-13. Application presented to board of county commissioners--Notice of hearing.
The county auditor shall present an application under § 31-26-1 to the board of county commissioners within thirty days after the filing of the application, at a regular or special meeting called for that purpose. The auditor shall give ten days' notice by mail of the application and the time and place when and where the application will be heard to any public entity having jurisdiction and supervision over the involved highway, and to all persons, firms, or corporations owning or operating electric, telephone, or telegraph lines or underground cable on any part of the highway which the proposed lines may occupy.
Source: SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2; SL 2003, ch 159, § 7; SL 2017, ch 125, § 1.
31-26-14. Action by board--Period of delay.
It shall be the duty of the board of county commissioners to take immediate action upon an application under § 31-26-13 at the time and place noticed for hearing thereon and final action thereon shall not be delayed for a longer period than ten days from the date of meeting set for the hearing.
Source: SL 1913, ch 369, § 2; RC 1919, § 8592; SL 1919, ch 221; SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2.
31-26-15. Application granted--Adjustment with other utilities--Apportionment of costs--Telephone companies.
If the application for construction or reconstruction of an electric line is granted by the board of county commissioners, it shall be competent for such board to adjust any differences that may arise between any such applicant and any owner or owners of any electric, telephone, or telegraph line or underground cable affected by such decision, in the matter of construction or reconstruction, and such board may adjust and apportion the costs which may be occasioned in order to carry out the plans, methods, or means approved by the board as deemed necessary to avoid or minimize interference or hazard. However, if there is a dispute between two telephone companies such dispute shall be adjusted by the Public Utilities Commission.
Source: SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2; SL 2003, ch 159, § 8.
31-26-16. Conformity to public utilities commission order.
Any action of the county commissioners in the case of an application of a telephone company under § 31-26-1 shall enable the applicant to conform to and shall not be in conflict with any order of the Public Utilities Commission.
Source: SDC 1939, § 28.1002 as added by SL 1953, ch 149, § 2.
31-26-17. Appeal by aggrieved parties--Trial de novo--Appeal during vacation.
Any interested party feeling aggrieved by the decision of the board of county commissioners on the matter of an application under § 31-26-1, shall have the right of appeal to the circuit court as from other decisions from such board, and on such appeal the circuit court shall hear and determine the matter de novo. The hearing of such appeal may be brought on either in vacation or term time upon ten days' notice to the applicant or appellant.
Source: SL 1913, ch 369, § 2; RC 1919, § 8592; SL 1919, ch 221; SDC 1939, § 28.1002; SL 1951, ch 141; SL 1953, ch 149, § 2.
31-26-18. Change of route--Change by county board--Appeal--Procedure.
If the board of county commissioners has granted the right to any person to construct lines or bury underground cable for the transmission of electricity as provided in §§ 31-26-1 to 31-26-17, inclusive, and if before constructing such line the applicant desires to change the route designated in the grant, the board may change the route upon application of the person constructing the same subject to the same provisions for placing poles, fixtures, guy wires, braces, and stays or underground cable, as provided by law on original construction.
Source: SDC 1939, § 28.1003; SL 1953, ch 149, § 3; SL 1953, ch 151; SL 2003, ch 159, § 9.
31-26-19. Minimum height of utility lines--Liability for damage to lines below minimum height.
It shall be a Class 2 misdemeanor for any person, firm, association, or corporation owning or operating any telephone, telegraph, or electric line, or any part of such line in this state, to extend any telephone, telegraph, or electric wire, any part of which shall be less than eighteen feet from the ground, over or across any public highway. No such person, firm, association, or corporation shall be entitled to collect damages from any person who shall cut, break, remove, or otherwise destroy any such telephone, telegraph, or electric wire over or across a public highway if any part of the same is at any time less than eighteen feet from the ground.
Source: SL 1921, ch 251; SDC 1939, § 28.1004; SL 1965, ch 134.
31-26-20. Cost of adjusting lines to minimum height--Acquisition of new highway right-of-way--Items excluded from cost.
Costs of adjusting said lines to conform to the minimum height as set out in § 31-26-19 may only be assumed by the governmental body having jurisdiction of said public highway where said adjustment results from the acquisition of new highway right-of-way in which the utility has an interest.
Said costs shall not include salvage, depreciation, or betterment values to the utility.
Source: SL 1921, ch 251; SDC 1939, § 28.1004; SL 1965, ch 134.
31-26-21. Liability for damage for negligent construction or maintenance of line.
Nothing contained in § 31-26-19 or 31-26-20 shall be construed to exempt anyone owning or operating any telephone, telegraph, or electric line or underground cable in this state from liability for any damage or injury which anyone may sustain by reason of the faulty or negligent construction or maintenance of such telephone, telegraph, or electric line or underground cable.
Source: SDC 1939, § 28.1004; SL 1965, ch 134; SL 2003, ch 159, § 10.
31-26-22. Electrical lines, pipelines, communication lines and other utilities--Permits--Rules--Compliance with National Electrical Safety Code establishes due care in negligence claim.
The Transportation Commission may promulgate rules and the Department of Transportation may issue permits, to allow electrical lines, pipelines, communication lines and other utilities, including rural water service pipelines, whether above or below ground, to operate the facilities over, under, or along public grounds, streets, alleys and highways under its jurisdiction in this state. Any rule promulgated pursuant to this section shall set forth application and issuance of permit criteria and installation standards necessary to preserve a safe traffic environment, the appearance of the highway, and the efficiency and economy of highway maintenance and shall be promulgated pursuant to chapter 1-26. Proof of compliance with the requirements of the applicable National Electrical Safety Code standard establishes due care in the defense of a negligence claim alleging a violation of that standard.
Source: SL 1970, ch 166, § 1; SL 1979, ch 199, § 3; SL 1984, ch 207, § 65; SL 1987, ch 210, § 13; SL 2007, ch 261, § 3.
31-26-23. Relocation or removal of electrical lines, communication lines, and pipelines--Procedural requirements.
If any highway or public entity infrastructure is constructed or changed within the public right-of-way, the public entity or its representative shall notify any affected known utility that has electrical lines, communications lines, or pipelines and allow the affected utility to participate in a coordination meeting during the planning or design phase of the project, except as provided in this section. The meeting shall allow the public entity and affected known utility to discuss options to minimize construction delays, limit the impact of the construction on utility facilities, and to minimize or eliminate costs associated with any utility removal or relocation. No such option may cause the public entity to incur additional costs unless a written agreement is reached to have the affected utility pay for the additional costs incurred by the public entity.
If the public entity determines that coordination meetings will not be held due to the project scope and size, the public entity shall notify any affected known utility and allow the affected utility thirty days to submit written comments on the project.
After the coordination meetings or after the written comment period, the permit holder shall, upon ninety days notice in writing, remove or relocate the facilities at its own cost unless other arrangements have been mutually agreed upon in writing. If the public entity, in coordination with the utility, determines that winter weather conditions make removal or relocation impractical, the accrual of time within the ninety-day notification period shall be suspended until conditions make removal or relocation practical. If a utility's facility is discovered during construction that was not identified by the utility during the planning or design phase or during the written comment period if the public entity determines that a coordination meeting will not be held, the ninety-day notice is not required and the utility shall coordinate with the public entity to remove or relocate the facility as soon as practically possible for the project.
Source: SL 1970, ch 166, § 2; SL 2009, ch 148, § 1.
31-26-23.1. Agreements with owners of utility lines and facilities for future relocation--Limitation.
Notwithstanding the provisions of § 31-26-23, the Department of Transportation may enter into agreements with the owners of utility lines and facilities providing for the future relocation, at the department's expense, of utility lines and facilities located within any highway right-of-way. However, the department may enter into such agreements only if existing utility lines or facilities on private property will be located within the right-of-way as the result of a highway construction project.
Source: SL 2004, ch 199, § 1.
31-26-24. Rural water pipelines covered by chapter.
The terms and provisions of this chapter shall also apply to the laying and construction of rural water pipelines insofar as they may be applicable thereto.
Source: SL 1977, ch 244, § 2.
31-26-25. Construction of rural water or livestock pipeline on public highway--Application--Countywide authorization--Ordinance--Nature of interest.
Any person desiring to construct or lay a water pipeline over, across, or under public highways, except state trunk system highways, for the purpose of providing rural water service, or providing water to livestock on property that is taxed as agricultural land, must make application to the board of county commissioners as provided in this chapter. Upon application, the board of county commissioners may grant countywide authorization for the construction of rural water service lines or lines that water livestock, subject to the provisions of this chapter. The board of county commissioners may enact ordinances governing pipelines and grant authorization to the highway superintendent to approve rural water service lines without application to the board. County approval of a pipeline authorized under this section creates no ownership interest and is a temporary grant to utilize the highway.
Source: SL 1977, ch 244, § 1; SL 1979, ch 199, §§ 1, 2; SL 2023, ch 96, § 1.
31-26-26. Relocation of pipeline--When required.
When any highway along or under which a pipeline approved pursuant to § 31-26-25 has been constructed is changed, removal or relocation of the pipeline is not necessary if the owner or beneficiary of the pipeline and the board of county commissioners agree in writing that removal or relocation is not necessary. However, removal or relocation of a livestock pipeline is required if the board determines it is necessary to improve the highway or otherwise remove the pipeline for any county purpose.
Source: SL 1977, ch 244, § 3; SL 2023, ch 96, § 2.
31-26-26.1. Relocation of a livestock pipeline--Request--Approval.
An owner or operator of a livestock pipeline approved pursuant to § 31-26-25 may, at any time, submit a request for the relocation, removal, or change of a livestock pipeline to the highway superintendent. Upon approval of the highway superintendent, the owner or operator may, at their own cost and in accordance with any conditions set by the highway superintendent, relocate, remove, or change the livestock pipeline.
Source: SL 2023, ch 96, § 3.
31-26-26.2. Liability on construction or maintenance of pipeline--County recovery--Venue.
Nothing contained in § 31-26-25 or 31-26-26 may be construed to exempt from liability a person who owns, operates, or benefits from a livestock pipeline, for any damage or injury sustained by reason of the faulty or negligent construction or maintenance of a livestock pipeline. A county is entitled to recover, from any owner, operator, or beneficiary of a livestock pipeline, the amount necessary to spend in the removal or repair of the portion of highway or right of way impacted by the faulty or negligent construction or maintenance, including a reasonable amount for attorney's fees. The action may be commenced in any court in the county having jurisdiction.
Source: SL 2023, ch 96, § 4.
