CHAPTER 31-3
LOCATION, CHANGE AND VACATION OF HIGHWAYS
31-3-1 Dedication to public by continuous use, work, and repair of road--Width--Obtaining right-of-way.
31-3-2 Public highway not established by mere use.
31-3-3 Rights of settlers on public lands.
31-3-4 Location on boundary line--Half of highway taken from each side.
31-3-5 Damages assessed--Payment before use of road.
31-3-6 Petition to locate, change, or vacate a highway.
31-3-6.1 Access to public lands or public waters.
31-3-7 Public hearing--Notice--Affirmative resolution of board--Order.
31-3-8 Resolution and order of board--Description of land--Map maintained by county auditor--Recording.
31-3-9 Resolution and order--Entry in minutes--Publication.
31-3-10 Discontinuance and vacation--Reversion of title to land--Removal of improvements.
31-3-11 Validation of vacation of highway not within municipality.
31-3-12 Limitation of jurisdiction of township supervisors.
31-3-13 Highway on township line--Joint resolution.
31-3-14 Appeal from township board to vote of voters.
31-3-15 31-3-15, 31-3-16. Repealed by SL 1985, ch 233, § 6
31-3-17 Reopening vacated section lines without payment of damages.
31-3-18 Width of highway.
31-3-19 County location proceedings--Highways to which applicable.
31-3-20 Municipal boundary highways--County and trunk highway systems.
31-3-21 31-3-21. Repealed by SL 1984, ch 12, § 33
31-3-22 31-3-22. Repealed by SL 1985, ch 233, § 10
31-3-23 Proceedings on short highway without usual number of petitioners--Payment of damages.
31-3-24 31-3-24 to 31-3-27. Repealed by SL 1985, ch 233, §§ 11 to 14
31-3-28 Benefits considered in assessing damages.
31-3-29 31-3-29. Repealed by SL 1985, ch 233, § 15
31-3-30 Owner opposed to petition to set forth damages in writing--Determination by county commissioners.
31-3-31 31-3-31, 31-3-32. Repealed by SL 1985, ch 233, §§ 16, 17
31-3-33 Assessment and payment of damages.
31-3-34 Appeal to circuit court--Time allowed.
31-3-35 31-3-35. Repealed by SL 1985, ch 233, § 20
31-3-36 Location by consent.
31-3-37 Expenses of survey--Payment by person seeking location of highway.
31-3-38 31-3-38. Repealed by SL 2018, ch 168, § 4.
31-3-39 Field notes--Furnishing to board of supervisors of township.
31-3-40 Field notes--Recording in township highway record.
31-3-41 Relocation of highways--Contract of political subdivision with United States--Reimbursement.
31-3-42 Change in location of highway by political subdivision contracting with the United States.
31-3-43 Notice of proposed change--Publication.
31-3-44 Highways within extraterritorial area of municipality.
31-3-45 Rights of utilities and rural water systems unaffected.
31-3-46 Procedures for highway appeals from township board of supervisors.
31-3-1. Dedication to public by continuous use, work, and repair of road--Width--Obtaining right-of-way.
Whenever any road shall have been used, worked, and kept in repair as a public highway continuously for twenty years, the same shall be deemed to have been legally located or dedicated to the public, and shall be and remain a public highway until changed or vacated in some manner provided by law.
Such highway shall be sixty-six feet wide and shall be taken equally from each side of the roadbed center line. Nothing herein contained may prevent the highway authority charged with the construction, reconstruction, or repair of any public highway from purchasing or condemning right-of-way for widening the highway to more than sixty-six feet or from purchasing or condemning more right-of-way on one side of the roadbed center line than on the other, provided they deem it necessary so to do in order to provide a better highway, to avoid destruction of trees or valuable buildings or to avoid unsuitable terrain.
Source: SDC 1939, § 28.0104; SL 1985, ch 232.
31-3-2. Public highway not established by mere use.
Notwithstanding § 31-3-1, the mere use by the public of any route of travel along or across public or private land, or the right-of-way of any railroad company for any period, shall not operate to establish a public highway and no right shall inure to the public or any person by such use thereof.
Source: SL 1893, ch 100; RPolC 1903, § 1632; RC 1919, § 8613; SDC 1939, § 28.0104.
31-3-3. Rights of settlers on public lands.
In all applications for the location, change, or vacation of any public highway, actual settlers upon any public lands in any county in this state shall have and possess all rights in this chapter granted to freeholders.
Source: SL 1867-8, ch 13, § 32; PolC 1877, ch 29, § 36; CL 1887, § 1226; RPolC 1903, § 1631; RC 1919, § 8618; SDC 1939, § 28.0112.
31-3-4. Location on boundary line--Half of highway taken from each side.
When a public highway is laid out and located upon a line dividing the land of two individuals, but not on the section line, one-half of the same must be taken, if practicable, from the land of each, provided whenever the taking of more land from one individual than the other will result in better alignment, less costly construction, or will save valuable trees or buildings from destruction, the highway may be laid out and the right-of-way taken unequally from said owners.
Source: PolC 1877, ch 29, § 44; CL 1887, § 1234; RPolC 1903, § 1639; RC 1919, § 8619; SDC 1939, § 28.0113; SL 1953, ch 134.
31-3-5. Damages assessed--Payment before use of road.
No public highway shall be opened, worked, or used until the damages assessed therefor shall be paid to the persons entitled thereto or deposited in the county treasury for their use, or they shall give their consent thereto in writing filed with the county auditor.
Source: SL 1867-8, ch 13, § 25; PolC 1877, ch 29, § 28; CL 1887, § 1216; RPolC 1903, § 1621; RC 1919, § 8620; SDC 1939, § 28.0114.
31-3-6. Petition to locate, change, or vacate a highway.
Upon receiving a petition signed by two or more voters of an organized civil township, the board of supervisors, having jurisdiction, shall provide for a public hearing, as required by § 31-3-7, and after consideration of all information, opinions, and arguments presented, may, except as provided in §§ 31-3-12 and 31-3-44, vacate, change, or locate a highway in the township, if the public interest will be better served by the action.
Upon receiving a petition signed by voters of the county, at least equal in number to one percent of those who cast ballots in the county during the last gubernatorial election, the board of county commissioners, having jurisdiction, shall provide for a public hearing, as required by § 31-3-7, and after consideration of all information, opinions, and arguments presented, may, except as provided in §§ 31-3-12 and 31-3-44, vacate, change, or locate a highway in the county, if the public interest will be better served by the action.
Upon receiving a petition signed by two thirds of the adjacent landowners or all adjacent landowners if there are fewer than three, the board of county commissioners, having jurisdiction, shall provide for a public hearing, as required by § 31-3-7, and after consideration of all information, opinions, and arguments presented, may vacate the highway, if the public interest will be better served by the action.
The petition must set forth the beginning, course, and termination of the highway proposed to be located, changed, or vacated and, if applicable, the name of each person owning the land through which the proposed highway may pass.
Source: SDC 1939, § 28.0410; SL 1984, ch 208, § 2; SL 1985, ch 233, § 1; SL 2021, ch 122, § 1.
31-3-6.1. Access to public lands or public waters.
Notwithstanding any other provisions of this chapter, no county or township may vacate a highway which provides access to public lands or public waters embracing an area of not less than forty acres.
Source: SL 1989, ch 253, § 1; SL 2012, ch 154, § 1; SL 2018, ch 170, § 1.
31-3-7. Public hearing--Notice--Affirmative resolution of board--Order.
In case of the filing of a petition described in § 31-3-6, the board shall, after giving notice of a public hearing, hold a public hearing called for the purpose of receiving public testimony about the action proposed by the petition. The board shall give notice of the public hearing by publication in the official newspaper of said township, if any, otherwise in the nearest legal newspaper of said county, once each week for at least two consecutive weeks. The notice of the public hearing shall state the purpose, date, time, and location of the hearing and a legal description of the location of the highway and the action proposed by the petition and how information, opinions, and arguments may be presented by any person unable to attend the hearing. The board shall, by resolution, determine whether the public interest will be better served by such proposed vacating, changing, or locating of the highway in question, and upon resolution in the affirmative, shall make its order that such highway be vacated, changed, or located.
Source: SDC 1939, § 28.0411; SL 1951, ch 138, § 1; SL 1985, ch 233, § 2.
31-3-8. Resolution and order of board--Description of land--Map maintained by county auditor--Recording.
The resolution and order provided for in § 31-3-7 shall describe the highway vacated, changed, or located in general language by description of the land across which the highway extends, or by landmarks or survey designate the particular highway intended. The county auditor shall prepare and maintain a current map showing the course and location of all county highways within or on the border of the county. The county auditor shall, within thirty days of the resolution and order provided for in § 31-3-7, make those changes to the map as necessary to reveal the course and location of any county highway vacated, changed, or located. A certified copy of the resolution and order shall be filed with the register of deeds.
Source: SDC 1939, § 28.0412; SL 1985, ch 233, § 3; SL 1998, ch 167, § 1; SL 2012, ch 155, § 1.
31-3-9. Resolution and order--Entry in minutes--Publication.
Such resolution and order shall be printed in the minutes of the meeting of the board and the resolution shall be published in the official newspaper of said township, if any, otherwise in the nearest legal newspaper to said highway, once each week for at least two consecutive weeks, and such highway shall be, after a lapse of thirty days, vacated, changed, or located, without further proceedings unless appeal as provided for in this chapter.
Source: SDC 1939, § 28.0411; SL 1951, ch 138, § 1; SL 1972, ch 166, § 1; SL 1985, ch 233, § 4.
31-3-10. Discontinuance and vacation--Reversion of title to land--Removal of improvements.
Upon the discontinuance and vacation of a highway pursuant to §§ 31-3-6 to 31-3-9, inclusive, the title to the land embodied therein shall revert to the original owners or their grantees or successors in interest, and any removable guardrails, culverts, or other public improvements upon such vacated highway may be removed and returned to the political subdivision by which the same were made or supplied.
Source: SL 1935, ch 125, § 2; SDC 1939, § 28.0412.
31-3-11. Validation of vacation of highway not within municipality.
Whenever the governing body of any township, or county, of this state, having jurisdiction has had, or shall have, presented to it a petition for the vacation of any public highway or street, alley, or public ground or any part thereof, not located within the corporate limits of any municipality, and, after due hearing such governing body has granted or shall grant the petition in whole or in part and there was, or shall be, recorded in the office of the register of deeds of the county wherein such area is located a certified copy of the resolution or record of the action taken by such body relative to such petition, any defect or irregularity in the proceedings in such matter shall be deemed validated, legalized, and cured at the end of two years following the date of such recording and any easement or interest of the public in or upon the area so vacated shall then be terminated and action thereon barred.
Source: SL 1951, ch 138, § 2; SDC Supp 1960, § 28.0411-1.
31-3-12. Limitation of jurisdiction of township supervisors.
The board of township supervisors may not vacate or change any portion of the state trunk highway system, the county highway system, or any highway within the corporate limits of any municipality.
Source: SL 1935, ch 125, § 3; SDC 1939, § 28.0413; SL 1978, ch 219; SL 1984, ch 208, § 3.
31-3-13. Highway on township line--Joint resolution.
In case the highway to be vacated, changed, or located is upon a township line, it shall be necessary that the board of supervisors of the adjoining civil township, or the board of county commissioners of the county, if the adjoining congressional township is unorganized, as the case may be, pass a like resolution and enter an order vacating, changing, or locating said highway.
Source: SL 1935, ch 125, § 4; SDC 1939, § 28.0414.
31-3-14. Appeal from township board to vote of voters.
Six or more voters of the township, aggrieved by the action of the board of supervisors in vacating, changing, or locating a highway may file with the township clerk a notice in writing within thirty days from the date of the first publication pursuant to § 31-3-9, that they appeal the decision on whether the highway shall be vacated, changed, or located to be submitted to a vote of the voters of the township.
Source: SL 1935, ch 125, § 5; SDC 1939, § 28.0415; SL 2014, ch 48, § 18.
31-3-17. Reopening vacated section lines without payment of damages.
Nothing in this chapter may be construed to prevent the township board, county board, or the Transportation Commission from reopening highways so vacated without payment of damages to landowners on account of reopening said highway.
Source: SDC 1939, § 28.0416; SL 1985, ch 233, § 8.
31-3-18. Width of highway.
Any public highway located under §§ 31-3-6 to 31-3-37, inclusive, shall be at least sixty-six feet in width, and may be one hundred feet in width if all residents of land adjoining the highway petition for such width. However, a highway not exceeding one-half mile in length and not located on any section line shall be at least thirty-three feet in width if, in the judgment of the board of county commissioners, such width is sufficient to accommodate properly the travel on the highway. Each order locating or changing any highway shall specify the width of the highway.
Source: SL 1883, ch 112, § 51; CL 1887, § 1311; RPolC 1903, § 1722; RC 1919, § 8544; SDC 1939, § 28.0315; SL 2018, ch 168, § 2.
31-3-19. County location proceedings--Highways to which applicable.
The provisions of §§ 31-3-23 to 31-3-37, inclusive, apply to all public highways by whatever authority located within any organized county that are not within the limits of any municipality. However, no portion of the state trunk highway system or county highway systems may be vacated, changed, or located except with the approval of and in accordance with an order made by the Department of Transportation.
Source: SDC 1939, § 28.0601; SL 1992, ch 60, § 2; SL 2021, ch 128, § 1.
31-3-20. Municipal boundary highways--County and trunk highway systems.
The provisions of §§ 31-3-23, 31-3-28, 31-3-30, 31-3-33, 31-3-34, 31-3-36, and 31-3-37 do not apply to the highways on the boundary line of any municipality. Section 31-3-23 does not apply to any highway upon the county highway system or the trunk highway system.
Source: SDC 1939, § 28.0602; SL 1951, ch 139, § 1; SL 1985, ch 233, § 9; SL 1992, ch 60, § 2.
31-3-23. Proceedings on short highway without usual number of petitioners--Payment of damages.
If a public highway proposed to be located is not more than one mile in length, the board of county commissioners shall proceed as provided in §§ 31-3-28 to 31-3-37, inclusive. However, the petition for the highway may be by but one or more petitioners and the board of county commissioners shall require the petitioner or petitioners for the highway to pay the damages assessed for the location of the highway.
Source: SL 1913, ch 235; SL 1915, ch 211, § 2; RC 1919, § 8537; SL 1919, ch 333, § 14; SDC 1939, § 28.0602; SL 1951, ch 139, § 1; SL 2021, ch 128, § 2.
31-3-28. Benefits considered in assessing damages.
The benefits to accrue to any owner, occupant, or claimant of land by reason of locating or changing any highway are to be considered by the commissioners or the viewers in the determination and award of damages for the same.
Source: PolC 1877, ch 29, § 40; CL 1887, § 1230; RPolC 1903, § 1635; RC 1919, § 8624; SDC 1939, § 28.0616.
31-3-30. Owner opposed to petition to set forth damages in writing--Determination by county commissioners.
At the meeting of the board of county commissioners at which the report of the committee appointed to examine the highway is presented, any person over whose land the highway passes and who is opposed to the petition shall set forth in writing that he or she is damaged by the location, change, or vacation of the highway and the amount of any damage. The board shall determine from the report and the evidence before the board the amount of damages sustained and whether the damages so assessed are greater than the utility of the proposed highway or change. If the board deems the highway of sufficient advantage to the public to warrant the paying of the damages assessed, the board shall declare the highway located, changed, or vacated and all damages declared assessed shall be paid by the county. However, if the board determines that the damages assessed are greater than the advantages of the proposed location, change, or vacation, the board shall order the petition dismissed.
Source: SL 1883, ch 112, § 59; CL 1887, § 1319; RPolC 1903, § 1730; RC 1919, § 8542; SDC 1939, § 28.0607; SL 2018, ch 168, § 3.
31-3-33. Assessment and payment of damages.
All damages sustained by reason of the locating, changing, or vacating of any highway pursuant to this chapter, shall be assessed and paid by the board having highway jurisdiction thereof or, if there is joint exercise of authority by more than one board, then the damages shall be assessed and paid by those boards in proportion to their joint exercise of authority.
Source: SDC 1939, § 28.0606; SL 1985, ch 233, § 18.
31-3-34. Appeal to circuit court--Time allowed.
Any person who is a resident or landowner of such county or of land lying within ten miles of the boundaries of such county and who feels aggrieved by the final decision of the board in awarding or refusing to award damages in locating, vacating, or changing any public highway under the provisions of this chapter, or, notwithstanding the provisions of § 31-3-14, any person who is a resident or landowner of such county or of land lying within ten miles of the boundaries of such county and who feels aggrieved by the final decision of the board in locating, vacating, or changing any public highway under the provisions of this chapter, may appeal from such decision to the circuit court for the county within thirty days after the date on which the decision of the board has become effective by serving a written notice of appeal describing the decision from which appeal is being taken upon one of the members of the board by one of the methods prescribed in § 15-6-4. The appeal so taken shall be docketed as other causes pending in such court, and the same shall be heard and determined de novo.
Source: SDC 1939, § 28.0608; SL 1985, ch 233, § 19.
31-3-36. Location by consent.
Public highways may be located without the appointment of viewers, provided the written consent of all the owners of the land to be used for that purpose be first filed in the county auditor's office, and if it is shown to the satisfaction of the board of county commissioners that the proposed highway is of sufficient public importance to be opened and worked by the public, it shall make an order locating the same, from which time only shall it be regarded as a public highway.
Source: SL 1883, ch 67, § 1; CL 1887, § 1219; RPolC 1903, § 1624; RC 1919, § 8546; SDC 1939, § 28.0610.
31-3-37. Expenses of survey--Payment by person seeking location of highway.
If a survey of the highway mentioned in § 31-3-36 is necessary, the board of county commissioners before ordering such survey shall require the persons asking for the location of such highway to pay the expenses of such survey.
Source: SL 1883, ch 67, § 2; CL 1887, § 1220; RPolC 1903, § 1625; RC 1919, § 8547; SDC 1939, § 28.0611.
31-3-39. Field notes--Furnishing to board of supervisors of township.
Upon the written request of the board of supervisors of any township, the county auditor shall furnish a copy of the description, field notes, and plat, if any, of each highway running into or through such township, as appears by the description, field notes, and plat on file or of record in his office.
Source: SL 1883, ch 112, § 98; CL 1887, § 1346; RPolC 1903, § 1757; RC 1919, § 8625; SDC 1939, § 28.0617.
31-3-40. Field notes--Recording in township highway record.
Upon the filing of such copy in the township clerk's office, the township clerk shall record the same in the highway record book of the township and such record shall be prima facie evidence of the existence of such highway according to the description and plat so on file.
Source: SL 1883, ch 112, § 99; CL 1887, § 1347; RPolC 1903, § 1758; RC 1919, § 8626; SDC 1939, § 28.0618.
31-3-41. Relocation of highways--Contract of political subdivision with United States--Reimbursement.
The legally constituted authorities of any county, township, or municipality in the State of South Dakota are hereby authorized and empowered to enter into contracts with the United States of America fixing the terms and conditions under which the part of any highway or system of highways under the control, jurisdiction, and supervision of any such county, township, or municipality in this state which it is found necessary to relocate, rearrange, or alter in order to facilitate the construction of the dams and reservoirs, within the State of South Dakota, by the United States government in the development of the Missouri River flood control projects will be made. Provided that any such contract entered into shall provide for reimbursement of any such county, township or municipality by the United States of America for all works performed and materials furnished under said contract by any county, township, or municipality.
Source: SL 1953, ch 156, § 1; SDC Supp 1960, § 28.06A01.
31-3-42. Change in location of highway by political subdivision contracting with the United States.
The legally constituted authorities of any county, township, or municipality, in order to expeditiously carry out the terms of any contract or contracts entered into pursuant to § 31-3-41, are authorized by resolution to make changes in the location of any part of the said highway or system of highways under the control, jurisdiction, and supervision of said authorized authorities in such county, township, or municipality necessary to comply with said contract and also purchase rights-of-way and make surveys for the necessary projects and to let all contracts for the construction of the project necessary to such relocations, rearrangements, or alterations in the same manner as now provided by the laws of this state.
Source: SL 1953, ch 156, § 2; SDC Supp 1960, § 28.06A02.
31-3-43. Notice of proposed change--Publication.
No changes in the location of any highway or part of a highway or system of highways as contemplated, shall be entered into pursuant to § 31-3-41 until notice of the proposed changes of such highways shall have been published in the legal newspaper of the county in which said proposed changes are to be made. Said notice shall be published for two successive weeks, once each week, and not less than ten days prior to the adoption of any such proposed changes and which said notice shall state the time and place when and where any person interested may appear and be heard upon any objections they may wish to assert in opposition to any such proposed changes in relocation or establishing of any highways or parts of highways.
Source: SL 1953, ch 156, § 2; SDC Supp 1960, § 28.06A02.
31-3-44. Highways within extraterritorial area of municipality.
Any resolution and order of the township board of supervisors or the board of county commissioners to vacate, change, or locate a highway within a township or within a county and within the extraterritorial area of a municipality as defined in § 11-6-10 shall be subject to the approval of the governing board of the municipality exercising comprehensive planning and zoning powers within such extraterritorial area.
Source: SL 1984, ch 208, § 1.
31-3-45. Rights of utilities and rural water systems unaffected.
No vacation, change, or relocation of any highway as provided under this chapter, nor any no maintenance designation of a highway as provided under chapter 31-12, diminishes any existing right of use enjoyed by any utility, municipally owned utility, rural water system, or cooperative utility that provides electricity, gas, water, or telephone service.
Source: SL 1985, ch 233, § 21; SL 2018, ch 172, § 4.
31-3-46. Procedures for highway appeals from township board of supervisors.
Upon the filing of a notice of appeal pursuant to § 31-3-14 and unless a petition or motion is filed with circuit court, the question shall be submitted to a vote of the voters at the next regular or special township meeting of the voters. The township clerk shall in the notice of such meeting state that the question of vacating, changing, or locating such highway shall be submitted to a vote of the voters. The result of the vote upon such question shall be spread upon the minutes of the meeting and the decision of the voters upon such question is final. If a two-thirds majority of the votes cast is in favor of vacating, changing, or locating the highway, the highway shall be vacated, changed, or located without further proceedings.
Source: SL 1994, ch 236.
