49-16A-1
Definitions of terms.
49-16A-2
Corporation law--Applicability to railroads.
49-16A-3
Chapters governing railroads.
49-16A-4
Repealed.
49-16A-5
Freight charges to be just and reasonable.
49-16A-6
Freight charges to be uniformly applied--Unreasonable discrimination defined.
49-16A-7
Unreasonable discrimination prohibited.
49-16A-8
Transportation or service at cut rate or discrimination as felony.
49-16A-9
Failure to file or observe rates or tariffs as felony--Corporation or individual.
49-16A-10
Individual acts or omissions in scope of employment.
49-16A-11
Venue of criminal prosecution.
49-16A-12 to 49-16A-18. Repealed.
49-16A-19
Restraint of trade provisions applicable to railroads.
49-16A-20
Single-line rates as restraint of trade.
49-16A-21
Through rates, joint rates or joint through rates not restraint of trade unless intent
or effect to monopolize.
49-16A-22
Pooling agreements as restraint of trade.
49-16A-23
Common carrier obligations--Limitation.
49-16A-24
Bill of lading or contract for carriage--Shipper's acceptance as assent to terms.
49-16A-25
Lien for freightage.
49-16A-26
Preference to federal and state governments.
49-16A-27
Gratuitous shipment by railroad without reward--Duties.
49-16A-28
Directions of shipper--Conflicting directions--Delivery.
49-16A-29
Delivery at nearest station absent usage to contrary.
49-16A-30
Services other than carriage and delivery--Statutes governing.
49-16A-31
Delivery to connecting carrier--Liability to final destination.
49-16A-32
Railroad responsible for agents' acts.
49-16A-33
Loss or injury of freight in possession of connecting carrier--Proof to shipper on
demand.
49-16A-34
Claim for loss, injury or overcharge--Railroad to respond within sixty days--Bill
of lading or shipping receipt to accompany claim--Returns.
49-16A-35
Suit on claim--Interest--Attorney fee--Remedy cumulative.
49-16A-36
Notice of loss, injury or claim--Minimum time to be allowed--Contrary
contractual provision void.
49-16A-37
Interchange facilities required--Discrimination between connecting roads
prohibited--Switching and transferring cars.
49-16A-38
Joint through rates required--Duty to receive and transport freight and cars.
49-16A-39
Carload lots--Transfer to connecting road without added charge.
49-16A-40
Connecting roads--Intrastate shipments--Reasonable through rates--Same
facilities as for interstate traffic.
49-16A-41
Routing instructions by shipper.
49-16A-42
Sale or lease of road, property, rights, privileges, and franchises authorized.
49-16A-43
Repealed.
49-16A-43.1
Validation of defects in lease or sale made prior to January 1, 1994.
49-16A-43.2
Notice of sale of railroad property--Publication--Copy to be mailed to lessee.
49-16A-44
Report annually to department--Special reports and specific questions.
49-16A-45
Inspection of roads by department.
49-16A-46 Transfer of certain Public Utilities Commission functions to transportation department.
49-16A-47 Department as sole representative of state in abandonment, consolidation, merger and inclusion proceedings--Attorney general's duties--Rights not impaired.
49-16A-48 Department of transportation--Interstate commerce violations--Duties.
49-16A-49 Department of Transportation--Appearance before interstate commerce commission.
49-16A-50 Powers--Construction, operation and maintenance of roads across, along or over watercourses and highways--Overpasses and underpasses--Changing course of highway--Taking land.
49-16A-51 Powers--Crossing, intersecting and connecting railroads--Failure of railroads to agree--Alteration of grade or location.
49-16A-52 Powers--Equal privileges for tracks on landings and within municipalities--Failure of railroads to agree.
49-16A-53 Changing grade or location for convenience of public travel.
49-16A-54 Liability for damages from change--Time for damage claim--Notice--Nonresidents.
49-16A-55 Authorization to use public lands--Damage to occupant.
49-16A-56 Authorization to use school or public lands--Width of right-of-way.
49-16A-57 Plat of proposed road filed with commissioner of school and public lands--Duplicate to register of deeds.
49-16A-58 Issuance of certificate reserving school and public lands for railroad.
49-16A-59 Filing as vesting right to use--Duration of right--Forfeiture for failure to use.
49-16A-60 Deed from Governor after construction of road and payment for land taken--Ascertaining value of land.
49-16A-61 Title relates back to filing--Subsequent grants invalid.
49-16A-62 Other rights-of-way across deeded lands.
49-16A-63 Maps kept by commissioner of school and public lands--Noting and reserving right-of-way.
49-16A-64 Plat of proposed road filed with department--Grant of permit to construct road.
49-16A-65 Factors considered in assessing plat.
49-16A-66 Publicly constructed or acquired railroads as public highways.
49-16A-67, 49-16A-68. Repealed.
49-16A-69 Drainage necessitated by defect in railroad construction--Assessment of entire expense against railroad--Assessment against complainant or apportionment in other costs.
49-16A-70 Repealed.
49-16A-71 Extension of fireguards along right-of-way--Condemnation procedure--Petition.
49-16A-72 Extension of fireguards on unoccupied land--Right to burn--Maximum width.
49-16A-73 Facilities for transferring freight or cars between railroads--Department's directions--Sharing of costs.
49-16A-74 Facilities for transferring freight or cars between railroads--Judicial apportionment of costs.
49-16A-75 Eminent domain power--Authorization by Governor or commission required--Hearing on application.
49-16A-75.1 Commission to promulgate rules for railroad seeking to exercise eminent domain.
49-16A-75.2 Railroad carries burden of proof to show public necessity.
49-16A-75.3 Determination of public use consistent with public necessity--Appeal.
49-16A-75.4 Proceedings to establish compensation--Physical possession.
49-16A-76 Powers--Acceptance of voluntary grants for railroad purposes.
49-16A-77 Powers--Width of right-of-way--Additional land for proper construction--Compensation for lands taken.
49-16A-78 Entries upon land--Appropriation of land--Purposes of appropriation.
49-16A-79 Condemnation for spur tracks to serve industry.
49-16A-80 Entry and appropriation for changing location or grade--Surveys.
49-16A-81 Right to use public way--Agreement with local authorities--Appropriation by railroad upon failure to agree.
49-16A-82 Purchase of land--Failure to agree upon price--Determination by circuit court.
49-16A-83 Railroad-highway grade crossings.
49-16A-84 Authority to change grade of highway--Particular highways--Maintenance of highway--Maximum grade.
49-16A-85 Temporary routes during change of grade construction.
49-16A-86 Private farm crossings--Cattle guards--Duty to keep gates closed--Liability of railroad.
49-16A-87 Crossing standards--Warning sign.
49-16A-88 Warning signs--Erection by county commissioners at expense of railroad.
49-16A-89 Crossings--Erection of lighting or alarms at order of department.
49-16A-89.1 Erection of stop signs until alarms or lighting operational.
49-16A-89.2 Alarm or lighting device required where railroad crosses state trunk highway system.
49-16A-90 Tampering with light or signal--False light or signal--Felony.
49-16A-91 Fenced lands--Duty of railroad to fence along right-of-way--Type of fence--Maintenance.
49-16A-92 Notice to railroad to erect fence--Contents of notice--Time for compliance.
49-16A-93 Fencing right-of-way--Noncompliance by railroad--Construction by owner--Liability of railroad.
49-16A-94 Blocking of highway crossings--Employees not liable where blocking necessary under state or federal rules.
49-16A-95 Repealed.
49-16A-96 Bridges and abutments--Maintenance.
49-16A-97 Repealed.
49-16A-98 Restoration and maintenance of watercourses and highways affected by railroad construction.
49-16A-99 Repealed.
49-16A-100 Utility poles and wires on right-of-way--Commission to regulate.
49-16A-100.1 Right of utilities to cross over or under railroad right-of-way--Fee--Regulation and negotiation.
49-16A-100.2 Definitions relating to utility crossing of railroad right-of-way.
49-16A-100.3 Notice and application for placement of utility facility across railroad right-of-way.
49-16A-100.4 Commencement of construction across railroad right-of-way_Exception.
49-16A-100.5 Standard crossing fee--Flagging expense.
49-16A-100.6 Certificate of insurance or coverage for utilities crossing railroad right-of-way.
49-16A-100.7 Notice of objection by railroad--Petition for dispute resolution--Appeal.
49-16A-100.8 Additional requirements imposed by railroad--Objection by utility--Petition for resolution of objection--Appeal.
49-16A-100.9 Existing agreements--Eminent domain.
49-16A-100.10 Application of §§ 49-16A-100.2 to 49-16A-100.9.
49-16A-101 Repealed.
49-16A-102 Railroad police--Appointment and employment by railroad.
49-16A-103 Railroad police--Authority to arrest--Procedure on arrest without warrant.
49-16A-104 Authority of regular law enforcement officers unaffected--Responsibility for acts of railroad police.
49-16A-105 Entry upon railroad equipment while armed a felony.
49-16A-106 Tampering with journal boxes a felony.
49-16A-107 Malicious destruction of railroad property a felony.
49-16A-108 Malicious obstruction of tracks a felony.
49-16A-108.1 Application of §§ 49-16A-107 and 49-16A-108 to tourist railroad carrier.
49-16A-109 Punishment for malicious interference with railroad where death results.
49-16A-110 Insurance--Railroad may procure.
49-16A-111 Legislation relating to restraint of domestic animals or fences--Applicability to tracks.
49-16A-112 Abandonment of right-of-way--Occupation for three years by other users.
49-16A-113 Consideration for continued occupancy of right-of-way.
49-16A-114 Termination of right of occupancy unless right to continue acquired.
49-16A-115 Abandonment of right-of-way on public or Indian lands--Title claims.
49-16A-116 Municipal claim to reverter in railroad property--Quit claim authorized.
49-16A-117 Filing of certain records related to property conveyances by a railroad to a railroad.
49-16A-118 Effect of filing--Notice of rights and interests.
49-16A-119 Trains prohibited from blocking streets, roads or highways during emergency--Violation as misdemeanor.
49-16A-1. Definitions of terms.
Terms used in this chapter mean:
(1) "Common carrier," a carrier which holds itself out to the general public as engaged in the business of transporting freight in intrastate commerce which it is accustomed to and is capable of transporting from place to place in this state, for hire;
(2) "Department," the Department of Transportation created by chapter 1-44;
(3) "For hire," the condition of receiving remuneration of any kind, paid or promised, either directly or indirectly, for the transportation of freight;
(4) "Freight," all property tendered for transportation by a railroad;
(5) "Railroad," any association or corporation, or other entity, other than a state agency or authority, engaged in operating a common carrier by rail regardless of motive power used, excluding street railroads;
(6) "Road," all track, right-of-way, bridges, mainlines, branchlines, spurs, sidetracks, interchanges, and all other fixtures and real property owned or operated by a railroad to discharge its obligations as a common carrier by rail;
(7) "Shipper," a consignor or consignee;
(8) "Commission," the Transportation Commission created by § 1-44-4;
(9) "Negotiated in good faith," a bona fide offer to pay all costs and damages as compensation for the acquisition of property desired by the applicant for the construction or reconstruction of a road, including the economic costs or diminution associated with or caused by the construction or reconstruction if there is a partial taking of property.
Source: SL 1980, ch 322, § 1; SL 1990, ch 372, § 1; SL 1999, ch 222, § 3.
49-16A-2. Corporation law--Applicability to railroads.
Every railroad operating in this state is subject to the applicable provisions of Title 47 of the South Dakota Codified Laws except where in conflict with this chapter, but may additionally exercise the powers authorized by this chapter and is subject to the duties contained in this chapter.
Source: SL 1980, ch 322, § 2.
49-16A-3. Chapters governing railroads.
All railroads, unless built and operated solely for private purposes, are common carriers and are not subject to the provisions of Title 49 except as provided by this chapter and chapters 49-17 and 49-17A.
Source: SL 1980, ch 322, § 3.
49-16A-5. Freight charges to be just and reasonable.
All charges for carriage of freight by railroad must be just and reasonable.
Source: SL 1980, ch 322, § 5.
49-16A-6. Freight charges to be uniformly applied--Unreasonable discrimination defined.
A railroad providing transportation may not charge or receive from a person a different compensation for a service rendered, or to be rendered, in transportation the railroad may perform than it charges or receives from another person for performing a like and contemporaneous service in the transportation of a like kind of freight under substantially similar circumstances. A railroad that charges or receives a different compensation for that service unreasonably discriminates.
Source: SL 1980, ch 322, § 6.
49-16A-7. Unreasonable discrimination prohibited.
A railroad providing transportation or service may not subject a person, place, port, or type of traffic to unreasonable discrimination.
Source: SL 1980, ch 322, § 7.
49-16A-8. Transportation or service at cut rate or discrimination as felony.
A person who knowingly offers, grants, gives, solicits, accepts, or receives by any means transportation or service provided for property by a railroad at less than the rate in effect or by practicing discrimination is guilty of a Class 6 felony.
Source: SL 1980, ch 322, § 8.
49-16A-9. Failure to file or observe rates or tariffs as felony--Corporation or individual.
Any railroad providing transportation or service or an officer, director, receiver, trustee, lessee, agent, or employee of such railroad that intentionally does not file and publish its rate or tariffs as required by law or observe those tariffs is guilty of a Class 6 felony.
Source: SL 1980, ch 322, § 9; SL 1983, ch 15, § 109.
49-16A-10. Individual acts or omissions in scope of employment.
When acting in the scope of his employment, the actions and omissions of a person acting for or employed by a carrier or shipper that is subject to §§ 49-16A-8 and 49-16A-9 are considered to be the actions and omissions of that person.
Source: SL 1980, ch 322, § 10.
49-16A-11. Venue of criminal prosecution.
Trial of a criminal action under §§ 49-16A-9 and 49-16A-10 shall be in the circuit court for the county in which any part of the violation was committed or through which the transportation was conducted.
Source: SL 1980, ch 322, § 11.
49-16A-19. Restraint of trade provisions applicable to railroads.
For the purposes of intrastate commerce, a railroad is not a regulated utility as defined in § 37-1-3.5 and is subject to the provisions of chapter 37-1.
Source: SL 1980, ch 322, § 19.
49-16A-20. Single-line rates as restraint of trade.
Except where permitted under federal law, membership of a railroad in any group, organization, or bureau, or an agreement for the purpose of discussing or establishing single-line rates, or the establishment of a single-line rate through such a membership or under the influence of such a membership by a railroad, is restraint of trade within the meaning of § 37-1-3.1.
Source: SL 1980, ch 322, § 20.
49-16A-21. Through rates, joint rates or joint through rates not restraint of trade unless intent or effect to monopolize.
Two or more railroads which establish through rates, joint rates, or joint through rates for intrastate commerce as required by § 49-16A-38 are not subject to § 37-1-3.1 unless the intent or effect is to violate § 37-1-3.2.
Source: SL 1980, ch 322, § 21.
49-16A-22. Pooling agreements as restraint of trade.
Any pooling agreement or arrangement among railroads or among railroads and other common carriers is a violation of §§ 37-1-3.1 and 37-1-3.2.
Source: SL 1980, ch 322, § 22.
49-16A-23. Common carrier obligations--Limitation.
The common carrier obligations of a railroad cannot be limited by general notice, but may be limited by special contract in writing.
Source: SL 1980, ch 322, § 23.
49-16A-24. Bill of lading or contract for carriage--Shipper's acceptance as assent to terms.
By accepting a bill of lading or written contract for carriage with knowledge of its terms, a shipper assents to the rate of hire and the time, place, and manner of delivery stated. His assent to any other modification of a railroad's rights or obligations contained in a bill of lading or other written contract can be manifested only by his signature to the same.
Source: SL 1980, ch 322, § 24.
49-16A-25. Lien for freightage.
A railroad has a lien for freightage which is regulated by the title on liens.
Source: SDC 1939, § 8.0508; SDCL, § 49-5-19; SL 1980, ch 322, § 25.
49-16A-26. Preference to federal and state governments.
A railroad must always give a preference in time and may give a preference in price to the United States and to this state for transportation of freight under a declaration of emergency by the Governor.
Source: SL 1980, ch 322, § 26.
49-16A-27. Gratuitous shipment by railroad without reward--Duties.
A railroad without reward is subject to the same rules as gratuitous employees unless otherwise provided by statute. A railroad must complete any undertaking it has commenced the same as if it had received reward, unless it restores the freight carried to as favorable a position as before carriage was commenced.
Source: SL 1980, ch 322, § 27.
49-16A-28. Directions of shipper--Conflicting directions--Delivery.
A railroad must comply with the directions of a shipper to the same extent that an employee must comply with those of his employer. If the directions are conflicting, the railroad must comply with those of the consignor on all matters except delivery of the freight. On delivery he must comply with directions of the consignee unless the consignor has specially forbidden the railroad to receive orders from the consignee inconsistent with his own.
Source: SDC 1939, § 8.0303; SDCL, § 49-5-3; SL 1980, ch 322, § 28.
49-16A-29. Delivery at nearest station absent usage to contrary.
If there is no usage to the contrary at the place of delivery, freight carried on a railroad may be delivered at the station nearest the place to which it is addressed.
Source: SDC 1939, § 8.0306 (1); SDCL, § 49-5-5; SL 1980, ch 322, § 29.
49-16A-30. Services other than carriage and delivery--Statutes governing.
In respect to any service rendered by a railroad transporting freight, other than its carriage and delivery, its rights and obligations are according to the statutes on deposit and employer and employee.
Source: SDC 1939, § 8.1007; SDCL, § 49-5-21; SL 1980, ch 322, § 30.
49-16A-31. Delivery to connecting carrier--Liability to final destination.
If a railroad accepts freight for a place beyond its usual route, it must, unless it stipulates otherwise, deliver the freight at the end of its route in that direction to another competent common carrier which goes to the place of address or is connected with other competent common carriers which go to the final destination. A railroad's liability does not cease until delivery of the freight has been made at its final destination.
Source: SDC 1939, § 8.1005; SDCL, § 49-5-26; SL 1980, ch 322, § 31.
49-16A-32. Railroad responsible for agents' acts.
A railroad, operating as a common carrier, is absolutely responsible for the acts of its agents while acting in the scope of their agency when transporting freight.
Source: SDC 1939, § 52.0246; SDCL, § 49-5-28; SL 1980, ch 322, § 32.
49-16A-33. Loss or injury of freight in possession of connecting carrier--Proof to shipper on demand.
If freight, addressed to a place beyond the usual route of the railroad which first received it, is lost or injured the railroad must, within a reasonable time after demand, give satisfactory proof to the shipper that the loss or injury did not occur while the freight was in its possession.
Source: SDC 1939, § 8.1006; SDCL, § 49-5-27; SL 1980, ch 322, § 33.
49-16A-34. Claim for loss, injury or overcharge--Railroad to respond within sixty days--Bill of lading or shipping receipt to accompany claim--Returns.
Every claim for loss or injury to property in any manner, or overcharge for freight, for which a railroad in this state is liable, shall be adjusted, paid in full, or rejected by such railroad within sixty days after a written claim, stating the amount and the nature thereof accompanied by the original or duplicate bill of lading or shipping receipt, showing the amount paid for or on account of the shipment, is filed with any claims agent of the railroad over whose road the shipment was made. The original or duplicate bill of lading or shipping receipt shall be returned to the complainant when the claim is rejected or the time limit has expired.
Source: SDC 1939, § 52.0251; SDCL, § 49-5-29; SL 1980, ch 322, § 34.
49-16A-35. Suit on claim--Interest--Attorney fee--Remedy cumulative.
If any claim described in § 49-16A-34 is not adjusted and paid within the time limited by § 49-16A-34, the railroad is liable for interest at the current maximum usury rate allowed by law from the date of the filing of the claim and may also be liable for a reasonable attorney fee at the court's discretion, all to be recovered by the shipper or other person in interest, in any court of competent jurisdiction. In bringing suit for the recovery of any such claim for loss or injury, if the shipper or other person in interest fails to recover a judgment in excess of the amount that may have been tendered in an effort to make settlement of the claim by the railroad, then such shipper or person in interest shall not recover the interest or attorney fee provided for in this section. The remedy afforded by this section is cumulative to any other provided by law.
Source: SDC 1939, § 52.0251; SDCL, § 49-5-30; SL 1980, ch 322, § 35.
49-16A-36. Notice of loss, injury or claim--Minimum time to be allowed--Contrary contractual provision void.
Any provision, stipulation, or condition in a contract for carriage or other agreement made or entered into by or between a railroad and the owner or shipper of any freight, which provides that written or verbal notice of loss or injury, or of a claim, shall be made or given to the railroad or to any agent or officer thereof, or to any other person within any period less than four months from the date of the occurrence of any such loss or injury, is void.
Source: SDC 1939, § 52.0252; SDCL, § 49-5-31; SL 1980, ch 322, § 36.
49-16A-37. Interchange facilities required--Discrimination between connecting roads prohibited--Switching and transferring cars.
All railroads subject to this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective roads, and for the receiving, forwarding, and switching of cars and the receiving, forwarding, and delivering of freight to and from their several roads and to and from other roads and places connected therewith, and shall not discriminate in their accommodations, rates, and charges between connecting roads. Each railroad is required to switch and transfer cars for another for the purpose of being loaded or unloaded.
Source: SL 1980, ch 322, § 37.
49-16A-38. Joint through rates required--Duty to receive and transport freight and cars.
All railroads doing business in this state shall establish reasonable joint through rates for the transportation of freight between points upon their respective lines within this state, and shall receive and transport freight and cars over such route or routes as the shipper may direct.
Source: SL 1980, ch 322, § 38.
49-16A-39. Carload lots--Transfer to connecting road without added charge.
Carload lots shall be transferred to a connecting railroad without charge, in addition to the quoted rate, to the shipper or receiver of such carload lots, and such transfer shall be made without unreasonable delay.
Source: SDC 1939, § 52.0221; SDCL, § 49-12-2; SL 1980, ch 322, § 39.
49-16A-40. Connecting roads--Intrastate shipments--Reasonable through rates--Same facilities as for interstate traffic.
When shipments of freight transported between different points within this state are required to be carried by two or more railroads operating connecting lines, such railroads shall transport the same at reasonable through rates and shall at all times give the same facilities to intrastate traffic as they give to interstate traffic over their lines.
Source: SDC 1939, § 52.0221; SDCL, § 49-12-4; SL 1980, ch 322, § 40.
49-16A-41. Routing instructions by shipper.
If freight is delivered to a railroad for transportation to a point of destination, between which and the point of delivery two or more published through routes and through rates have been established pursuant to this chapter, and to which through routes and through rates the railroad is a party, the person making the shipment may designate in writing by which of such routes the freight shall be transported to its destination. Thereupon it is the duty of the initial railroad to route such freight and issue a through bill of lading as directed, and to transport such freight over its own line or lines and deliver the same to a connecting line or lines according to such through route. Each of the connecting railroads shall receive such freight and transport it over the designated line or lines and deliver it to the next succeeding carrier or consignee according to the routing instructions in the bill of lading. The shipper shall in all instances have the right to determine, where competing lines of a railroad constitute portions of a through line or route, over which of the competing lines his freight shall be transported.
Source: SDC 1939, § 52.0245; SDCL, § 49-12-15; SL 1980, ch 322, § 41.
49-16A-42. Sale or lease of road, property, rights, privileges, and franchises authorized.
A railroad may sell or lease the whole or any part of its road within this state, constructed or to be constructed, together with all property, rights, privileges, and franchises appertaining thereto, to any railroad organized or existing pursuant to the laws of the United States or this state, or of any other state of the United States.
Source: SDC 1939, § 52.0808; SDCL, § 49-19-8; SL 1980, ch 322, § 42.
49-16A-43.1. Validation of defects in lease or sale made prior to January 1, 1994.
Any defect in any lease or sale of any railroad property by a railroad pursuant to the provisions of chapter 49-16A made prior to January 1, 1994, is hereby validated, legalized and cured, and as to any such sale the railroad's instrument of conveyance shall operate to convey and transfer title to the person or persons named as grantee or grantees in such instrument of conveyance all the right, title, and interest of the railroad and in and to such property. This section does not affect any action pending on July 1, 1994.
Source: SL 1987, ch 346, § 2; SL 1994, ch 348, § 3.
49-16A-43.2. Notice of sale of railroad property--Publication--Copy to be mailed to lessee.
Prior to any sale of railroad property, except to the South Dakota Railroad Authority or to another railroad, the owner of such property shall publish a notice that such property is to be sold. The notice shall be published in the official newspaper of the political subdivision where such property is located. The notice shall be published at least once each week for at least two consecutive weeks. A copy of the notice shall also be mailed to each lessee of such property by certified mail at least two weeks prior to such sale. The notice shall contain a description of the property to be sold and the location for information concerning the sale.
Source: SL 1988, ch 373, § 2.
49-16A-44. Report annually to department--Special reports and specific questions.
In addition to any reports required to be filed with the secretary of state under Title 47, each railroad doing business in this state shall file its annual report, including the state supplement thereto and an inventory of all capital expenditures for state improvement projects, with the Department of Transportation. The department may, as it deems just and necessary for its information, require a railroad to file, within reasonable specified time limitations, special reports and answers to specific questions related to the planning and structuring of railroads operating within this state.
Source: SL 1980, ch 322, § 43.
49-16A-45. Inspection of roads by department.
Upon reasonable notice the Department of Transportation may inspect the roads of any railroad operating in this state.
Source: SL 1980, ch 322, § 44.
49-16A-46. Transfer of certain Public Utilities Commission functions to transportation department.
All functions of the Public Utilities Commission relating to the initiation, prosecution, intervention, defense, or appearance in any proceeding before any court, commission, board, tribunal, or agency, whether such functions are on behalf of the State of South Dakota or otherwise, and where such function relates to the abandonment, consolidation, merger, or inclusion of any railroad or part of a railroad are transferred to the Department of Transportation.
Source: SL 1979, ch 311, § 2; SDCL Supp, § 49-21-37; SL 1980, ch 322, § 45; SL 1990, ch 372, § 10.
49-16A-47. Department as sole representative of state in abandonment, consolidation, merger and inclusion proceedings--Attorney general's duties--Rights not impaired.
The Department of Transportation has the exclusive power to appear before any court, commission, board, tribunal, or agency as the representative of the State of South Dakota in any proceeding relating to the abandonment, consolidation, merger, or inclusion of any railroad, whenever, in the judgment of the department, the welfare of the state or the public interest so demands. The attorney general shall provide legal counsel as is necessary to assist the department to perform these functions. However, §§ 49-16A-46 to 49-16A-49, inclusive, shall not be interpreted so as to impair the right of any natural or legal person or persons, or anyone on their behalf, to have such representation as they deem fit of their own respective interests in any such proceeding.
Source: SL 1979, ch 311, § 1; SDCL Supp, § 49-21-38; SL 1980, ch 322, § 46.
49-16A-48. Department of transportation--Interstate commerce violations--Duties.
Whenever a resident of this state files a petition with the Department of Transportation, directed to the Interstate Commerce Commission of the United States, charging a railroad doing business in this state and engaged in interstate transportation of freight, with a violation of the Interstate Commerce Act of the United States, relating to abandonment, consolidation, merger, or inclusion, setting forth in the petition the facts constituting a violation, the department, if it deems the matter to be one of public interest, shall file the petition with the interstate commerce commission and appear in the matter in the place of the petitioner and prosecute the same at the expense of the state. Whenever the department determines that it is in the best interests of the State of South Dakota or its people, it may appear before the interstate commerce commission as a party in all proceedings relating to abandonment, consolidation, merger, or inclusion.
Source: SL 1979, ch 311, § 3; SDCL Supp, § 49-21-39; SL 1980, ch 322, § 47.
49-16A-49. Department of Transportation--Appearance before interstate commerce commission.
Whenever a matter is pending before the Interstate Commerce Commission of the United States, between a resident of this state as a petitioner and a railroad doing business in this state and engaged in interstate transportation of freight, charging such railroad with a violation of the Interstate Commerce Act, relating to abandonment, consolidation, merger, or inclusion, the Department of Transportation, after it determines that the questions involved are of public interest, may appear therein and be substituted as a party in place of the petitioner. Thereafter the matter shall be prosecuted by the department at the expense of the state in the same manner as though originally begun by it.
Source: SL 1979, ch 311, § 4; SDCL Supp, § 49-21-40; SL 1980, ch 322, § 48.
49-16A-50. Powers--Construction, operation and maintenance of roads across, along or over watercourses and highways--Overpasses and underpasses--Changing course of highway--Taking land.
Each railroad authorized to construct, operate, or maintain roads within this state, subject to the provisions of this chapter, may construct its roads across, along, or upon any stream of water, watercourse, street, highway, toll road, turnpike, levee, river front, or public landing, or canal, which its route intersects or touches; may carry any highway, street, toll road, or turnpike which it touches, intersects, or crosses, over or under its track, as may be most expedient for the public good; and may change the course or direction of any highway, street, turnpike, or toll road when made necessary or desirable to secure more easy ascent or descent by reason of any embankment or cut made in the construction of its roads, and take land necessary therefor, provided that such highway or road is not changed from its original course by more than ninety-nine feet, nor its distance lengthened for more than eighty-two and one-half feet.
Source: SDC 1939, § 52.0801 (5); SDCL, § 49-16-10; SL 1980, ch 322, § 49.
49-16A-51. Powers--Crossing, intersecting and connecting railroads--Failure of railroads to agree--Alteration of grade or location.
Each railroad authorized to construct, operate, or maintain a road within this state, may cross, intersect, join, and unite its road with any other railroad's previously constructed road, at any point on its route and upon the grounds of the other railroad, with the necessary turnouts, sidings, and switches, and other conveniences to further the objects of its connections. Each railroad whose road is intersected by any other railroad's new road shall unite with the other railroad to form such intersections and connections, and grant such facilities. If the railroads cannot agree upon the amount of compensation to be made, or the points and manner of the crossings and connections, the issue shall be determined by the circuit court. But no railroad which obtained a right of way and constructed its road at the point of intersection, before the application for such determination to the court was made, shall be required to alter the grade or change the location of its road.
Source: SDC 1939, § 52.0801 (6); SDCL, § 49-16-11; SL 1980, ch 322, § 50.
49-16A-52. Powers--Equal privileges for tracks on landings and within municipalities--Failure of railroads to agree.
Each railroad authorized to construct, operate, or maintain a road within this state, may have and use equal room, ground, rights, privileges, and conveniences for its tracks, switches, sidings, and turnouts on any levee, river bank or front, or public landing, and on any street, block, alley, square, or public ground within an incorporated municipality, any charter or ordinance of any municipality to the contrary notwithstanding. To accomplish this, it may adjust, with other railroads, the ground to be occupied by each with such tracks, switches, sidings, and turnouts. If the railroads cannot agree upon an adjustment or reasonable compensation for damages caused by the adjustment, the adjustment and compensation shall be determined by the circuit court.
Source: SDC 1939, § 52.0801 (7); SDCL, § 49-16-12; SL 1980, ch 322, § 51.
49-16A-53. Changing grade or location for convenience of public travel.
If a railroad finds it necessary, for the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or for other reasonable causes, to change the grade or location of any portion of its road, it may make such changes of grade and location not departing from its general route.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-19; SL 1980, ch 322, § 52.
49-16A-54. Liability for damages from change--Time for damage claim--Notice--Nonresidents.
A railroad is liable in damages, for injury which may have been caused by a change made pursuant to § 49-16A-53, to the owner of real property upon which such road was previously constructed, to be ascertained and paid, or deposited in case of an original location of a road. No damages shall be allowed unless claimed within ninety days after actual notice, in writing, of the intended change is given to an owner residing on the premises, or if the owner is a nonresident, the notice is made by publication in a newspaper of general circulation.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-21; SL 1980, ch 322, § 53.
49-16A-55. Authorization to use public lands--Damage to occupant.
Each railroad is authorized to pass over, occupy, and enjoy all the public land, to the extent and in the manner prescribed by the act of Congress approved March 3, 1875. Any damages accruing to an occupant or possessory claimant, or other person who may reside on or have improvements upon such public land, shall be determined and paid for by the railroad the same as is provided for owners of private lands.
Source: SDC 1939, § 52.0815; SDCL, § 49-20-4; SL 1980, ch 322, § 54.
49-16A-56. Authorization to use school or public lands--Width of right-of-way.
Each railroad authorized to construct a road in this state may locate and construct the road across any of the school or other public lands of the state, and may, for that purpose, hold, occupy, and enjoy a right-of-way therefor, fifty feet on each side of the center of the track of the road, and extra width as may be necessary for cuts, embankments, gravel pits, and other works of the road, or for the protection of the road from snow, subject to the approval of the Governor.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-5; SL 1980, ch 322, § 55.
49-16A-57. Plat of proposed road filed with commissioner of school and public lands--Duplicate to register of deeds.
Each railroad authorized to construct a road in this state, that has surveyed its road, shall cause a plat of the road, clearly indicating the boundary line of the right-of-way and area in acres and fractions, to be certified by its chief engineer or president, and acknowledged, and filed with the commissioner of school and public lands, and a duplicate with the register of deeds of each county in which the land is situated.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-6; SL 1980, ch 322, § 56.
49-16A-58. Issuance of certificate reserving school and public lands for railroad.
The commissioner of school and public lands shall, upon the filing in his office by any railroad of a map of its road across any of the school or public lands, issue to that railroad a certificate stating that such lands have been reserved for its use. The certificate shall operate as authority to the railroad to take, hold, and use such lands for the purposes of its railroads.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-7; SL 1980, ch 322, § 57.
49-16A-59. Filing as vesting right to use--Duration of right--Forfeiture for failure to use.
The filing with the commissioner of school and public lands of the map required by § 49-16A-58 authorizes the railroad, for one year from the filing date, to enter upon the land so surveyed and selected and construct a road thereon. If the railroad does not construct its road across the land within one year after the filing of the map, it forfeits all rights acquired by the filing of the map.
Source: SDC 1939, § 52.0816; SDCL, § 49-20-8; SL 1980, ch 322, § 58.
49-16A-60. Deed from Governor after construction of road and payment for land taken--Ascertaining value of land.
As soon as a road is constructed over such school and public lands, proven to the satisfaction of the Governor, and upon paying the full value of the lands taken, such value to be ascertained by the commissioner of school and public lands or, in the event of disagreement, by the circuit court in the manner provided for a condemnation proceeding, the Governor shall convey by deed of right of way, to the railroad constructing the road, the right to hold and use the lands for purposes authorized by this chapter. The deed shall be executed in the name of the state by the Governor, under the great seal of the state, and attested by the commissioner of school and public lands, under the seal of his office.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-9; SL 1980, ch 322, § 59.
49-16A-61. Title relates back to filing--Subsequent grants invalid.
The title vested by the Governor's deed to such lands shall relate back to the date of the filing of the map with the commissioner of school and public lands pursuant to § 49-16A-58. No subsequent grant from the state to any other person of any tract of land shall divest the railroad of its rights authorized by this chapter.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-10; SL 1980, ch 322, § 60.
49-16A-62. Other rights-of-way across deeded lands.
Nothing in this chapter shall be so construed as to prevent any other person from obtaining the right to enter upon and cross school or other public lands of the state and to maintain his right-of-way across or along such lands.
Source: SDC 1939, § 52.0817; SDCL, § 49-20-11; SL 1980, ch 322, § 61.
49-16A-63. Maps kept by commissioner of school and public lands--Noting and reserving right-of-way.
The commissioner of school and public lands shall note on the maps in his office each legal subdivision of school or other public lands crossed by any road and their location. In disposing of such lands the commissioner shall reserve the right-of-way for the use of the railroad by appropriate description.
Source: SDC 1939, § 52.0819; SDCL, § 49-20-13; SL 1980, ch 322, § 62.
49-16A-64. Plat of proposed road filed with department--Grant of permit to construct road.
Any railroad planning to construct a road in this state, and having otherwise complied with all appropriate laws, shall file with the Department of Transportation a plat of the road proposed to be constructed, stating the principal points through which it is planned to construct the road. The department shall, if satisfied that the road is desirable and that there is a probability that it will be constructed, grant a permit to the railroad to construct the road.
Source: SDC 1939, § 52.0805; SDCL, § 49-19-1; SL 1980, ch 322, § 63.
49-16A-65. Factors considered in assessing plat.
The Department of Transportation may, when assessing a plat submitted pursuant to § 49-16A-64, consider all factors it deems relevant, including existing transportation facilities, their structure, physical condition, and location.
Source: SL 1980, ch 322, § 64.
49-16A-66. Publicly constructed or acquired railroads as public highways.
All roads constructed or acquired by the state or any political subdivision for use by a railroad are works of public necessity and importance and are public highways.
Source: SL 1980, ch 322, § 65.
49-16A-69. Drainage necessitated by defect in railroad construction--Assessment of entire expense against railroad--Assessment against complainant or apportionment in other costs.
If it appears that the necessity for the drainage of land adjacent to the right-of-way of a railroad is caused by the failure of the railroad to have a sufficient opening in its embankment or any other defect in construction, then the expense of the drainage shall be assessed wholly against the railroad; otherwise it shall be assessed against the complainant, except where the necessity for the drainage is partly attributed to the railroad. In that event the expense shall be apportioned between the railroad and the complainant in an equitable manner.
Source: SDC 1939, § 52.0830; SDCL, § 49-20-18; SL 1980, ch 322, § 68.
49-16A-71. Extension of fireguards along right-of-way--Condemnation procedure--Petition.
Whenever a railroad owning or operating any road in this state, and authorized by law to exercise the right of condemning private property, deems it necessary to extend a fireguard along a road or any part of the road, and beyond the limits of the right-of-way of the railroad, it may do so, and for that purpose shall proceed in extending the fireguards in the manner provided by law pertaining to condemnation proceedings. The petition filed shall describe the desired fireguard and give any other particulars necessary to the determination of all the questions involved in the proceedings.
Source: SDC 1939, § 52.0821; SDCL, § 49-20-20; SL 1980, ch 322, § 70.
49-16A-72. Extension of fireguards on unoccupied land--Right to burn--Maximum width.
Any railroad within this state deeming it necessary to extend its fireguards may, for that purpose, enter upon any unoccupied land belonging to the state and burn a strip of land not exceeding two hundred feet in width on either side of its right of way.
Source: SDC 1939, § 52.0822; SDCL, § 49-20-21; SL 1980, ch 322, § 71.
49-16A-73. Facilities for transferring freight or cars between railroads--Department's directions--Sharing of costs.
Upon application of any interested person the Department of Transportation shall direct the manner in which railroads provide facilities for transferring cars or freight from one railroad's road to another. Each connecting railroad shall pay its proportionate share of the building and maintenance of the tracks and switches necessary to furnish the transfer facilities required by the department.
Source: SDC 1939, § 52.0242; SDCL, § 49-21-14; SL 1980, ch 322, § 72.
49-16A-74. Facilities for transferring freight or cars between railroads--Judicial apportionment of costs.
In case the connecting railroads cannot agree on the amount which each railroad shall pay pursuant to § 49-16A-73, then the amount shall, upon application of either party, be determined by the circuit court for the county where transfer facilities are furnished.
Source: SDC 1939, § 52.0242; SDCL, § 49-21-15; SL 1980, ch 322, § 73.
49-16A-75. Eminent domain power--Authorization by Governor or commission required--Hearing on application.
A railroad may exercise the right of eminent domain in acquiring right-of-way as provided by statute, but only upon obtaining authority from the Governor or if directed by the Governor, or the commission, based upon a determination by the Governor or the commission that the railroad's exercise of the right of eminent domain would be for a public use consistent with public necessity. The Governor or the commission shall consider the requirements of §§ 49-16A-75.1 to 49-16A-75.3, inclusive, when granting or denying an application for authority to use eminent domain. The decision to grant or deny an application shall be made after reasonable notice and opportunity to be heard, pursuant to chapter 1-26. However, an impartial hearing examiner may be appointed by the Governor or the commission to administer the proceedings or make recommendations. Any parties who are united in interest or representation shall unite in the filing of an affidavit for change of hearing examiner under the provisions of § 1-26D-10. The filing of such affidavit by one party is deemed to be filed by all of the parties. No more than one change of hearing examiner may be granted on request or affidavit made by or on behalf of the same party or parties united in interest under the provisions of § 1-26D-10. However, the filing of an affidavit and the first change of hearing examiner does not prevent any other party to the action or any party's attorney from obtaining a change in hearing examiner upon a showing of an unacceptable risk of actual bias or prejudice concerning a party. The Governor or the chair of the commission shall replace the hearing examiner within five business days upon any recusal. A hearing shall be held and a decision rendered on any application within ninety days following the receipt of a new application and upon any application pending before the Governor or the commission on July 1, 2008.
The denial or withdrawal of an application does not prejudice the ability of a railroad to resubmit an application. Any appeal, pursuant to chapter 1-26, taken from a decision of the Governor or the commission shall be handled as an expedited appeal by the courts of this state.
Source: SL 1980, ch 322, § 74; SL 1999, ch 222, § 4; SL 2008, ch 238, § 1.
49-16A-75.1. Commission to promulgate rules for railroad seeking to exercise eminent domain.
The commission shall in accordance with chapter 1-26, promulgate rules:
(1) Establishing a form upon which a railroad may apply for authority to exercise the right of eminent domain;
(2) Specifying the information to be submitted by an applicant; and
(3) Administering applications for authority to exercise the right of eminent domain.
Source: SL 1999, ch 222, § 5.
49-16A-75.2. Railroad carries burden of proof to show public necessity.
The applicant has the burden of proving by a preponderance of the evidence that the exercise of the right of eminent domain is a public use consistent with public necessity.
Source: SL 1999, ch 222, § 6.
49-16A-75.3. Determination of public use consistent with public necessity--Appeal.
A railroad's exercise of the right of eminent domain is a public use consistent with public necessity only if the use of eminent domain is proposed by an applicant who has negotiated in good faith to privately acquire sufficient property without the use of eminent domain. No determination of public use or necessity or any other issue properly decided by the Governor or the commission may be addressed by the circuit court in an action for condemnation. Such a determination may only be challenged upon direct appeal of that determination. Notwithstanding appeal of such determination, the railroad may proceed at any time by action in circuit court for possession and determination of compensation for any real property taken or damaged.
Source: SL 1999, ch 222, § 7; SL 2006, ch 232, § 1; SL 2008, ch 238, § 2.
49-16A-75.4. Proceedings to establish compensation--Physical possession.
Upon a failure to reach agreement on compensation following a determination pursuant to § 49-16A-75.3, either party may bring a proceeding in state court to establish compensation to be paid for the property taken or damaged. The court shall expedite the proceedings. A railroad is not entitled to physical possession of the property to be taken pursuant to the exercise of eminent domain except upon the earlier to occur of either:
(1) Execution of a written agreement between the parties as to fair market value of compensation;
(2) Entry of a judgment of condemnation in the circuit court; or
(3) Upon posting by the railroad of a bond to be established by the court as soon as possible but no later than one hundred twenty days following petition by the railroad for possession. The bond shall be in an amount the court determines to be a preliminary estimate of compensation based on the best information available, but is not determinative of final compensation or admissible as evidence thereon.
Source: SL 2008, ch 238, § 3.
49-16A-76. Powers--Acceptance of voluntary grants for railroad purposes.
Each railroad authorized to construct, operate, or maintain a road within this state, may take and hold such voluntary grants of real and other property as are made to it, to aid in the construction, maintenance, and accommodation of its road. Any real property received by voluntary grant shall be held and used for the purposes of the grant only.
Source: SDC 1939, § 52.0801 (2); SDCL, § 49-16-7; SL 1980, ch 322, § 75.
49-16A-77. Powers--Width of right-of-way--Additional land for proper construction--Compensation for lands taken.
Each railroad authorized to construct, operate, or maintain a road within this state, may lay out a road not exceeding one hundred feet in width, and construct it. For the purpose of cuttings and embankments and of obtaining gravel or other material, the railroad may take as much land as may be necessary for the proper construction, operation, and security of the road, and for the protection of the road from snow, and may cut down any standing trees that may be in danger of falling on the road. The railroad shall provide compensation, as provided by law, for lands taken for the use of a railroad.
Source: SDC 1939, § 52.0801 (4); SDCL, § 49-16-9; SL 1980, ch 322, § 76.
49-16A-78. Entries upon land--Appropriation of land--Purposes of appropriation.
Each railroad authorized to construct, operate, or maintain a road within this state may enter upon any land for the purpose of examining and surveying its road, and may take, hold, and appropriate so much real property as may be necessary for the location, construction, and convenient use of its road, including all necessary grounds for buildings, stations, workshops, depots, machine shops, switches, sidetracks, snow defenses, and water stations. It may take all materials for the construction of the road and its appurtenances, and the right of way over adjacent land sufficient to enable the railroad to construct and repair its road. The railroad may obtain the right to such real property by purchase or condemnation in the manner provided by law.
Source: SDC 1939, § 52.0811; SDCL, § 49-20-1; SL 1980, ch 322, § 77.
49-16A-79. Condemnation for spur tracks to serve industry.
Each railroad owning, leasing, or operating a road in this state may condemn property for the right-of-way of spur tracks designed to reach or serve industries or industrial enterprises, such as mills, mines, smelters, factories, warehouses, and other manufacturing and industrial enterprises, for which freight train service is not performed.
Source: SDC 1939, § 52.0825; SDCL, § 49-22-11; SL 1980, ch 322, § 78.
49-16A-80. Entry and appropriation for changing location or grade--Surveys.
For the purpose of making any change in the location and grades of a road pursuant to § 49-16A-79, a railroad has all the rights, powers, and privileges to enter upon and appropriate such real property and make surveys necessary to effect such changes and grades, upon the same terms and subject to the same obligations, rules, and regulations as are prescribed by law.
Source: SDC 1939, § 52.0807; SDCL, § 49-19-20; SL 1980, ch 322, § 79.
49-16A-81. Right to use public way--Agreement with local authorities--Appropriation by railroad upon failure to agree.
If it is necessary for a road to occupy a road, street, alley, or public way, or ground of any kind, the municipal or other corporation, or public officer or public authorities owning or having charge thereof, and the railroad, may agree on the manner, terms and conditions on which the same may be used or occupied. If the parties are unable to agree and it is necessary, in the judgment of the railroad, to use or occupy such road, street, alley, or other public way or ground, the railroad may appropriate so much of the same as may be necessary for the purposes of its road, in the same manner and on the same terms as provided in this chapter for the appropriation of the property of individuals.
Source: SDC 1939, § 52.0823; SDCL, § 49-20-15; SL 1980, ch 322, § 80.
49-16A-82. Purchase of land--Failure to agree upon price--Determination by circuit court.
A railroad may purchase and use real property for a price to be agreed upon with its owners. The damages to be paid for any real property taken, when not agreed on, shall be determined by the circuit court for the county where the real property is situated, in conformity with the law pertaining to condemnation proceedings.
Source: SDC 1939, § 52.0813; SDCL, § 49-20-2; SL 1980, ch 322, § 81.
49-16A-83. Railroad-highway grade crossings.
The Department of Transportation may require and regulate construction of railroad and highway crossings as provided by chapter 31-27.
Source: SDC 1939, § 52.0910; SDCL, § 49-20-22; SL 1976, ch 294, § 24; SL 1980, ch 322, § 82.
49-16A-84. Authority to change grade of highway--Particular highways--Maintenance of highway--Maximum grade.
A railroad may raise or lower any public highway, not within the limits a municipality, for a railroad crossing, by petitioning the board of county commissioners, if the place is not a part of the state highway system, or by petition to the Department of Transportation if it is a part of the state system, but must guarantee to place and keep it in as good repair and condition as before the alteration was made, at its own expense. The grade approaching the crossing shall not exceed ten percent at any point thereof.
Source: SDC 1939, § 52.0828; SDCL, § 49-19-23; SL 1980, ch 322, § 83.
49-16A-85. Temporary routes during change of grade construction.
A railroad, while raising or lowering a public highway, or while making any other alterations which obstruct a public highway, shall provide and keep suitable temporary ways in good order to enable traffic to avoid or pass the obstruction.
Source: SDC 1939, § 52.0828; SDCL, § 49-19-24; SL 1980, ch 322, § 84.
49-16A-86. Private farm crossings--Cattle guards--Duty to keep gates closed--Liability of railroad.
A railroad owning or operating a road in this state, which is constructed across the land of any person leaving a portion of the premises on each side of its right-of-way, shall, when ordered to by the Department of Transportation, make and keep in good repair a private farm crossing or other causeway over its right-of-way, and upon like order shall construct and maintain safe and adequate cattle guards and wing fences for the private farm crossings. The owner or lessee of the land shall keep the gates for such private farm crossing closed except when in actual use. A railroad is not liable to the owner or lessee of such land for any loss or damage sustained to his property by reason of a failure to keep the gates closed.
Source: SDC 1939, § 52.0909; SDCL, § 49-19-26; SL 1980, ch 322, § 85; SL 1984, ch 216, § 4.
49-16A-87. Crossing standards--Warning sign.
Each railroad shall construct at all points where its road crosses any public road, good, sufficient, and safe crossings and shall erect at such points, at a sufficient elevation from the road to admit free passage of vehicles of every kind, a sign with large and distinct letters giving notice of the proximity of the road and warning persons of the necessity for looking out for trains.
Source: SDC 1939, § 52.0923; SDCL, § 49-25-16; SL 1980, ch 322, § 86.
49-16A-88. Warning signs--Erection by county commissioners at expense of railroad.
If a railroad refuses or neglects, for more than thirty days after notice given by a board of county commissioners, to comply with the provisions of § 49-16A-87, it is the duty of the board to erect the signs, and the railroad is liable for all expenses so incurred by the board.
Source: SDC 1939, § 52.0923; SDCL, § 49-25-18; SL 1980, ch 322, § 87.
49-16A-89. Crossings--Erection of lighting or alarms at order of department.
If, in the opinion of the Department of Transportation, it is necessary for the safety and protection of the public that street crossings over railroad tracks be lighted or street crossing alarms be installed to notify the public of approaching trains, the department shall order the railroad over whose road such street crosses to install crossing alarms or order the crossings to be lighted, or order both alarms and lighting by the railroad in a manner and method as, in the opinion of the department, will be the most suitable for the protection of the public.
Source: SDC 1939, § 52.0927; SDCL, § 49-25-15; SL 1980, ch 322, § 88; SL 1984, ch 216, § 5.
49-16A-89.1. Erection of stop signs until alarms or lighting operational.
If the Department of Transportation orders a railroad to install crossing alarms or orders a crossing to be lighted pursuant to § 49-16A-89, the department shall erect and maintain stop signs, which conform with standards found in the manual on uniform traffic control devices, at the crossing from the time of issuance of the order until such time as the alarms or lighting have been installed and are operational.
Source: SL 1987, ch 347.
49-16A-89.2. Alarm or lighting device required where railroad crosses state trunk highway system.
Any railroad tracks over which an operating train travels which crosses a portion of the state trunk highway system, as defined in chapter 31-4, shall have a crossing alarm or a lighting device, or both, to alert the public of approaching trains and to notify the public of trains crossing the highway. The crossing alarm or lighting device shall be in place by December 31, 1998. The Department of Transportation shall decide the method which is most suitable for the protection of the public. The Department of Transportation shall use any federal highway safety funds to pay for the crossing alarms and lighting devices. However, if federal highway safety funds are not available, the railroad owning or operating the tracks is liable for the expenses of the crossing alarm or lighting device.
Source: SL 1996, ch 272.
49-16A-90. Tampering with light or signal--False light or signal--Felony.
Any person who unlawfully masks, alters, or removes a light or signal, or intentionally exhibits a false light or signal with intent to bring a locomotive, railroad car, or train of cars into danger is guilty of a Class 4 felony.
Source: SDC 1939, § 13.1621; SDCL, § 49-25-19; SL 1980, ch 322, § 89; SL 1983, ch 15, § 110.
49-16A-91. Fenced lands--Duty of railroad to fence along right-of-way--Type of fence--Maintenance.
If the owner of a tract of land abutting on a road within this state plans to inclose the tract and constructs a good and sufficient fence about the tract on all sides except along the side abutting the road, the railroad shall supply the landowner with the materials needed to construct a fence not less than four and one-half feet high. If the owner incloses a tract of land with a woven wire fence with wires crossing each other close enough to keep sheep and hogs confined, the railroad shall supply the landowner with the materials needed to construct a like fence along its right-of-way on the side of the tract so far as it extends along the road. The railroad shall maintain or supply the materials to maintain the fence in good repair and condition until released by the owner of the tract, or until the owner of the tract ceases to maintain his portion of the fence in good repair and condition for one year.
Source: SDC 1939, § 52.0910; SDCL, § 49-20-22; SL 1976, ch 294, § 24; SL 1980, ch 322, § 90.
49-16A-92. Notice to railroad to erect fence--Contents of notice--Time for compliance.
If the owner of a tract of land has completed his portion of the fence around the proposed inclosure, he shall give written notice of its completion to the railroad on whose road the tract is situated, by service on the railroad describing in the notice the situation of the tract and the appropriate number of acres to be inclosed and the length of the fence required along the line of the railroad to complete the proposed inclosure.
The railroad shall supply the materials needed to construct and complete its portion of the fence within forty-five days after the service of the notice.
Source: SDC 1939, § 52.0911; SDCL, § 49-20-23; SL 1976, ch 294, § 25; SL 1980, ch 322, § 91.
49-16A-93. Fencing right-of-way--Noncompliance by railroad--Construction by owner--Liability of railroad.
If a railroad neglects or refuses to comply with the requirements of §§ 49-16A-91 and 49-16A-92, the owner of the tract may construct or repair the fence along the road, and the railroad is liable to the owner for an amount not exceeding the actual cost of all materials used in the construction or repair of the fence of like construction but excluding all cost of labor, which may be recovered in a civil action. The railroad is also liable for all damages accruing by reason of its neglect or refusal. However, a railroad is not required to build fences nor be liable for any damages for refusal to build fences when the earth is frozen.
Source: SDC 1939, § 52.0912; SDCL, § 49-20-24; SL 1969, ch 199; SL 1976, ch 294, § 26; SL 1980, ch 322, § 92.
49-16A-94. Blocking of highway crossings--Employees not liable where blocking necessary under state or federal rules.
No railroad employee shall be held liable for any railroad engine or cars occupying or blocking any street, road, or highway grade crossing where such occupying or blocking is necessitated or required in order to comply with a rule, regulation or order issued by any state or federal regulatory body.
Source: SL 1977, ch 388; SDCL Supp, § 49-24-18; SL 1980, ch 322, § 93.
49-16A-96. Bridges and abutments--Maintenance.
Each railroad shall maintain and keep in good repair all of its bridges and their abutments.
Source: SDC 1939, § 52.0829; SDCL, § 49-19-27; SL 1980, ch 322, § 95.
49-16A-98. Restoration and maintenance of watercourses and highways affected by railroad construction.
Each railroad shall restore every stream of water, watercourse, street, highway, toll road, turnpike, or canal, across, along, or upon which its road is constructed, to its former state or to such condition as that its usefulness is not materially impaired, and shall maintain the same in such condition against any effects produced by such railroad.
Source: SDC 1939, § 52.0907; SDCL, § 49-19-28; SL 1980, ch 322, § 97.
49-16A-100. Utility poles and wires on right-of-way--Commission to regulate.
The Public Utilities Commission shall make rules and regulations for the setting of poles on railroad right-of-way, and the stringing or suspending of telephone, telegraph, electric, or other wires over the track of railroads.
Source: SDC 1939, § 52.0258; SDCL, § 49-7-3; SL 1980, ch 322, § 99.
49-16A-100.1. Right of utilities to cross over or under railroad right-of-way--Fee--Regulation and negotiation.
Each electric utility, public utility, gas utility, municipal utility, municipal power agency, joint action agency, consumers power district, pipeline company, telecommunications company, and rural water system has the right to cross over or under the railroad right-of-way for the placement of facilities, upon payment of a reasonable fee, subject to reasonable regulation and negotiation in good faith as to location, placement, and compensation, when the placement of facilities is outside the public right-of-way.
Source: SL 2006, ch 232, § 2.
49-16A-100.2. Definitions relating to utility crossing of railroad right-of-way.
Terms used in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, mean:
(1) "Railroad," any nonpublic association or corporation, or other entity, engaged in operating a common carrier by rail or any other entity responsible for the management of crossings or collection of fees for the railroad;
(2) "Rural water system," an entity engaged in the treatment, distribution, and sale of water to rural consumers that was created by chapters 34A-5, 46A-3A, or 46A-9 or any nonprofit corporation engaged in such activity;
(3) "Utility," electric utility, public utility, gas utility, municipal utility, municipal power agency, joint action agency, consumers power district, pipeline company, telecommunications company, and rural water system;
(4) "Crossing," the construction, operation, repair, or maintenance of a facility, over, under, or across a railroad right-of-way by a utility. The term does not include longitudinal occupancy of railroad right-of-way;
(5) "Facility," any item of personal property placed over, across, or underground for use in connection with the storage or conveyance of water; sewage; electronic, telephone, or telegraphic communications; fiber optics; cablevision; electric energy; oil; gas; hazardous liquids; or other substances including pipes, sewers, conduits, cables, valves, lines, wires, manholes, or attachments;
(6) "Special circumstances," includes the railroad crossing's relationship to other property, location of the crossing in urban or other developed areas, the existence of unique topography or natural resources, or other dangers inherent in the particular crossing.
Source: SL 2014, ch 217, § 9; SL 2016, ch 223, § 1.
49-16A-100.3. Notice and application for placement of utility facility across railroad right-of-way.
Any utility that intends to place a facility across a railroad right-of-way shall provide to the railroad notice of the placement at least thirty days before the placement. The notice shall include a completed crossing application, including a drawing showing the location of the proposed crossing and the railroad's property, tracks, and wires that the utility will cross. The utility shall submit the crossing application on a form provided or approved by the railroad, if available. The crossing application shall be sent to the railroad by certified mail, return receipt requested. The application shall be accompanied by the crossing fee as set forth in § 49-16A-100.5, and a certificate of insurance as required by § 49-16A-100.6.
Source: SL 2014, ch 217, § 1; SL 2016, ch 223, § 2.
49-16A-100.4. Commencement of construction across railroad right-of-way--Exception.
Thirty days after the receipt by the railroad of the completed crossing application, the fee, and certificate of insurance, the utility may commence the construction of the crossing, unless the railroad notifies the utility in writing that the proposed crossing is a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way. In all other instances the utility shall be deemed to have authorization to commence construction of the facility.
Source: SL 2014, ch 217, § 2; SL 2016, ch 223, § 3.
49-16A-100.5. Standard crossing fee--Flagging expense.
Unless otherwise agreed by the parties, a utility that crosses a railroad right-of-way, other than a crossing within the public right-of-way, shall pay the railroad a one-time standard crossing fee of seven hundred fifty dollars for each crossing. The standard crossing fee is in lieu of any license, permit, application, processing fee, or any other fees or charges to reimburse the railroad for the direct expenses incurred by the railroad as a result of the crossing. No other fee may be assessed by the railroad or by any railroad agent, contractor, or assignee to the utility or to any agent or contractor of the utility. The utility shall also reimburse the railroad for any reasonable and necessary flagging expense associated with a crossing, based on the railroad traffic at the crossing, in addition to the standard crossing fee. No crossing fee is required if the crossing is located within a public right-of-way.
Source: SL 2014, ch 217, § 3; SL 2016, ch 223, § 4.
49-16A-100.6. Certificate of insurance or coverage for utilities crossing railroad right-of-way .
The certificate of insurance or coverage submitted by a municipality shall include commercial general liability insurance or equivalent form with a limit of not less than one million dollars for each occurrence and an aggregate of not less than two million dollars. The certificate of insurance submitted by any other utility other than a gas or hazardous materials pipeline utility shall include commercial general liability insurance with a combined single limit of a minimum of two million dollars for each occurrence and an aggregate limit of at least four million dollars. The certificate of insurance submitted by a gas or hazardous materials pipeline utility shall include commercial general liability insurance with a combined single limit of a minimum of five million dollars for each occurrence and an aggregate limit of at least ten million dollars. The railroad may require protective liability insurance with a combined single limit of two million dollars for each occurrence and four million dollars aggregate. The coverage may be provided by a blanket railroad protective liability insurance policy if the coverage, including the coverage limits, applies separately to each individual crossing. The coverage shall be required only during the period of construction, repair, or replacement of the facility.
Source: SL 2014, ch 217, § 4; SL 2016, ch 223, § 5.
49-16A-100.7. Notice of objection by railroad--Petition for dispute resolution--Appeal.
If a railroad objects to the proposed crossing due to the proposal being a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, the railroad shall provide notice of the objection and the specific basis of the objection to the utility by certified mail, return receipt requested. If the parties are unable to resolve the objection, either party may petition the Public Utilities Commission for resolution of the disputed crossing application within thirty days from receipt of the objection. Before filing a petition, the parties shall confer in good faith in an attempt to resolve the objection. If a petition is filed, the Public Utilities Commission, after notice and opportunity for hearing, must issue an order within sixty days of filing of the petition, during which time the crossing shall be stayed. The order may be appealed pursuant to chapter 1-26. The Public Utilities Commission shall assess its costs associated with a petition equitably against the parties.
Source: SL 2014, ch 217, § 5; SL 2016, ch 223, § 6.
49-16A-100.8. Additional requirements imposed by railroad--Objection by utility--Petition for resolution of objection--Appeal.
If a railroad asserts in writing by certified mail return receipt requested that special circumstances exist, or imposes additional requirements upon a utility for crossing its lines, other than the proposed crossing being a serious threat to the safe operations of the railroad or to the current use of the railroad right-of-way, the utility may object to one or more of the requirements. In such event, the utility shall provide notice of the objection and the specific basis of the objection to the railroad by certified mail, return receipt requested. If the parties are unable to resolve the objection, either party may petition the Public Utilities Commission for resolution of the objection within thirty days from receipt of the objection. Before filing a petition, the parties shall confer in good faith in an attempt to resolve the objection. If a petition is filed, the Public Utilities Commission, within ninety days of filing the petition, shall determine, after notice and opportunity for hearing, whether special circumstances exist that necessitate additional requirements for the placement of the crossing. The order may be appealed pursuant to chapter 1-26. The Public Utilities Commission shall assess its costs associated with a petition equitably against the parties.
Source: SL 2014, ch 217, § 6; SL 2016, ch 223, § 7.
49-16A-100.9. Existing agreements--Eminent domain.
Nothing in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, prevents a railroad and a utility from continuing under an existing agreement or otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing. Nothing in §§ 49-16A-100.2 to 49-16A-100.10, inclusive, impairs the authority of a utility to secure crossing rights by easement pursuant to the exercise of the power of eminent domain.
Source: SL 2014, ch 217, § 7.
49-16A-100.10. Application of §§ 49-16A-100.2 to 49-16A-100.9.
Sections 49-16A-100.2 to 49-16A-100.9, inclusive, apply to:
(1) Any crossing in existence before July 1, 2014 if an agreement concerning the crossing has expired or is terminated. In such instance, if the collective amount of seven hundred fifty dollars has been paid to the railroad during the existence of the crossing, no additional fee is required; and
(2) Any crossing commenced on or after July 1, 2014.
Source: SL 2014, ch 217, § 8.
49-16A-102. Railroad police--Appointment and employment by railroad.
A railroad organized under the laws of this state, or doing business within this state, may, at its own expense, appoint and employ policemen at stations or other places on its roads within this state for the protection of its property and the preservation of order on its premises, and in and about its cars, depots, depot grounds, yards, buildings, or other structures.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-1; SL 1980, ch 322, § 101.
49-16A-103. Railroad police--Authority to arrest--Procedure on arrest without warrant.
Policemen employed pursuant to § 49-16A-102 have the authority to arrest, with or without warrant, any person who commits an offense against the laws of this state, or the ordinances of any municipality, when such offense has been committed on the premises of the railroad, or in and about its cars, depots, depot grounds, yards, buildings, or other structures. They also have the authority of law enforcement officers in regard to the arrest and apprehension of offenders in or about such premises. If an arrest is made by such a policemen without warrant, he shall immediately take the offender to a magistrate having jurisdiction of the offense, and file a complaint against the offender.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-2; SL 1980, ch 322, § 102.
49-16A-104. Authority of regular law enforcement officers unaffected--Responsibility for acts of railroad police.
Nothing in § 49-16A-102 or 49-16A-103 shall be so construed as to restrict the lawful rights, powers, or privileges of a law enforcement officer within his respective jurisdiction. A railroad making an appointment pursuant to § 49-16A-102 is responsible for the acts of its policemen to the same extent as for the acts of any of its general agents or employees.
Source: SDC 1939, § 52.1201; SDCL, § 49-27-3; SL 1980, ch 322, § 103.
49-16A-105. Entry upon railroad equipment while armed a felony.
No person, either individually or as a member of any mob, band, or assembly, shall enter upon, occupy, or appropriate any part of a railway train or of railway equipment used or useful in the transportation of passengers or property, or in the maintenance or operation of any road in this state, armed with any instrument or weapon of any kind, for the purpose of committing any offense, or shall ride in any other than the usual, proper, and lawful manner at the legal rate of fare prescribed in the tariffs of the railroad, and in the proper coaches or cabooses provided for the purpose. A violation of this section is a Class 5 felony.
Source: SDC 1939, §§ 52.1204, 52.9921; SDCL, § 49-27-6; SL 1980, ch 322, § 104.
49-16A-106. Tampering with journal boxes a felony.
Any person who intentionally takes or removes the waste or packing or brass from any journal box of any locomotive, engine, tender, carriage, coach, caboose, or truck used or operated or capable of being used or operated on a railroad, is guilty of a Class 5 felony.
Source: SDC 1939, § 13.4514; SDCL, § 49-27-7; SL 1976, ch 294, § 34; SL 1980, ch 322, § 105.
49-16A-107. Malicious destruction of railroad property a felony.
Any person who maliciously removes, displaces, injures, or destroys any part of a railroad, any track of a railroad, any branch, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with a railroad, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.4513 (1); SDCL, § 49-27-8; SL 1976, ch 294, § 35; SL 1980, ch 322, § 106.
49-16A-108. Malicious obstruction of tracks a felony.
Any person who maliciously places an obstruction on the rails or track of a railroad, or any branch, or turnout connected with a railroad, is guilty of a Class 6 felony.
Source: SDC 1939, § 13.4513 (2); SDCL, § 49-27-9; SL 1976, ch 294, § 36; SL 1980, ch 322, § 107.
49-16A-108.1. Application of §§ 49-16A-107 and 49-16A-108 to tourist railroad carrier.
The provisions of §§ 49-16A-107 and 49-16A-108 apply to a tourist railroad carrier. A tourist railroad carrier is any person who is engaged in the business of selling tickets or admission to transport passengers by rail in this state primarily as a visitor attraction and the person owns, leases, or uses a minimum of five miles of railroad track.
Source: SL 2016, ch 224, § 1.
49-16A-109. Punishment for malicious interference with railroad where death results.
If death results from any violation of § 49-16A-107 or 49-16A-108 the offender is guilty of a Class 5 felony.
Source: SDC 1939, § 13.4513; SDCL, § 49-27-10; SL 1980, ch 322, § 108.
49-16A-110. Insurance--Railroad may procure.
Each railroad owning or operating a road in this state has an insurable interest in the property on the route of the road owned or operated by it and may procure insurance on its own behalf for its protection against damages.
Source: SDC 1939, § 52.0941; SDCL, § 49-26-6; SL 1980, ch 322, § 109.
49-16A-111. Legislation relating to restraint of domestic animals or fences--Applicability to tracks.
No law of this state or resolution or ordinance of any county, township, or municipality relating to the restraint of domestic animals or to the fences of farmers or landowners, is applicable to railway tracks unless specifically so stated in such laws, resolutions, or ordinances.
Source: SL 1980, ch 322, § 110.
49-16A-112. Abandonment of right-of-way--Occupation for three years by other users.
At the time of abandonment of any railroad right-of-way, any corporation, partnership, individual, or political subdivision of this state, owning, operating or maintaining any telegraph, telephone, electric transmission or distribution lines, pipelines, water or sewer lines, buildings, grain elevators or other permanent fixtures on the abandoned right-of-way, may continue to occupy the right-of-way for a period of three years as provided in §§ 49-16A-113 and 49-16A-114.
Source: SL 1980, ch 326, § 1; SL 1981, ch 329, § 3; SL 1981, ch 330, § 1.
49-16A-113. Consideration for continued occupancy of right-of-way.
Continued occupancy of such right-of-way for such period of occupancy shall be for the same consideration provided for in any existing lease or license for occupancy of such right-of-way, and any person continuing to so occupy shall pay the same to the owner of the right-of-way.
Source: SL 1980, ch 326, § 2.
49-16A-114. Termination of right of occupancy unless right to continue acquired.
Unless the person occupying the right-of-way has acquired the right to continue such occupancy by lease, license, purchase, or condemnation within three years of date of abandonment, the right to such occupancy shall cease.
Source: SL 1980, ch 326, § 3; SL 1981, ch 330, § 2.
49-16A-115. Abandonment of right-of-way on public or Indian lands--Title claims.
A railroad which abandons service over, salvages and removes its rail, ties and other track material from any right-of-way in which it claims any right, title or interest in public lands, as prescribed by the act of Congress approved March 3, 1875, as amended, or in Indian lands as prescribed by the act of Congress approved March 2, 1889, as amended, or § 49-16A-55, shall settle title claims with adjoining landowners and municipalities within one year after salvage of the abandoned road is complete or title to the abandoned railroad right-of-way easement reverts and vests, by operation of law, pursuant to 42 Stat. 414 (March 8, 1922).
Source: SL 1981, ch 329, § 1.
49-16A-116. Municipal claim to reverter in railroad property--Quit claim authorized.
The governing body of any municipality which may have a claim to a reverter or possibility of reverter in railroad property acquired by the act of Congress approved March 3, 1875, as amended, and conveyed by the railroad, may without charge or consideration quit claim such interest as may have been established by 42 Stat. 414 (March 8, 1922) to current owners of record claiming title to said property.
Source: SL 1981, ch 329, § 2.
49-16A-117. Filing of certain records related to property conveyances by a railroad to a railroad.
Any conveyance or lease, deed of trust, mortgage, or satisfaction thereof made by any railroad in connection with the sale, lease or purchase of the whole or any part of its road within this state to or from another railroad may be executed and acknowledged in the same manner as conveyances of real property by corporations and may be recorded in the Office of the Secretary of State, who shall specify the day and hour of reception and the volume and page where recorded, which is evidence of such facts.
Source: SL 1986, ch 393, § 1.
49-16A-118. Effect of filing--Notice of rights and interests.
Each record of an instrument filed with the secretary of state pursuant to § 49-16A-117 shall, from the time of reception, have the same effect, as to any property described therein, as the record of any similar instrument in the office of a register of deeds, and is notice of the rights and interests of the grantee, lessee, or mortgagee to the same extent as if it were recorded in each of the counties in which any property described therein is situated.
Source: SL 1986, ch 393, § 2.
49-16A-119. Trains prohibited from blocking streets, roads or highways during emergency--Violation as misdemeanor.
A standing railroad engine or car may not occupy or block any street, road, or highway grade crossing for more than twenty consecutive minutes, if the path of any emergency vehicle making an emergency trip is blocked by the railroad engine or car, unless it is disabled, by accident or otherwise and cannot be moved without striking any object or person on track. A violation of this section by a railroad corporation is a Class 2 misdemeanor.
Source: SL 1994, ch 355.
