45-5-1      Owner of mine or mining claim entitled to right-of-way for necessary road, ditch, cut, flume, shaft, or tunnel--Eminent domain for pollution control measures.
45-5-2      Petition for right-of-way--Filing with clerk of circuit court--Verification--Contents--Demand for relief.
45-5-3      Order to show cause--Service--Time for hearing.
45-5-4      Hearing on petition--Award of right-of-way--Appointment of commissioners to assess damages.
45-5-5      Assessment of damages by commissioners.
45-5-6      Payment or tender of damages--Use of right-of-way.
45-5-7      Report of commissioners may be set aside.
45-5-8      Appeals from assessment of damages--Time for taking--Service of notice upon respondent.
45-5-9      Appeal bond--Approval of sureties--Amount--Conditions.
45-5-10      Appeal from assessment of damages--Limited to amount of damages--Jury trial.
45-5-11      Bond pending appeal.
45-5-12      Costs of appeal.
45-5-13      Costs and expenses under chapter to be paid by party making application.
45-5-14      Costs and expenses if applicant tendered sum equal to or more than amount of damages assessed.

45-5-1. Owner of mine or mining claim entitled to right-of-way for necessary road, ditch, cut, flume, shaft, or tunnel--Eminent domain for pollution control measures.

If a mine or mining claim patented under the laws of the United States or held under the local laws and customs of this state is so situated that it cannot be conveniently worked without a road providing access; without a ditch, cut, or flume to convey water to the mining claim or water and tailings from the mining claim; or without a connecting shaft or tunnel; and if the road, ditch, cut, flume, shaft, or tunnel would necessarily pass over, under, through, or across any lands or mining claims owned or occupied by others under a patent from the United States or otherwise, the owner of the mine or mining claim is entitled to a right-of-way for the road, ditch, cut, flume, shaft, or tunnel over, under, through, and across the other lands or mining claims upon compliance with the provisions of this chapter. If the mine or mining claim cannot be conveniently worked without the necessary construction on property owned either in total or in part by others of devices, treatment and tailings ponds, or other installations for treatment of air or water pollution in order to comply with state or federal air and water pollution statutes, rules, or regulations, the owner of the mine or mining claim may exercise the power of eminent domain as to the surface estate only. In the exercise of eminent domain, the owner may proceed as condemnation proceedings are conducted by the state Department of Transportation pursuant to chapter 31-19, or as may otherwise be provided.

Source: SL 1881, ch 97, §§ 1, 2; CL 1887, §§ 2016, 2017; RPolC 1903, §§ 2550, 2551; RC 1919, §§ 8744, 8745; SDC 1939, § 42.0201; SL 1976, ch 269; SL 2011, ch 165, § 183.

45-5-2. Petition for right-of-way--Filing with clerk of circuit court--Verification--Contents--Demand for relief.

If, in order to enable the owner of a mining claim to successfully and conveniently work the claim, it is necessary that the owner have a right-of-way for any of the purposes set forth in § 45-5-1, and if such a right-of-way has not been acquired by agreement between the owner of the mining claim and the owner of the claim over, under, across, or upon which the owner of the mining claim seeks to establish the right-of-way, the owner of the mining claim may present to the judge of the circuit court for the county in which the desired right-of-way or some part of the right-of-way is situated, and file with the clerk of the court a petition requesting that the right-of-way be awarded. The petition shall be verified and contain a description of the character and extent of the right sought, a description of the mine or claim of the petitioner, and the claim on lands to be affected by the right or privilege, with the names of the occupants or owners of the lands. The petition may also set forth any tender or offer mentioned in § 45-5-14 and shall demand the relief sought.

Source: SL 1881, ch 97, § 3; CL 1887, § 2018; RPolC 1903, § 2552; RC 1919, § 8746; SDC 1939, § 42.0202; SL 2011, ch 165, § 184.

45-5-3. Order to show cause--Service--Time for hearing.

Upon the filing of a petition with the clerk of the court pursuant to § 45-5-2, the judge shall order the owners named in the petition of mining claims and lands to be affected by the proceeding to appear before the judge on a day named in the order, not less than ten days from the service of the order, and show cause why the right-of-way should not be allowed as requested. The order shall be served on each of the parties in the manner prescribed by law for serving summons in a civil action.

Source: SL 1881, ch 97, § 4; CL 1887, § 2019; RPolC 1903, § 2553; RC 1919, § 8747; SDC 1939, § 42.0203; SL 2011, ch 165, § 185.

45-5-4. Hearing on petition--Award of right-of-way--Appointment of commissioners to assess damages.

Upon the return day of the order or upon any day to which the hearing is adjourned, the judge shall proceed to hear the allegations and proofs of the respective parties. If upon the hearing the judge is satisfied that the claim of the petitioner should be worked by means of the privilege requested, the judge shall make an order adjudging and awarding to the petitioner the right-of-way, and shall appoint three commissioners who shall be disinterested residents of the county to assess the damage resulting to the lands or claims affected by the order.

Source: SL 1881, ch 97, § 5; CL 1887, § 2020; RPolC 1903, § 2554; RC 1919, § 8748; SDC 1939, § 42.0204; SL 2011, ch 165, § 186.

45-5-5. Assessment of damages by commissioners.

The commissioners appointed pursuant to § 45-5-4 shall be sworn or affirmed to discharge their duties faithfully and impartially. They shall proceed without unreasonable delay to examine the premises, shall assess the damage resulting from the right or privilege requested, and shall report the amount to the judge appointing them. If the right-of-way affects the property of more than one person or company, the report shall contain an assessment of the damages to each company or person.

Source: SL 1881, ch 97, § 6; CL 1887, § 2021; RPolC 1903, § 2555; RC 1919, § 8749; SDC 1939, § 42.0205; SL 2011, ch 165, § 187.

45-5-6. Payment or tender of damages--Use of right-of-way.

Upon the payment of the sum assessed as damages to the persons to whom it shall be awarded or a tender of the sum to them, the person petitioning is entitled to the right-of-way requested in the petition and may immediately proceed to occupy the right-of-way and erect works and structures and conduct excavations in the right-of-way as may be necessary to the use and enjoyment of the right-of-way.

Source: SL 1881, ch 97, § 8; CL 1887, § 2023; RPolC 1903, § 2557; RC 1919, § 8751; SDC 1939, § 42.0207; SL 2011, ch 165, § 188.

45-5-7. Report of commissioners may be set aside.

For good cause the judge may set aside the report of such commissioners and appoint three other commissioners whose duties shall be the same as provided in § 45-5-5.

Source: SL 1881, ch 97, § 7; CL 1887, § 2022; RPolC 1903, § 2556; RC 1919, § 8750; SDC 1939, § 42.0206.

45-5-8. Appeals from assessment of damages--Time for taking--Service of notice upon respondent.

Appeals from any assessment of such commissioners may be taken and prosecuted in the proper circuit court by any party interested at any time within ten days after written notice of the filing of the report of the commissioners, and a written notice of such appeal shall be served upon the respondent in the same manner as a summons is served in civil actions.

Source: SL 1881, ch 97, § 9; CL 1887, § 2024; RPolC 1903, § 2558; RC 1919, § 8752; SDC 1939, § 42.0208.

45-5-9. Appeal bond--Approval of sureties--Amount--Conditions.

The appellant shall file with the clerk of the court to which the appeal is taken a bond with sureties to be approved by the clerk in the amount of the assessment appealed from, conditioned that the appellant will pay any costs that may be awarded to the respondent and abide any judgment that may be rendered in the cause.

Source: SL 1881, ch 97, § 9; CL 1887, § 2024; RPolC 1903, § 2558; RC 1919, § 8752; SDC 1939, § 42.0208.

45-5-10. Appeal from assessment of damages--Limited to amount of damages--Jury trial.

Such an appeal shall bring before the court only the propriety of the amount of damages and shall be tried by a jury unless a trial by jury be waived as in other civil cases.

Source: SL 1881, ch 97, § 10; CL 1887, § 2025; RPolC 1903, § 2559; RC 1919, § 8753; SDC 1939, § 42.0209.

45-5-11. Bond pending appeal.

The prosecution of any appeal may not hinder, delay, or prevent the respondent from exercising all the rights and privileges mentioned in § 45-5-6, if the respondent files with the clerk of the court in which the appeal is pending a bond with sufficient sureties to be approved by the clerk in double the amount of the assessment appealed from, conditioned that the respondent will pay to the appellant whatever amount the appellant may recover in the action, not exceeding the amount of the bond.

Source: SL 1881, ch 97, § 11; CL 1887, § 2026; RPolC 1903, § 2560; RC 1919, § 8754; SDC 1939, § 42.0210; SL 2011, ch 165, § 189.

45-5-12. Costs of appeal.

If the appellant recovers fifty dollars more damages than the commissioners have awarded or if the respondent offers to allow judgment against the respondent to be taken, the respondent shall pay the costs of the appeal; otherwise the appellant shall pay the costs.

Source: SL 1881, ch 97, § 12; CL 1887, § 2027; RPolC 1903, § 2561; RC 1919, § 8755; SDC 1939, § 42.0211; SL 2011, ch 165, § 190.

45-5-13. Costs and expenses under chapter to be paid by party making application.

The costs and expenses under the provisions of this chapter, except as otherwise provided in this chapter, shall be paid by the party making the application.

Source: SL 1881, ch 97, § 13; CL 1887, § 2028; RPolC 1903, § 2562; RC 1919, § 8756; SDC 1939, § 42.0212; SL 2011, ch 165, § 191.

45-5-14. Costs and expenses if applicant tendered sum equal to or more than amount of damages assessed.

If the applicant, before the commencement of the proceeding, has tendered to the parties owning or occupying the lands or mining claims a sum equal to or more than the amount of damages assessed by the commissioners, all of the costs and expenses shall be paid by the party or parties owning the lands or claims affected by the right-of-way and who appeared and resisted the claim of the applicant.

Source: SL 1881, ch 97, § 13; CL 1887, § 2028; RPolC 1903, § 2562; RC 1919, § 8756; SDC 1939, § 42.0212; SL 2011, ch 165, § 192.