South Dakota Easement and Eminent Domain Laws (2026)

In South Dakota, a prescriptive easement takes twenty years of open, continued and unmolested use that was hostile or adverse to the owner, proved by clear and convincing evidence (Hamad Assam Corp. v. Novotny, 2007 SD 84). On eminent domain, SDCL 11-7-22.1 (2006) bars counties, municipalities and housing and redevelopment commissions acting under chapter 11-7 from condemning property for transfer to a private party or primarily to raise tax revenue, and a 2025 law, SDCL 49-7-13.1, bars anyone from using eminent domain for a pipeline whose preponderant purpose is transporting carbon oxide.

This page covers easements between private landowners first, then the power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers South Dakota law on private easements (SDCL chapters 43-13, 43-25, 43-28 and 15-3, the county highway petition in chapter 31-3, section-line highways in chapter 31-18, and South Dakota Supreme Court decisions) and on condemnation of private property (S.D. Const. art. VI, s. 13 and art. XVII, s. 18, SDCL chapters 21-35, 31-19 and 11-7, and SDCL 49-7-13.1). It does not cover adverse possession of title, which is on our South Dakota squatters rights page, HOA covenants, zoning or regulatory takings, federal condemnation, or local ordinances.

Easements in South Dakota: The Basics

SDCL 43-13-2 lists the land burdens that "may be attached to other land as incidents or appurtenances, and are called easements." The list includes "the right of way" and conservation-type rights: "(17) The right of preserving land areas for public recreation, education, or scenic enjoyment; (18) The right of preserving historically important land area or structures; (19) The right of preserving natural environmental systems."

Conservation easements held by a government body or a qualifying charitable organization are governed by SDCL 1-19B-56 to 1-19B-60. Such an easement "may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements," its term "shall be established by the parties to the easement," and no right or duty arises for the holder until it accepts the easement and records the acceptance (SDCL 1-19B-57).

How far an easement reaches depends on how it was created. Under SDCL 43-13-5, "The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." A written easement is read by its terms; an easement gained by long use is measured by the use that created it.

If an easement is obstructed, "The owner of any estate in a dominant tenement, or the occupant of such tenement, may maintain an action for the enforcement of an easement attached thereto" (SDCL 43-13-9). Chapter 43-13 contains no section allocating maintenance costs or allowing either owner to relocate an easement.

Express easements: writing and recording

South Dakota's general rule on transferring interests in land, SDCL 43-25-1, provides that "An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing."

On recording, SDCL 43-28-14 states that "An unrecorded instrument is valid as between the parties thereto and those who have notice thereof." To find recorded easements on a parcel, see our South Dakota property records guide.

Wind and solar easements

A wind or solar easement must be in writing and recorded with the county register of deeds. Its term "may not exceed fifty years," it is "void if no development of the potential to produce energy from wind power or solar power associated with the easement has occurred within five years after the effective date of the easement," and payments are made annually to the owner of record (SDCL 43-13-17). The five-year period can be extended to a maximum of twelve years only for a wind developer that files the sworn affidavit described in SDCL 43-13-20.1.

No such easement or lease may be signed "until at least ten business days after the first proposed easement or lease has been delivered to the property owner" (SDCL 43-13-20.4). A developer may not require the owner to keep negotiations or proposed terms confidential, though the parties may agree to mutual confidentiality in the final agreement or a separate document (SDCL 43-13-20.5).

Prescriptive Easements in South Dakota

A prescriptive easement is a right to keep using a path or road that grows out of long, adverse use. No South Dakota statute sets a period for it: chapter 43-13 (servitudes) and chapter 15-3 (actions to recover real property) contain no easement-specific prescription section. The twenty-year period comes from the South Dakota Supreme Court, which stated in Hamad Assam Corp. v. Novotny, 2007 SD 84:

"To establish a prescriptive easement, Assam must prove by clear and convincing evidence an 'open, continued, and unmolested use' of the pathway across the Novotny land for twenty years and that the use was in a manner that was hostile or adverse to Novotny."

The twenty years lines up with SDCL 15-3-1, under which no action to recover real property "shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action." For how limitation periods work generally, see our South Dakota statute of limitations guide.

The presumption of adverse use, and how permission rebuts it

The court in Hamad Assam explained that "A prima facie case for a prescriptive easement is established and a presumption that such use is adverse and under a claim of right arises when a party shows 'an open and continuous use of another's land with the owner's knowledge. . . .'"

That presumption can be answered. In Thompson v. E.I.G. Palace Mall, LLC, 2003 SD 12, the South Dakota Supreme Court stated that "the presumption of a prescriptive right may be rebutted by proof that the use was by permission or not under a claim of right."

The presumption also has a limit on undeveloped land. In a footnote in Hamad Assam, relying on its 2005 decision in Rancour v. Golden Reward Mining, the court said that "where land is wild, unimproved, and unenclosed, the uninterrupted use of the land for the statutorily prescribed period does not raise a presumption that the use is adverse."

Preventing a prescriptive easement

Chapters 43-13 and 15-3 contain no procedure for posting a sign or recording a notice to stop a prescriptive easement from forming. In South Dakota the defense comes from the cases: use that was by permission, or not under a claim of right, rebuts the presumption of adversity (Thompson).

Prescriptive easements compared with adverse possession

Adverse possession of title follows separate rules, including a 10-year track under SDCL 15-3-15 for a person in actual possession "under claim and color of title made in good faith" who has also "paid all taxes legally assessed" during those ten years. Those title rules are covered on our South Dakota squatters rights and adverse possession page.

Landlocked Property: Easements by Necessity and Implied Easements

South Dakota has no statute that lets a landlocked owner condemn a private right-of-way across a neighbor's land: chapters 31-3 (highways), 21-35 (eminent domain procedure) and 43-13 (servitudes) contain no such procedure. Routes that do exist include a common-law easement by necessity, a county highway petition and, where the parcel touches a section line, the statutory section-line highway. Under SDCL 31-18-1, "There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal." A section-line highway is sixty-six feet wide, taken equally from each side of the line, unless changed as Title 31 provides (SDCL 31-18-2).

Easement by necessity

In Springer v. Cahoy, 2012 SD 32, the South Dakota Supreme Court restated that "The common law recognizes two types of implied easements: easements by necessity and easements implied from prior use." The court described the easement by necessity in Thompson (2003):

"An easement by necessity can occur when a grantor conveys to another an inner portion of land surrounded by lands owned by the grantor or the grantor and others. Unless a contrary intent is manifest, the landlocked grantee will be entitled to have a right-of-way across the retained land of the grantor for ingress and egress."

Thompson added that "the party claiming the existence of an implied easement must show that it is necessary, though the requisite degree of necessity is not as high when an easement by prior use is sought."

Easement implied from prior use

Springer v. Cahoy, quoting the court's earlier decisions, lists four elements for an easement implied from prior use: "(1) the relevant parcels of land had been in unitary ownership; (2) the use giving rise to the easement was in existence at the time of the conveyance dividing ownership of the property; (3) the use had been so long continued and so obvious as to show that it was meant to be permanent; and (4) at the time of the severance, the easement was necessary for the proper and reasonable enjoyment of the dominant tract."

The Springer court, quoting a North Dakota Supreme Court decision, applied the rule that "A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence."

County highway petition for a short road

The statutory route opens a public road, not a private driveway. Under SDCL 31-3-23:

"If a public highway proposed to be located is not more than one mile in length, the board of county commissioners shall proceed as provided in §§ 31-3-28 to 31-3-37, inclusive. However, the petition for the highway may be by but one or more petitioners and the board of county commissioners shall require the petitioner or petitioners for the highway to pay the damages assessed for the location of the highway."

An appeal from the board's decision must be taken "within thirty days after the date on which the decision of the board has become effective" (SDCL 31-3-34).

Public roads by use need repair, not just travel

A route can become a public highway when it is "used, worked, and kept in repair as a public highway continuously for twenty years" (SDCL 31-3-1). Travel alone does not do it: SDCL 31-3-2 provides that "the mere use by the public of any route of travel along or across public or private land, or the right-of-way of any railroad company for any period, shall not operate to establish a public highway and no right shall inure to the public or any person by such use thereof."

How an Easement Ends in South Dakota

Chapter 43-13 sets out several ways a servitude ends:

• Merger, with a 2025 exception. SDCL 43-13-6 keeps the rule that a servitude ends when the right and the burdened land vest in one person, "Except as provided in § 43-13-6.1." That section, added in 2025, provides: "An easement or servitude created by an owner is valid and effective, notwithstanding the common ownership of the benefited and burdened property, at the time of creation or after reacquisition of the property by the creator of the easement or servitude."
• An incompatible act. "A servitude is extinguished by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise" (SDCL 43-13-12).
• Disuse, for easements gained by use. "A servitude acquired by enjoyment is extinguished by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment" (SDCL 43-13-13). By its words, this rule addresses servitudes acquired by enjoyment.
• Destruction of the burdened land. "A servitude is extinguished by the destruction of the servient tenement" (SDCL 43-13-11).

Carbon pipeline easements

Voluntary easements for carbon pipelines carry their own limits under SDCL 43-13-27, added in 2024. The term "may not exceed ninety-nine years." The easement "is void if the operator does not initiate business operations within five years after the recording date of the easement," and it "shall expire after five years of nonuse at any time after the issuance of a permit by the Public Utilities Commission."

Eminent Domain in South Dakota

Eminent domain is the power to take private property for public use with compensation. For the federal rules and every state's approach, see our guide to eminent domain laws by state.

South Dakota's takings clause, S.D. Const. art. VI, s. 13, covers property that is damaged as well as property that is taken:

"Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the Legislature and according to § 6 of this article. No benefit which may accrue to the owner as the result of an improvement made by any private corporation shall be considered in fixing the compensation for property taken or damaged. The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken."

A second provision, S.D. Const. art. XVII, s. 18, requires "Municipal and other corporations and individuals invested with the privilege of taking private property for public use" to make just compensation for property "taken, injured or destroyed," which "shall be paid or secured before such taking, injury or destruction." It bars the Legislature from depriving anyone of an appeal from a preliminary assessment of damages, and on appeal the damages "shall, on the demand of either party, be determined by a jury as in other civil cases."

An owner whose property is taken or damaged without a condemnation case may sue in what South Dakota statutes call an inverse condemnation action. Under SDCL 21-1-13.1, a person entitled to recover damages "is entitled to recover interest thereon from the day that the loss or damage occurred," and prejudgment interest on damages in inverse condemnation actions "shall be at the Category A rate of interest as specified by § 54-3-16 on the day judgment is entered." Judgments in inverse condemnation actions carry interest at the Category A rate (SDCL 54-3-5.1).

Can South Dakota take property for private development?

In Kelo v. City of New London (2005), the U.S. Supreme Court held that because the city's plan served a public purpose, the takings satisfied the Fifth Amendment's public use requirement, and it added that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

South Dakota's response is a statute, not a constitutional amendment. SDCL 11-7-22.1, enacted in 2006, provides:

"No county, municipality, or housing and redevelopment commission, as provided for in this chapter, may acquire private property by use of eminent domain: (1) For transfer to any private person, nongovernmental entity, or other public-private business entity; or (2) Primarily for enhancement of tax revenue."

The bar names only those bodies acting under chapter 11-7, the planning and redevelopment chapter. It does not by its terms reach the state, utilities or other condemnors. A companion section, SDCL 11-7-22.2, provides that those bodies may not transfer a fee interest acquired "by the use or threat of eminent domain within seven years of acquisition" to a private person or entity "without first offering to sell such fee interest back to the person who originally owned the property, or such person's heirs or assigns, at current fair market value, whether the property has been improved or has remained unimproved during the interval, or at the original transfer value, whichever is less."

For highways, when the Department of Transportation or a county board determines that land taken by condemnation is no longer required for highway use, it adopts a resolution and "such lands shall revert to their former owner or his assigns." Where the department sells land it no longer needs, "an abutting landowner shall have the first opportunity to purchase any right-of-way to the center of the right-of-way at its appraised value" (SDCL 31-19-60).

The constitutional text quoted above contains no economic-development limit. In 2026, House Joint Resolution 5001 proposed a constitutional amendment "requiring a declaration of necessity and clarifying public use of private property taken or damaged by eminent domain." It passed the House 62-5 on January 27, 2026, but failed in the Senate 14-19 on March 2, 2026, so the proposal did not go to voters.

Carbon dioxide pipelines

SDCL 49-7-13.1, enacted in 2025 as House Bill 1052, provides: "Notwithstanding the provisions of any other law, a person may not exercise the right of eminent domain to acquire right-of-way for, construct, or operate a pipeline for the preponderant purpose of transporting carbon oxide." The bar applies to condemnation; a landowner may still grant a carbon pipeline easement voluntarily, subject to the limits in SDCL 43-13-27 described above.

Who else may condemn

Pipelines that are common carriers may use eminent domain to acquire right-of-way (SDCL 49-7-13); the 2025 law removes that power for carbon oxide pipelines. Other statutes give the power to private parties. Any person may condemn property needed to put water to beneficial use (SDCL 46-8-1), though such a route may not run within 250 feet of a dwelling house or other buildings, or across a noncommercial orchard or garden, without the owner's written consent (SDCL 46-8-1.2).

The owner of a mine that cannot conveniently be worked without a road, ditch, flume, shaft or tunnel across others' land is entitled to a right-of-way on compliance with chapter 45-5 (SDCL 45-5-1). Electric cooperatives hold the power (SDCL 47-21-67), and a railroad may condemn right-of-way only with authority from the Governor or the commission (SDCL 49-16A-75).

Electric transmission lines

Under SDCL 21-35-1.1, a utility building a transmission line that has a permit under chapter 49-41B "and approval by legislative enactment as required pursuant to § 49-41B-4.1" is entitled to eminent domain under chapter 21-35. The legislative approval requirement in SDCL 49-41B-4.1 applies to a "trans-state transmission facility."

In condemnations for a trans-state transmission facility, an owner may require the utility to take a fee interest in contiguous land outside the right-of-way by electing in writing "within sixty days of receipt of the notice of filing of a petition pursuant to § 21-35-1." No land more than one-half mile from the line's center line may be taken, and the utility must divest land used or capable of being used for farming within five years (SDCL 49-41B-4.4).

Condemnation Procedure and Deadlines

Who sets compensation

Under SDCL 21-35-1, any person, group or corporation, public or private, with the power to take or damage private property for public use "shall file a petition in the circuit court for the county in which the property to be taken or damaged is situated, praying that the just compensation to be made for such property may be ascertained by a jury."

The thirty-day deadline to challenge the taking

A key deadline for an owner is in SDCL 21-35-10.1:

"Within thirty days from the date the summons described in § 21-35-9 is served, the defendant may demand a hearing in circuit court on the petitioner's right to take. Failure to make such demand or to consent in writing to the taking, within the thirty-day period, shall constitute a waiver of the right to question the necessity of the taking. The finding of necessity by the plaintiff, unless based upon fraud, bad faith, or an abuse of discretion, shall be binding on all persons."

In plain terms, an owner who does not demand that hearing within thirty days of service loses the ability to question whether the taking is necessary, and even a timely challenge must show fraud, bad faith or an abuse of discretion to overcome the condemnor's finding.

Offers and costs

Chapter 21-35 makes the written offer optional: the condemnor "may" serve one with the summons (SDCL 21-35-11). The petition's verification must state "that the proceeding is in good faith for the purposes specified in the petition" (SDCL 21-35-4), and the parties may agree to mediation (SDCL 21-35-11.1). Chapters 21-35 and 31-19 contain no section requiring a pre-suit appraisal or written offer, reimbursing an owner's own appraisal, or adding a percentage for homes. A detailed appraisal is required with a declaration of taking (SDCL 21-35-24, 31-19-23).

SDCL 21-35-11 sets a ten-day window for accepting an offer that is served. If the owner does not file a notice of acceptance with the clerk "within ten days after service of the offer upon him, it is deemed to be withdrawn, and cannot be given in evidence; and if the defendant fails to obtain a judgment for a greater sum of money than offered by the plaintiff, he cannot recover costs, and each party shall pay his own costs."

Benefits from the improvement

When a municipal corporation takes or damages property, "the jury shall take into consideration the benefits which may accrue to the owner thereof as the result of the proposed improvement" (SDCL 21-35-17). For improvements by a private corporation, the constitution provides that no such benefit "shall be considered in fixing the compensation" (S.D. Const. art. VI, s. 13). In highway condemnations under chapter 31-19, the jury considers benefits "In all cases of taking or damaging property" (SDCL 31-19-17).

Appeals

Appeals go to the South Dakota Supreme Court "the same as in other civil actions, but the prosecution of such an appeal shall not prevent or delay the work or improvement involved," provided the condemnor deposits the amount of the verdict with the clerk and gives the appellant a bond, set by the court, to secure any additional sum awarded later (SDCL 21-35-20).

Declaration of taking

Chapter 21-35's declaration-of-taking procedure is narrow. SDCL 21-35-24 allows one in proceedings against electric utilities, gas utilities or railroads "when those proceedings are for the purpose of constructing pipelines designed to carry water for the transportation of coal." Outside that situation, a chapter 21-35 case begins with the petition for a jury under SDCL 21-35-1.

Highway and street quick-take

The Department of Transportation, and a municipality acquiring land for streets or roadways, may file a declaration of taking under SDCL 31-19-23, which must include the estimated just compensation and "A detailed appraisal upon which the amount of the state's or municipality's deposit is based." The condemnor must deposit that money with the court (SDCL 31-19-28), and the court may order "one hundred percent of the money deposited" paid out on account of compensation (SDCL 31-19-29).

In these cases the thirty-day window to demand a necessity hearing runs from service of the summons or of the declaration of taking, and missing it, without written consent, waives the right to question necessity (SDCL 31-19-10.1). The judgment carries interest at the Category A rate on the amount awarded as of the date of the deposit, but not on money already paid into court (SDCL 31-19-33), and the proceeding "may not be abandoned after filing of declaration of taking" (SDCL 31-19-35).

Entry to examine or survey

SDCL 21-35-31, amended in 2026 (Senate Bill 88), governs entry when an owner refuses permission for an examination or survey on a project needing a siting permit. If the owner denies permission, "the person may conduct only an examination" and must have "a pending or approved siting permit application with the Public Utilities Commission of the State of South Dakota pursuant to § 49-41B-11" and provide the owner "thirty days' written notice," and must pay the owner, or provide sufficient security, "for any actual damage done to the property by the entry." On written request, the owner "is entitled to a copy of the results of any survey or examination conducted pursuant to this section." The owner "may challenge the proposed examination or survey by commencing an action in circuit court in the county where the examination or survey is proposed, within thirty days of service of the written notice." The section does not apply to the state or its political subdivisions.

Attorney Fees, Costs and Relocation

When the award beats the final offer

SDCL 21-35-23 provides:

"If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff's final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court."

The comparison is with the condemnor's final offer filed when trial begins, not an earlier offer, and both conditions must be met.

When the case is dismissed

If eminent domain proceedings "are thereafter dismissed with or without prejudice, the plaintiff seeking to be condemnor is liable for and shall pay to the defendant all court costs, expenses and fees, including reasonable attorney fees, as are determined by the court having jurisdiction over the proceedings" (SDCL 21-35-22).

Relocation assistance

South Dakota's relocation statutes are permissive. Under SDCL 5-2-18, the state and its political subdivisions "may provide relocation benefits and assistance to persons, businesses, and farm operations displaced as the result of the acquisition of land or rehabilitation or demolition of structures in connection with federally assisted projects to the same extent and for the same purposes as provided for in the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970" as amended, and they "may comply with all the acquisition policies contained in said federal act." For highway acquisitions, the Department of Transportation and counties may match federal relocation funds, or pay assistance when federal funds are not available, up to what would have been payable with federal funds (SDCL 31-19-49, 31-19-49.1). Municipalities may make relocation payments to persons displaced from an urban renewal area (SDCL 11-8-26).

Under that federal act, a state agency receiving federal financial assistance must give assurances that "in acquiring real property it will be guided, to the greatest extent practicable under State law, by the land acquisition policies" in 42 U.S.C. 4651 (42 U.S.C. 4655(a)).

Owner Deadlines and Traps in South Dakota

Recent Changes to South Dakota Easement and Eminent Domain Law

• November 5, 2024: Voters rejected SL 2024, ch. 189 (Senate Bill 201, Referred Law 21), an act to "provide new statutory requirements for regulating linear transmission facilities, to allow counties to impose a surcharge on certain pipeline companies, and to establish a landowner bill of rights." Its new sections, such as SDCL 49-41B-40, read "Rejected by referendum," and its amendments to other sections did not take effect.

• 2025, House Bill 1052 (SL 2025, ch. 190), signed March 6, 2025, effective July 1, 2025: created SDCL 49-7-13.1, barring eminent domain for pipelines whose preponderant purpose is transporting carbon oxide.

• 2025, Senate Bill 215 (SL 2025, ch. 182), signed March 26, 2025, effective July 1, 2025: added SDCL 43-13-6.1, so an easement an owner creates is valid despite common ownership of both parcels.

• 2026, Senate Bill 88 (SL 2026, ch. 95), signed March 11, 2026, effective July 1, 2026: amended SDCL 21-35-31 to limit entry over an owner's refusal to an examination only and removed the former one-time $500 entry payment for common-carrier projects.

• March 2, 2026: House Joint Resolution 5001, a proposed constitutional amendment on eminent domain, failed in the Senate 14-19.

None of these 2025 and 2026 acts names its own effective date, so each took effect on July 1 after passage under SDCL 2-14-16.

South Dakota Easement and Eminent Domain Rules at a Glance

Related South Dakota Property Guides

• Easement laws by state
• Eminent domain laws by state
• South Dakota squatters rights and adverse possession
• South Dakota property records
• South Dakota statute of limitations

Disclaimer: This article provides general legal information about South Dakota easement and eminent domain law as of 2026-10-20. It is not legal advice. For advice about a specific property or condemnation case, contact a lawyer licensed in South Dakota.

Last updated: 2026-10-20.

Frequently Asked Questions

How long does it take to get a prescriptive easement in South Dakota?

Twenty years. The South Dakota Supreme Court requires clear and convincing proof of open, continued and unmolested use for twenty years in a manner that was hostile or adverse to the owner (Hamad Assam Corp. v. Novotny, 2007 SD 84). The period comes from the cases; no easement statute sets it.

What can I do if my land is landlocked in South Dakota?

South Dakota courts recognize an easement by necessity when a grantor conveys an inner portion of land surrounded by the grantor's land; unless a contrary intent is manifest, the landlocked grantee is entitled to a right-of-way across the grantor's retained land (Thompson v. E.I.G. Palace Mall, 2003 SD 12). Separately, one or more petitioners may ask the county commissioners to lay out a public highway of not more than one mile and must pay the damages assessed (SDCL 31-3-23). Where the land borders a section line that has not been vacated or relocated, a public highway exists along that line by operation of law (SDCL 31-18-1).

How do I stop someone from getting a prescriptive easement in South Dakota?

Chapters 43-13 and 15-3 of the South Dakota Codified Laws contain no posting or recorded-notice procedure for blocking prescription. The South Dakota Supreme Court has held that the presumption of a prescriptive right may be rebutted by proof that the use was by permission or not under a claim of right (Thompson v. E.I.G. Palace Mall, 2003 SD 12).

How does an easement end in South Dakota?

Among the ways listed in SDCL chapter 43-13, a servitude ends when the burdened land is destroyed (43-13-11), when the owner of the servitude, or someone with the owner's assent, does an act on either parcel that is incompatible with it (43-13-12), and a servitude acquired by enjoyment ends by disuse for the period prescribed for acquiring it (43-13-13). The merger rule in 43-13-6 is subject to a 2025 exception for easements an owner creates over the owner's own land (43-13-6.1).

Can South Dakota take private property for a private developer?

SDCL 11-7-22.1 bars counties, municipalities and housing and redevelopment commissions, as provided for in chapter 11-7, from taking private property by eminent domain for transfer to a private person or entity, or primarily to enhance tax revenue. The statute names only those bodies, the state constitution contains no such bar, and a 2026 proposal to amend the constitution (HJR 5001) failed in the Senate.

Can a carbon dioxide pipeline use eminent domain in South Dakota?

No. SDCL 49-7-13.1, enacted in 2025, provides that a person may not exercise the right of eminent domain to acquire right-of-way for, construct, or operate a pipeline for the preponderant purpose of transporting carbon oxide. Voluntary carbon pipeline easements are still possible and are limited by SDCL 43-13-27.

How long do I have to challenge an eminent domain taking in South Dakota?

Under SDCL 21-35-10.1, the owner may demand a hearing in circuit court on the right to take within thirty days after the summons is served. In Department of Transportation takings and municipal street takings, the thirty days run from service of the summons or of the declaration of taking (SDCL 31-19-10.1). Failing to demand it, or to consent in writing, within that period waives the right to question the necessity of the taking, and the condemnor's finding of necessity binds everyone unless based on fraud, bad faith or an abuse of discretion.

Does South Dakota pay attorney fees in eminent domain cases?

In proceedings under chapter 21-35, the court must allow reasonable attorney fees and compensation for up to two expert witnesses when the final award is twenty percent greater than the condemnor's final offer filed at the start of trial and the total award exceeds $700 (SDCL 21-35-23). If the condemnation case is dismissed, with or without prejudice, the condemnor must pay the owner's court costs, expenses and reasonable attorney fees (SDCL 21-35-22).