Title 43 — PROPERTY

The following land burdens, or servitudes upon land, may be granted and held, though not attached to land: (1) The right to pasture, and of fishing and taking game; (2) The right of a seat in church; (3) The right of burial; (4) The right of taking rents and tolls; (5) The right …

The owner in fee of a servient tenement may maintain an action for the possession of the land, against anyone unlawfully possessed thereof, though a servitude exists thereon in favor of the public. Source: CivC 1877, § 253; CL 1887, § 2769; RCivC 1903, § 276; RC 1919, § 346; SDC …

A servitude is extinguished by the destruction of the servient tenement. Source: CivC 1877, § 254, subdiv 2; CL 1887, § 2770, subdiv 2; RCivC 1903, § 277, subdiv 2; RC 1919, § 347 (2); SDC 1939, § 51.0609 (2).

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. Source: CivC 1877, § 254, subdiv 3; CL 1887, § 2770, subdiv 3; RCivC 1903, § 277, subdiv 3; RC 191…

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. Source: CivC 1877, § 254, subdiv 4; CL 1887, § 2770, subdiv 4; RCivC 1903, § 277, subdiv 4; RC 1919, § 347 (4); SDC 1939, …

For purposes of §§ 43-13-17 to 43-13-20.5 , inclusive, the term, wind easement, means a right, whether or not stated in the form of a restriction, option to obtain an easement, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of an…

For purposes of §§ 43-13-17 to 43-13-20.5 , inclusive, the term, solar easement, means a right, whether or not stated in the form of a restriction, option to obtain an easement, easement, covenant, or condition, in any deed, will, or other instrument executed by or on behalf of a…

Any property owner may grant a wind or solar easement in the same manner and with the same effect as a conveyance of an interest in real property. The easement shall be created in writing, and the easement or a memorandum thereof shall be filed, duly recorded, and indexed in the …

Any deed, will, or other instrument that creates a wind or solar easement shall include: (1) A description of the real property subject to the easement and a description of the real property benefiting from the wind or solar easement; (2) A description of the vertical and horizon…

No interest in any resource located on a tract of land and associated with the production or potential production of energy from wind or solar power on the tract of land may be severed from the surface estate as defined in § 45-5A-3 , except that such rights may be leased for a p…

The following land burdens or servitudes upon land may be attached to other land as incidents or appurtenances, and are called easements: (1) The right of pasturage; (2) The right of fishing; (3) The right of taking game; (4) The right of way; (5) The right of taking water, wood,…

The holder of any wind or solar easement, wind or solar lease, or easement for essential services shall accommodate the reasonable development of another holder of any wind or solar easement, wind or solar lease, or easement for essential services except for competing developers …

The five-year development period specified in §§ 43-13-17 and 43-13-19 shall be extended to a maximum development period of twelve years only for a wind developer that files a sworn affidavit with the Public Utilities Commission. The affidavit is for informational purposes only a…

For purposes of §§ 43-13-17 to 43-13-20.5 , inclusive, development of the potential to produce energy from wind power associated with the wind easement or wind lease occurs when the foundation is poured for the first wind turbine to be installed on any property that is part of an…

In addition to any other requirements of law, the filing required pursuant to § 43-13-17 shall include: (1) The names and addresses of the parties; (2) A legal description of the real property involved; (3) Description of property rights conveyed; (4) Term of the wind or solar ea…

No wind or solar easement or wind or solar lease may be executed by the parties until at least ten business days after the first proposed easement or lease has been delivered to the property owner. Source: SL 2010, ch 213 , § 6; SL 2017, ch 188 , § 9.

No wind or solar developer may require a property owner to maintain the confidentiality of any negotiations or terms of any proposed easement or lease except that the parties may agree to a mutual confidentiality agreement in the final executed wind or solar easement, wind or sol…

For the purposes of §§ 43-13-22 to 43-13-24 , inclusive, the term, small wind energy system, means any system of one or more wind turbines where the height of each wind turbine tower is less than seventy-five feet. Source: SL 2009, ch 221 , § 1.

For the purposes of §§ 43-13-21 to 43-13-24 , inclusive, the term, large wind energy system, means any system of one or more wind turbines not included in the definition of a small wind energy system. Source: SL 2009, ch 221 , § 2.

Each wind turbine tower of a small wind energy system shall be set back at least 1.1 times the height of the tower from any surrounding property line. However, if the owner of the wind turbine tower has a written agreement with an adjacent land owner allowing the placement of the…

Each wind turbine tower of a large wind energy system shall be set back at least five hundred feet or 1.1 times the height of the tower, whichever distance is greater, from any surrounding property line. However, if the owner of the wind turbine tower has a written agreement with…

A farm tap easement is an easement for the location, construction, operation or maintenance of a pipeline which includes, as part of the consideration for the easement, the provision of natural gas to and for the use of the grantor through a direct connection to the pipeline. In …

For the purposes of § 43-13-27 , the term "carbon pipeline easement" means a right, whether or not stated in the form of a restriction, option to obtain an easement, easement, covenant, or condition, in a deed, will, or other instrument executed by or on behalf of an owner of lan…

(1) A property owner may grant a carbon pipeline easement in the same manner and with the same effect as a conveyance of an interest in real property. The easement must be created in writing, and the easement or a memorandum thereof must be filed, duly recorded, and indexed in th…

The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement. Source: CivC 1877, § 246; CL 1887, § 2762; RCivC 1903, § 269; RC 1919, § 339; SDC 1939, § 51.0603.

A servitude can be created only by one who has a vested estate in the servient tenement. Source: CivC 1877, § 247; CL 1887, § 2763; RCivC 1903, § 270; RC 1919, § 340; SDC 1939, § 51.0604.

The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. Source: CivC 1877, § 249; CL 1887, § 2765; RCivC 1903, § 272; RC 1919, § 342; SDC 1939, § 51.0604.

Except as provided in § 43-13-6.1 , a servitude on a servient tenement may not be held by the owner of the servient tenement. A servitude is extinguished by the vesting of the right to servitude and the right to the servient tenement in the same person. Source: CivC 1877, §§ 248,…

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. Source: SL 2025, ch 182 , …

In case of partition of the dominant tenement, the burden must be apportioned according to the division of the dominant tenement, but not in such a way as to increase the burden upon the servient tenement. Source: CivC 1877, § 250; CL 1887, § 2766; RCivC 1903, § 273; RC 1919, § 3…

The owner of a future estate in a dominant tenement may use easements attached thereto for the purpose of viewing waste, demanding rent, or removing an obstruction to the enjoyment of such easements, although such tenement is occupied by a tenant. Source: CivC 1877, § 251; CL 188…

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. Source: CivC 1877, § 252; CL 1887, § 2768; RCivC 1903, § 275; RC 1919, § 345; SDC 1939, § 51.0607.