Title 43, PROPERTY

The author of a power as the term is used in this chapter is the person by whom a power is created, whether by grant or devise; and the holder of a power is the person in whom the power is vested, whether by grant, devise, or reservation. Source: CivC 1877, § 299; CL 1887, § 2815…

With the exceptions contained in §§ 43-11-46 to 43-11-49 , inclusive, the intentions of the author of a power as to the mode, time, and conditions of its execution must be observed, subject to the power of a circuit court to supply a defective execution in the cases provided in §…

When the consent of a third person to the execution of a power is requisite, such consent must be expressed in the instrument by which the power is executed or be certified in writing thereon. In the first case the instrument of execution, in the second, the certificate, must be …

Where the consent of several persons to the execution of a power is requisite, all must consent thereto; but in case any one or more of them is dead, the consent of the survivors is sufficient, unless otherwise prescribed by the terms of the power. Source: CivC 1877, § 326; CL 18…

A disposition or charge by virtue of a power more extensive than was authorized thereby is not therefore void; but every estate or interest so created so far as it is embraced by the terms of the power, is valid. Source: CivC 1877, § 329; CL 1887, § 2845; RCivC 1903, § 352; RC 19…

The period during which the absolute right of alienation may be suspended by an instrument in execution of a power must be computed not from the date of the instrument but from the time of the creation of the power. Source: CivC 1877, § 330; CL 1887, § 2846; RCivC 1903, § 353; RC…

No estate or interest can be given or limited to any person by an instrument in execution of a power which could not have been given or limited at the time of the creation of the power. Source: CivC 1877, § 331; CL 1887, § 2847; RCivC 1903, § 354; RC 1919, § 422; SDC 1939, § 59.0…

Where the terms of a power import that the estate or fund is to be distributed among several persons designated in such manner or proportions as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons in exclusion of the other…

Where a disposition under a power is directed to be made to, among, or between several persons without any specification of the share or sum to be allotted to each, all the persons designated are entitled in equal proportions. Source: CivC 1877, § 352; CL 1887, § 2868; RCivC 1903…

If the trustee of a power, with the right of selection, dies, leaving the power unexecuted, its execution must be adjudged for the benefit equally of all the persons designated as objects of the trust. Source: CivC 1877, § 354; CL 1887, § 2870; RCivC 1903, § 377; RC 1919, § 444; …

Instruments in execution of a power are affected by fraud in the same manner as like instruments executed by owners or trustees. Source: CivC 1877, § 334; CL 1887, § 2850; RCivC 1903, § 357; RC 1919, § 425; SDC 1939, § 59.0438.

Powers are general or special and beneficial or in trust. Source: CivC 1877, § 300; CL 1887, § 2816; RCivC 1903, § 323; RC 1919, § 392; SDC 1939, § 59.0405.

Every instrument executed by the holder of a power conveying an estate or creating a charge which such holder would have no right to convey or create except by virtue of his power, is to be deemed a valid execution of the power, even though not recited or referred to therein. Sou…

Where the execution of a power in trust is defective in whole or in part under the provisions of this chapter, its proper execution may be adjudged in favor of the persons designated as the objects of the trust. Source: CivC 1877, § 357; CL 1887, § 2873; RCivC 1903, § 380; RC 191…

Purchasers for a valuable consideration, claiming under a defective execution of a power, are entitled to the same relief as similar purchasers claiming under a defective conveyance from an actual owner. Source: CivC 1877, § 333; CL 1887, § 2849; RCivC 1903, § 356; RC 1919, § 424…

Where a power in trust is created by will and the testator has omitted to designate, expressly or by necessary implication, by whom the power is to be executed, its execution devolves on the circuit court. Source: CivC 1877, § 355; CL 1887, § 2871; RCivC 1903, § 378; RC 1919, § 4…

The provisions of title 55, saving the rights of other persons from prejudice by the misconduct of trustees and authorizing the circuit court to remove and appoint trustees apply equally to powers in trust and the trustees of such powers. Source: CivC 1877, § 358; CL 1887, § 2874…

A power is general when it authorizes the alienation or encumbrance of a fee in the property embraced therein by grant, will, or charge, or any of them in favor of any person whatever. Source: CivC 1877, § 301; CL 1887, § 2817; RCivC 1903, § 324; RC 1919, § 393; SDC 1939, § 59.04…

A power is special: (1) When a person or class of persons is designated, to whom the disposition of property under the power is to be made; or (2) When it authorizes the alienation or encumbrance, by means of a grant, will, or charge, of only an estate less than a fee. Source: Ci…

A power is beneficial when no person other than its holder has by the terms of its creation any interest in its execution. Source: CivC 1877, § 303; CL 1887, § 2819; RCivC 1903, § 326; RC 1919, § 395; SDC 1939, § 59.0408.

Certain covenants contained in grants of estates in real property are appurtenant to such estates and pass with them so as to bind the assigns of the covenantor, and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such cov…

The only covenants which run with the land are: (1) Those made for the direct benefit of the property or some part of it, then in existence; (2) Covenants of warranty for quiet enjoyment or for further assurance, on the part of the grantor; (3) Covenants for the payment of rent o…

A covenant running with the land binds those only who acquire the whole estate of the covenantor in all or some part of the property. Source: CivC 1877, § 824; CL 1887, § 3448; RCivC 1903, § 1141; RC 1919, § 748; SDC 1939, § 51.0425.

A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns, or to th…

No one, merely by reason of having acquired an estate subject to a covenant running with the land, is liable for breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits. Source: CivC 1877, § 825; CL 1887, § 3449; RCivC …

Where several persons holding by several titles are subject to the burden or entitled to the benefit of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascerta…

A covenant running with the land may not prohibit, restrict, or have the effect of prohibiting or restricting: (1) The lawful possession, storage, or transportation of a firearm, any part of a firearm, or ammunition; or (2) The lawful discharge of a firearm. If a provision in a c…

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.