Title 43, PROPERTY

The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it. Source: CivC 1877, § 265; CL 1887, § 2781; RCivC 1903, § 288; RC 1919, § 358; SDC 1939, § 51.0701.

Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction, on using ordinary care a…

An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown. Source: CivC 1877, § 267; CL 1887, § 2783; RCivC 1903, § 290; RC 1919, § 360; SDC 1939, § 51.0704.

Trees whose trunks stand wholly upon the land of one owner, belong exclusively to him, although their roots grow into the land of another. Trees whose trunks stand partly on the land of two or more coterminous owners belong to them in common. Source: CivC 1877, §§ 269, 270; CL 18…

Coterminous owners are mutually bound equally to maintain the boundaries and monuments between them. Source: CivC 1877, § 272; CL 1887, § 2788; RCivC 1903, § 295; RC 1919, § 365; SDC 1939, § 51.0711.

Any person who maliciously removes any monument of stone, wood, or other material, erected for the purpose of designating any point in the boundary of any lot or tract of land, is guilty of a Class 2 misdemeanor. Source: PenC 1877, § 709, subdiv 1; CL 1887, § 6900, subdiv 1; RPen…

Any person who maliciously defaces or alters the marks upon any tree, post, or other monument, made for the purpose of designating any point, course, or line in the boundary of any lot or tract of land, is guilty of a Class 2 misdemeanor. Source: PenC 1877, § 709, subdiv 2; CL 18…

Any person who maliciously cuts down or removes any tree upon which marks have been made for the purpose of designating any point, course, or line in the boundary of any lot or tract of land, with intent to destroy such marks, is guilty of a Class 2 misdemeanor. Source: PenC 1877…

The ownership of land below ordinary high - water mark, and of land below the water of a navigable lake or stream, is regulated by the laws of the United States or by such laws of the state as the Legislature may enact. Source: CivC 1877, § 169; CL 1887, § 2685; RCivC 1903, § 192…

If a river or stream, navigable or not navigable, carries away by sudden violence a considerable and distinguishable part of a bank and bears it to the opposite bank or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the own…

If a stream, navigable or not navigable, forms a new course, abandoning its ancient stream bed, the owners of the land newly occupied take by way of indemnity the ancient stream bed abandoned, each in proportion to the land of which he has been deprived. Source: CivC 1877, § 589;…

If a stream, navigable or not navigable, in forming itself a new arm, divides itself and surrounds land belonging to the owner of the shore and thereby forms an island, the island belongs to such owner. Source: CivC 1877, § 588; CL 1887, § 3211; RCivC 1903, § 904; RC 1919, § 502;…

An island or accumulation of land formed in a stream which is not navigable belongs to the owner of the shore on that side where the island or accumulation is formed, or if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line draw…

It shall be the duty of all owners of land acquired by reliction to cause the same to be apportioned and divided among the various owners entitled thereto and to have the same surveyed, marking each separate tract "Relicted lot No. ____," numbering consecutively, beginning with t…

In the event that any owner or owners of land acquired by reliction shall fail or neglect to comply with the provisions of § 43-17-14 within the time therein specified the supervisors of the township or townships, or trustees or city council or commissioners of the municipality w…

The circuit court may upon the trial of any action under § 43-17-15 ascertain and determine by its judgment the owners of the relicted land and cause the same to be surveyed and shall appoint three competent disinterested persons, one of whom shall be a competent surveyor, to div…

The commissioners appointed pursuant to § 43-17-16 shall make their report in writing, including an accurate plat and survey of such relicted land marking each separate tract "Relicted lot No. ____" numbered consecutively, beginning with the number "1," and file the same with the…

At the next succeeding term of such court or at any subsequent term to which the same may be continued, such action shall be brought on for final determination upon the report and survey of said commissioners and the court may adopt or modify the same so as to allow each owner su…

The court may adjudge the defendants who are owners of such land or any part thereof to pay the costs and disbursements of such action in such proportions as the court may deem just and equitable, including a reasonable amount for the survey, the fees of recording, and reasonable…

Unless the grant under which the land is held indicates a different intent, the owner of the upland, if it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low water mark. All navigable rivers and lakes are public highways within fifty feet land…

Terms used in §§ 43-17-21 to 43-17-26 , inclusive, unless the context otherwise requires, mean: (1) "Board," the Water Management Board created by § 1-41-15 and further defined in § 1-41-15 .4; (2) "Ordinary high water mark," the term as defined in decisions rendered by the court…

The Water Management Board shall establish, pursuant to § 43-17-28 and in accordance with the contested case provisions of chapter 1-26 , the ordinary high water mark and install benchmarks and may establish the ordinary low water mark on public lakes which are used for public pu…

In determining the ordinary high water mark, natural factors take precedence. Man - made influences, either those that have been constructed to lower the mark or those constructed to raise the mark, shall be disregarded unless the influences have been lawfully constructed or have…

To determine the ordinary high water mark and ordinary low water mark for a lake, the Water Management Board may on the application of any of the parties or on its own motion, physically investigate the site, confer with other state and local agencies having responsibilities in t…

The Water Management Board shall serve notice on all persons who can be identified with reasonable diligence and who own property which may be affected by a water mark determination, of the date of the hearing required by this chapter. Notice shall consist of service by first cla…

Any decision of the Water Management Board setting a high water mark or a low water mark prior to January 1, 1992, is hereby cured, legalized, and validated as fully as if the decision had been issued in full compliance with § 43-17-24 . If any person has any vested right in any …

The Water Management Board shall reconsider its establishment of water marks upon request, if the request is made within a period of sixty days following the publication of the order establishing the water marks, and if additional pertinent information or data is made available t…

Nothing in §§ 43-17-20 to 43-17-25 , inclusive, shall be construed to alter rights of ownership and use of any lands bordering upon navigable lakes or streams or those portions of such lands between ordinary high water mark and ordinary low water mark. Source: SL 1978, ch 305 , §…

The provisions of §§ 43-17-2 , 43-17-20 , 43-17-21 , and 43-17-28 to 43-17-30 , inclusive, do not affect any ordinary high or low water mark finally determined at law prior to March 2, 1985, the rights of ownership or use of any land bounded by an ordinary high or low water mark …

The Water Management Board shall determine any ordinary high or low water mark upon receiving a written request from an owner or lessee of real property riparian to a public lake, from twenty - five electors of the state or from a person seeking to develop, with approval by the D…

If any water level rises above the ordinary high water mark of a navigable lake, the right of the public to enjoyment of the entire lake may not be limited, except that access to the lake shall be by public right - of - way or by permission of the riparian landowner and is subjec…

Islands and accumulations of lands formed in the beds of streams which are navigable and in meandered lakes belong to the state, if there is no title or prescription to the contrary. Source: CivC 1877, § 586; CL 1887, § 3209; RCivC 1903, § 902; SL 1915, ch 228 ; RC 1919, § 500; S…

Nothing in §§ 43-17-2 , 43-17-20 , 43-17-21 , and 43-17-27 to 43-17-29 , inclusive, diminishes any power of the Department of Game, Fish and Parks to administer, control, or otherwise regulate any lands or interest in lands within its jurisdiction. Source: SL 1985, ch 337 , § 8.

The provisions of §§ 43-17-2 and 43-17-29 notwithstanding, any landowner may deny public access to his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water's edge and lies above the ordinary hig…

Any landowner may deny a state agency the use of his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water's edge and lies above the ordinary high water mark of a navigable lake that includes at …

If public access to taxable private lands is allowed by a state agency pursuant to § 43-17-32 , the agency shall identify and mark the affected property in a manner that is plainly visible and understandable to a user of the property. Source: SL 1989, ch 379 , § 5.

A stream, or portion of a stream, is navigable if it can support a vessel capable of carrying one or more persons throughout the period between the first of May to the thirtieth of September, inclusive, in two out of every ten years. A dry draw, as defined in § 46-1-6 , is not na…

Any person who owns any tract of agricultural land on both sides of a navigable stream may, individually, fence such tract, or any persons who collectively own any tract of agricultural land on both sides of a navigable steam may, collectively, fence such tract: (1) If livestock …

The Water Management Board shall promulgate rules pursuant to chapter 1-26 to establish criteria, standards, and requirements for appropriate gates, switchbacks, or other devices that permit safe use of the stream and passage of boats, canoes, or other vessels, pedestrians, and s…

A gate or opening constructed pursuant to § 43-17-36 is required in any fence that may be constructed across any of the following streams or portions of such streams: (1) Big Sioux River from the Grant-Codington County boundary to a point five miles north of the Missouri River in…

In all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both. Source: CivC 1877, § 266; CL 1887, § 2782; RCivC 1903, § 289; RC 1919, § 359; SDC 1939, § 51.0703.

The responsibility for construction and maintenance of any gate or opening required pursuant to §§ 43-17-35 and 43-17-36 in a fence across a stream that is navigable pursuant to § 43-17-34 shall be shared equally among those persons who caused the fence to be constructed. Any lia…

No cause of action may arise against the owners, tenants, or lessees of any real estate for any injury to any person or death resulting therefrom or damage to property of the person in connection with the fencing of agricultural land on both sides of navigable streams if such fen…

Where from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right - of - wa…

When any tract of accretion lands shall have been, or may hereafter be, surveyed and subdivided by a licensed surveyor and approved by the circuit court and the boundaries of the various riparian owners have been established and have remained uncontested for a period of six years…

Before commencing any such survey, the surveyor shall give ten days' notice, in writing by personal service upon all parties having an interest in such accretion lands, that each may be present at such survey if he so desires, and that no such survey shall be made without the wri…