If an excavator is going to dig at a railroad crossing in SD and calls One Call to find out where underground utilities are, are the railroad company's underground lines (signal cables, fiber, gas lines) marked? Or are railroad companies exempt from One Call membership and the duty to mark, leaving the excavator to find railroad lines on their own?
Plain-English summary
SD has a One Call system (SDCL ch. 49-7A) for utility-locate notifications. The idea is simple: before you dig, you call One Call. One Call tells every utility operator with underground lines in the area. Each operator has 48 hours to come mark their lines so you don't cut through them.
The system has been a lifesaver (literally; cutting a gas line during excavation can kill people). It depends on every underground operator being a member and answering calls.
In 2010, SD One Call's Executive Director Larry Janes asked the AG whether railroad companies had to participate. Railroads have lots of underground stuff: signal cables, fiber-optic communication lines, sometimes gas or fuel lines, drainage. Most of that is along their right-of-way, but it crosses public roads at railroad crossings, and that's where the conflict shows up.
Railroads were taking the position that they were exempt under SDCL 49-7A-15, which says: "Underground facilities owned and operated by the landowner on his own land which does not extend beyond the boundary of the private property are not subject to the provisions of this chapter." The railroads said they were "landowners" of their right-of-way, so the exemption applied. Some railroads joined One Call voluntarily, but most did not, and excavators were cutting railroad lines at crossings because no one had marked them.
The AG's answer was: it depends. SDCL 49-7A-15 exempts a railroad company only when the railroad holds legal or fee title to the land where the underground facilities are located. Many railroads hold only an easement on their right-of-way; a third party owns the underlying fee. In those cases, the railroad is not the landowner under SDCL 49-7A-15 and has to join One Call like any other operator.
The reasoning relied on the uniform-definition rule in SDCL 2-14-4. The Legislature had defined "landowner" elsewhere in the code (e.g., SDCL 7-25A-1(7) defines "landowner" or "owner" as someone with legal title shown by register of deeds records). That definition applies in SDCL ch. 49-7A unless contrary intention plainly appears. No contrary intention appears, so "landowner" in SDCL 49-7A-15 means the legal-title holder.
The AG acknowledged the practical difficulty. SD law treats railway rights-of-way in different ways depending on the historical grant. Some railroads got fee title (often from federal land grants in the 1860s-1880s). Others got easements (often via condemnation or voluntary deed reservations). Determining which is which for any specific crossing can require title research or even litigation. The AG cited Swaby v. Northern Hills Regional Railroad Authority (2009), Tripp v. F & K Assam Family, LLC (2008), and Barney v. Burlington Northern Railroad Co. (1992) as cases where the SD Supreme Court had to sort out fee-title-versus-easement issues for railroad ROW.
The AG also noted that the SD Constitution declares railways "public highways" (art. XVII, § 15) and SDCL 49-16A-66 echoes that declaration. But the AG said that declaration doesn't change the underlying property status: a railway can be a public highway as a matter of constitutional/statutory framework while the railroad is still either a fee owner or an easement holder of the land. The constitutional declaration controls railroad regulation, not landowner status.
The bottom line: railroads were not blanket-exempt from One Call. The exemption applied parcel by parcel, depending on who owned the fee. Excavators couldn't assume the railroad's underground facilities at a particular crossing were marked or unmarked without doing the title research. And railroads couldn't refuse to join One Call as a blanket policy; they had to check each ROW segment.
Currency note
This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL ch. 49-7A has been amended in the years since 2010, and the case law on railroad ROW title may have developed further. The general framework (fee owner exempt, easement holder not exempt) is unlikely to have flipped, but check current statute and case law before relying on the exemption.
What the opinion meant at the time
For SD One Call and its members in 2010, the opinion meant excavators could not rely on One Call locates to capture all railroad facilities. The system would mark utility lines from member operators, but railroad lines might or might not be marked depending on the underlying title situation. Excavators at railroad crossings had to take extra precautions: contact the railroad directly, treat unmarked sub-grade areas as potentially containing live railroad facilities, and use protective excavation techniques like soft-digging.
For railroad companies, the opinion meant they could not maintain a blanket policy of non-membership. Each ROW segment had to be evaluated. Where the railroad held fee title, non-membership was permissible. Where the railroad held only an easement, the railroad had to join One Call and mark facilities like any other utility.
For excavators and construction contractors, the practical takeaway was: at railroad crossings, treat the area as One-Call-unreliable. The opinion meant that even with a proper 48-hour notice, the locate ticket might not flag railroad lines that were there. Hand-digging or hydrovac in the area of any anticipated railroad facility was prudent, and contacting the railroad's roadmaster or signal department directly was the only way to be sure.
For title attorneys representing railroads, the opinion created billable work. Railroads needed legal opinions on which ROW segments they held in fee and which they held by easement. That sometimes required walking deed records back to original federal land patents.
For local governments and SD DOT, the opinion meant railroad crossings remained a known risk area. Public projects at railroad crossings had to budget time and money for direct coordination with the railroad, not just for One Call locates.
Common questions
Q: What is the One Call system?
A: SD's underground utility locate notification system, codified at SDCL ch. 49-7A. Excavators call 811 (or another One Call number) before digging. One Call notifies utility operators in the area. Operators have 48 hours to mark their facilities so the excavator can dig safely.
Q: Who has to be a member of One Call?
A: Every operator of underground facilities in SD, with limited exceptions including SDCL 49-7A-15's landowner exemption.
Q: What is the landowner exemption?
A: SDCL 49-7A-15 exempts facilities owned and operated by a landowner on the landowner's own land, provided the facilities don't extend beyond the property boundary. The classic case is a homeowner's private water line from their well to their house.
Q: Why are railroads at the heart of this question?
A: Railroads have extensive underground facilities (signal cables, fiber, sometimes utility lines) along ROW that cross public roads at railroad crossings. Excavators on public road projects routinely encounter railroad facilities at crossings. Whether the railroad has marked or not determines whether excavators have notice.
Q: How does one tell if a railroad has fee title or just an easement at a specific crossing?
A: By examining the chain of title. Federal land grants from the 1860s-1880s often conveyed fee title to railroads. Later acquisitions by condemnation or purchase deed might be fee or easement depending on the instrument. A title search is typically required.
Q: What if the One Call locate doesn't mark the railroad's lines and the excavator cuts them?
A: Liability depends on which side the title falls. If the railroad is exempt as a fee-owner landowner, the excavator may bear the damage liability because the railroad had no statutory duty to mark. If the railroad is not exempt (because it holds only an easement) and failed to mark after timely One Call notice, the railroad may bear liability for failing to comply with SDCL ch. 49-7A.
Q: Is "public highway" status under SD Const. art. XVII § 15 relevant?
A: The opinion says no, that designation does not change the underlying property status for One Call purposes. The constitutional declaration regulates railroads; it does not convert easement-only railroad ROW into fee-owned land.
Q: Can a railroad voluntarily join One Call even if exempt?
A: Yes, many railroads have done so as a practical risk-management measure. The opinion notes that any railroad that is a member joined voluntarily.
Background and statutory framework
The One Call system in SD was enacted by the Legislature to reduce damage to underground utilities during excavation. The 1990s-2000s saw substantial expansion of the system, with industry consensus that mandatory locate notification was the most effective damage-prevention tool. SDCL ch. 49-7A codifies the framework: mandatory operator membership, mandatory excavator notice, locate marking within 48 hours, and civil liability for failures.
SDCL 49-7A-15's landowner exemption is the major exception. It exists because residential and farm-property owners typically have small private utility systems (well lines, sewer laterals, low-voltage wiring) that wouldn't justify the administrative burden of One Call membership. The exemption is keyed to the landowner relationship: the facility is owned and operated by the landowner on their own land and doesn't extend beyond the property boundary.
Railroads tried to fit themselves inside this exemption by claiming "landowner" status of their right-of-way. The 2010 AG had to decide whether that fit. The textual question came down to what "landowner" meant in SDCL 49-7A-15.
SDCL 2-14-4 is the uniform-definition rule: if a term is defined elsewhere in the SDCL, that definition applies unless contrary intention plainly appears. The Legislature has defined "landowner" in several places, with substantial uniformity. SDCL 7-25A-1(7) is typical: "any individual, firm, or corporation, public or private, or public agency, who has legal title to real property as shown by the records of the register of deeds of the county in which the real property is situated." That's a fee-title-based definition.
Applying that definition to SDCL 49-7A-15 meant a railroad is a "landowner" only when it holds legal fee title. Where the railroad holds only an easement (with a third party owning the underlying fee), the railroad is not a landowner; it's an operator with a property right but not the underlying land.
The case law confirmed that railroads in SD held different types of property interests in different ROW segments. Swaby v. Northern Hills Regional Railroad Authority (2009 S.D. 57) and Tripp v. F & K Assam Family, LLC (2008 S.D. 78, 755 N.W.2d 106) both involved ROW disputes where the court had to determine fee-versus-easement status. Barney v. Burlington Northern Railroad Co. (490 N.W.2d 726 (S.D. 1992)) was an earlier major case on the same theme.
The AG's parcel-by-parcel approach respected the variable property-rights reality. A railroad operating a 100-mile line in SD might hold fee title for 60 miles, easements for 30 miles, and grants of conflicting interpretations for the remaining 10. Treating the whole railroad as either exempt or not exempt would have over- or under-shot reality. Treating each ROW segment by its actual title was correct, even though it pushed the analytical burden onto title research.
The constitutional argument the AG also addressed was whether SD Const. art. XVII § 15 (declaring railways "public highways") and SDCL 49-16A-66 (echoing that declaration) changed the property analysis. The AG said no: those provisions regulate railroads as enterprises but do not transform easement ROW into fee ROW. A railroad's underground signal cable could be on land the railroad owns in fee (exempt) or on land it occupies under easement (not exempt), regardless of whether the railway above it is constitutionally a "public highway."
The AG concluded by noting the practical-implementation challenge. Determining who actually holds fee title at a specific crossing can require deed research and might end up in litigation. But the alternative (a blanket rule for or against railroads regardless of property status) wasn't supported by the statute. If the Legislature wanted to treat railroads differently, the AG said, that would require legislative action.
Citations and references
Statutes:
- SDCL ch. 49-7A (One Call system)
- SDCL 49-7A-15 (landowner exemption)
- SDCL 31-27-20 (railroad ROW definition)
- SDCL 31-27-21 (railroad crossing definition)
- SDCL 2-14-4 (uniform application of statutory definitions)
- SDCL 7-25A-1(7) (landowner/owner definition)
- SDCL 49-16A-66 (railways as public highways)
- S.D. Const. art. XVII, § 15
Cases:
- U.S. West Communication, Inc. v. Public Utilities Commission, 505 N.W.2d 115 (S.D. 1993)
- Swaby v. Northern Hills Regional Railroad Authority, 2009 S.D. 57
- Tripp v. F & K Assam Family, LLC, 2008 S.D. 78, 755 N.W.2d 106
- Barney v. Burlington Northern Railroad Co., 490 N.W.2d 726 (S.D. 1992)
Source
Original opinion text
STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
January 5, 2010
Larry Janes
South Dakota One Call
Executive Director
5536 Double Tree Road
Rapid City, SD 57702
OFFICIAL OPINION NO. 10-01
APPLICABILITY OF ONE CALL NOTIFICATION REQUIREMENTS TO RAILROADS
Dear Mr. Janes:
You have requested an official opinion from this Office regarding the following question:
QUESTION: Whether SDCL 49-7A-15 exempts railroad companies with underground facilities within a railroad crossing from the One Call system requirements of SDCL ch. 49-7A.
OPINION SUMMARY: SDCL 49-7A-15 exempts railroad companies when the railroad has legal or fee title to the land where its underground facilities are located.
FACTS: Through SDCL ch. 49-7A, the South Dakota Legislature has enacted what is referred to as the South Dakota One Call system ("System"). This chapter requires that all operators of underground facilities become members of the System. Member operators must notify the System of the location of their underground facilities. Before any excavation may begin, excavators are required to notify the System of their intent to excavate, and to provide the specific location of the planned excavation. The System then notifies all operators who potentially have underground facilities in the excavation area. The notified operators normally have forty-eight hours to mark the location of their underground facilities.
Excavators have an expectation that, if the System is notified of a proposed excavation within a highway right-of-way or street, all underground facilities in the area will be marked. This, however, is not true when the excavation concerns a railroad crossing, where a highway or street and a railroad right-of-way intersect. Railroad companies have underground facilities that are located along their railroad right-of-ways. These underground facilities generally continue through railroad crossing areas. There are numerous public and private railroad crossings which the public traverses, and where underground facilities of utilities and other entities are located. Notwithstanding a timely One Call contact, excavators on occasion find themselves cutting through a railroad's underground facilities within a railroad crossing because the railroad's facilities were not marked prior to excavation.
The railroad companies contend, notwithstanding the fact that their underground facilities are located within the area of a railroad crossing, that they are not required to become members of the System, or mark their underground facilities, because they are exempt under SDCL 49-7A-15. Excavators question whether railroad companies are truly exempt. Any railroad that is a member of the System has stated that it was done so voluntarily, as a means of reducing the cutting of its underground facilities during an excavation.
IN RE QUESTION:
Generally, SDCL ch. 49-7A requires any person who operates an underground facility to become a member of the System. Railroad companies fall within the definition of "person." Further, Article XVII section 15 of the South Dakota Constitution authorizes the Legislature to regulate railroads and railways. SDCL 49-7A-15, however, provides the following exemption for landowners:
Underground facilities owned and operated by the landowner on his own land which does not extend beyond the boundary of the private property are not subject to the provisions of this chapter.
In construing statutes, this office applies the rules of statutory construction applied by the South Dakota Supreme Court. In U.S. West Communication, Inc., v. Public Utilities Commission, 505 N.W.2d 115, 123 (S.D. 1993), the Court stated:
The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of the statute is determined from what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the Legislature did not intend an absurd or unreasonable result.
(Internal citations omitted).
Railroad crossing is defined in SDCL 31-27-21 as follows:
A "railroad or highway crossing" usually referred to as a 'railroad crossing,' shall include all that part of a public highway or private road extending from the point where it touches the property line of the right-of-way of the railroad company on one side until it passes over and beyond the railroad company's property line or right-of-way on the opposite side of the right-of-way.
Railroad right-of-way is defined in SDCL 31-27-20 as follows:
A "railroad right-of-way," consists not only of that strip of land, usually one hundred feet wide, over which the main track is laid but such adjacent extra width of land as may be necessary and useful for cuts, embankments, ditches for change of location of watercourses, and other works of a railroad, appropriate and necessary for railroad purposes.
"Landowner" is not defined in SDCL ch. 49-7A. In setting forth statutory rules of construction, the South Dakota Legislature, in SDCL 2-14-4, stated:
Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.
The Legislature has defined landowner in several statutes elsewhere in the code. These definitions appear to be fairly uniform. SDCL 7-25A-1(7) is typical and provides:
(7) "Landowner" or "owner," any individual, firm, or corporation, public or private, or public agency, who has legal title to real property as shown by the records of the register of deeds of the county in which the real property is situated;
Applying the above Supreme Court and statutory rules of construction to SDCL 49-7A-15, I conclude that the Legislature intended to exempt from SDCL ch. 49-7A underground facilities owned by any railroad company which has legal or fee title to the land where the underground facilities are located.
In reaching this conclusion, I am aware that SD Const. art. XVII § 15 declares railways as public highways. See also SDCL 49-16A-66. This declaration, however, doesn't change the legal status of the underlying property. Further, although the Legislature has enacted provisions that address railroad crossings, rights-of-way, and the respective rights, responsibilities and duties of railroads, local governing bodies and the Department of Transportation, there is no provision that changes the legal status of the underlying property.
This conclusion does not end discussion of your opinion request. The South Dakota Supreme Court has demonstrated in several decisions that railroad companies have legal fee title to some, but not all, lands upon which their rights-of-way and railways (and necessarily the associated railroad crossings) are located. See, Swaby v. Northern Hills Regional Railroad Authority, 2009 S.D. 57, __ N.W.2d ____; Tripp v. F & K Assam Family, LLC, 2008 S.D. 78, 755 N.W.2d 106; Barney v. Burlington Northern Railroad Co., 490 N.W.2d 726 (S.D. 1992).
As demonstrated above, SDCL 49-7A-15 requires different treatment for underground facilities within a railroad crossing dependent on whether the railroad is a fee owner of the land. It therefore is my opinion that when the railroad company holds fee title to the land where the railroad right-of-way is located, including any railroad crossing, it is not required to become a member of the System for its underground facilities. If, however, the railroad merely holds an easement on the right-of-way and a third party is the actual landowner, the railroad, like any other operator of underground facilities located within the easement, is required to become a member of the System and comply with all SDCL ch. 49-7A requirements.
I understand that there will be difficulty in applying the above opinion, as it may not be immediately known whether a railroad company is actually the "landowner" of the property located within the railroad crossing. Legal opinions or even court actions may be required to determine whether the railroad company is the landowner. Absent any legislative intent to treat railroad companies differently than any other landowner, however, such analysis must take place. If railroad companies are to be treated differently, it will require action of the Legislature.
Respectfully submitted,
Marty J. Jackley
Attorney General
oo_JPH_Larry Janes - SD One Call (br)