When a county or township highway intersects with a state trunk highway, whose money pays to maintain the connecting roadway surface that sits within the state's right-of-way? Does the prior history of the connecting roadway (private driveway, then county road) change the answer?
Plain-English summary
State Highway 44 in Pennington County runs east-west across SD, and the SD Department of Transportation maintains it. Teewinot Drive is a Pennington County secondary highway that intersects SD 44. The intersection sits within SD 44's right-of-way (the state corridor is 140-190 feet wide in that area, with the actual pavement centered).
The history of Teewinot Drive matters. The street was originally a private roadway built by a developer. The developer got an approach permit from DOT in 1988 to construct the connection to SD 44. Years later (2007), the Pennington County Board of Commissioners formally added Teewinot Drive to the county secondary highway system. From that point on, Teewinot Drive was a public county road that intersected the state-trunk SD 44.
The dispute was about who maintains the actual paved approach within SD 44's right-of-way. The County said it was DOT's because it was in the state corridor. DOT said it was the County's because the County had assumed the road. DOT had been doing the repairs and billing the County, but the County had not always paid, and the question went to the AG for resolution.
The 2012 AG, working through the relevant statutes (especially SDCL 31-24-9 as amended in 2010), said Pennington County must maintain the approach. The "second or intersecting public highway" is the one that pays. SD 44 had existed since 1951; Teewinot Drive was added to the county system years later. That made Teewinot Drive the intersecting (second-in-time) highway, so the County's responsibility.
The reasoning runs through the broader statutory framework. SDCL 31-2-21, 31-4-14, and 31-5-1 give DOT general responsibility for the state trunk highway system. SDCL 31-12-5 and 31-12-26 give counties responsibility for the county highway system and for non-municipal/non-township secondary highways. SDCL 31-13-1 gives townships responsibility for secondary roads within organized townships. But SDCL 31-24-9 is the specific rule for intersections: the intersecting highway's government provides and maintains the approach.
That specific-over-general rule controls. Even though SDCL 31-5-1 broadly says DOT maintains the state trunk highway system, SDCL 31-24-9 is the more specific provision for intersections, and the more specific rule wins. State v. Moschell and Estate of Smith both support that reading.
The 2012 AG also explained why the rule has to work that way. If DOT had to maintain whatever connecting pavement a county or township laid down, the local governments could unilaterally add maintenance burden to the state trunk highway system without legislative authorization. SD doctrine treats counties, townships, and cities as subordinate arms of the State with only the authority specifically given to them by the Legislature (Pennington County v. State). Local governments cannot expand state obligations by their own construction decisions. SDCL 31-24-9 is the legislative resolution of that boundary.
On the second question (whether the prior private-developer history changes anything), the answer was no. The statute looks at when the road became part of a state or local government system, not at any prior private ownership. Once Pennington County added Teewinot Drive to its system in 2007, the County became responsible for maintaining the connection to SD 44.
Currency note
This opinion was issued in 2012. 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 31-24-9 and the broader Title 31 highway framework should be checked directly. The general principle (intersecting/second highway pays for the approach within the first highway's right-of-way) has been a stable feature, but specific provisions may have changed.
What the opinion meant at the time
For Pennington County in 2012, the opinion put the maintenance obligation squarely on the County. The County had to accept DOT's bills for past repairs (where DOT had stepped in to do the work the County refused) and had to maintain the Teewinot Drive approach going forward.
For SD DOT engineers and maintenance staff statewide, the opinion provided a clean rule. When a county or township road intersects a state trunk highway and the local road came later (or was added to a local system after the state highway existed), the local government has to maintain the approach within the state's right-of-way. DOT could legitimately decline to maintain and could bill the local government for any maintenance DOT performed as a stopgap.
For county and township road managers, the opinion clarified a long-running ambiguity. The bright-line rule (second-in-time intersecting highway pays) eliminated case-by-case fights over each intersection. Counties and townships building new connections to state trunk highways knew they were taking on permanent maintenance responsibility for the approach.
For private developers extending roads to state trunk highways and then transferring the road to a county or township system, the opinion meant the eventual public-system maintenance burden landed on the local government, not on the state. Approach permits (under SDCL ch. 31-24's private-approach provisions) governed the initial construction; once the road became public, SDCL 31-24-9 controlled maintenance.
For municipalities over 2,500 population, the snow-removal rule in SDCL 31-4-5 is separate. Cities of that size still have to do snow removal on state trunk highways within their limits, but that is a specific statutory duty distinct from the intersecting-approach rule.
Common questions
Q: Who maintains the main traveled lanes of a state trunk highway?
A: SD DOT. Under SDCL 31-2-21, 31-4-14, and 31-5-1, DOT maintains the state trunk highway system. The dispute in this opinion is not about the main lanes; it is about the connecting approach where a side road joins the state highway.
Q: What is SDCL 31-24-9?
A: The statute that says the government in charge of an intersecting public highway must provide an "easy and accessible approach" at the intersection, at least 24 feet wide. The 2012 AG reads "provide" to include both construction and ongoing maintenance.
Q: Which highway is the "second" or "intersecting" highway?
A: The one that came later. If SD 44 existed since 1951 and Teewinot Drive was added to the county system in 2007, Teewinot Drive is the intersecting highway. If a state highway is added later to intersect an existing county road, the state highway becomes the intersecting one.
Q: What if both highways were built at the same time?
A: The opinion does not address that scenario. Most real-world cases have a clear time priority, but for simultaneously constructed intersections the governments may need to negotiate or seek legislative clarification.
Q: Does the prior private-developer history matter?
A: No. The statute looks at when the road became part of a state or local government system. Pre-public history (private driveways, developer roads) does not factor in.
Q: Why does the second/intersecting government pay?
A: Two reasons. First, the legislative text says they "provide" the approach, which includes maintenance. Second, the alternative reading would let local governments add maintenance obligations to the state trunk system without legislative authorization, which would conflict with SD's doctrine that local governments are subordinate arms of the State with only specifically granted authority.
Q: What if a county refuses to maintain?
A: SDCL 31-24-9 makes failure to provide an approach a petty offense. In practice, DOT may also do the maintenance and bill the local government for the cost, as DOT did with Teewinot Drive before the opinion.
Q: Does this apply to private approaches (driveways to private property)?
A: No. SDCL ch. 31-24 separately governs private approaches with its own permit and maintenance rules. The 2012 opinion is limited to public-highway intersections.
Q: Does the rule apply to municipal streets crossing state trunk highways?
A: Yes for the intersecting-approach rule. Plus SDCL 31-4-5 separately requires cities over 2,500 population to do snow removal on the state trunk highway within their limits.
Background and statutory framework
SD's highway system has four classifications under SDCL 31-1-4: (1) municipal streets and alleys; (2) the state trunk highway system; (3) the county highway system; and (4) all other roads (secondary highways). Each level of government has primary responsibility for its tier, with overlap addressed through specific statutes.
SD DOT runs the state trunk highway system under SDCL 31-2-21, 31-4-14, and 31-5-1. The Legislature has reserved unto itself the authority to designate the trunk system (SDCL 31-4-1, 31-4-4, 31-4-130 through 31-4-247), with DOT having limited authority to make changes. Counties cannot add to the trunk system on their own.
Counties run the county highway system through their county superintendent of highways (SDCL 31-12-5) and are responsible for secondary highways within the county not included in a municipality, organized township, road district, or improvement district (SDCL 31-12-26). Townships are responsible for secondary roads within organized townships (SDCL 31-13-1). Cities are responsible for streets and alleys within their jurisdictional limits.
The SD Supreme Court has refused to find overlapping jurisdiction across these classifications. Van Gerpen v. Gemmill (1948) and State ex rel. Jackley v. City of Colman (2010) both treat the legislative division of responsibilities as exclusive. One government's roads are that government's responsibility; another government cannot impose maintenance on it without statutory authority.
The intersection problem sits at the boundary between governments. When SD 44 (state) and Teewinot Drive (county) cross each other, the actual paved connection is physically within SD 44's right-of-way but is functionally part of Teewinot Drive's access to the larger network. Which government should pay for that physical pavement?
SDCL 31-24-9, as amended in 2010, resolves the question. The Township supervisors, county commissioners, DOT, or others "having direction of any highway grade" must provide "an easy and accessible approach to such grade on each side thereof upon each such intersecting public highway." The approach must be at least 24 feet wide. Failure to provide is a petty offense.
The AG's reading of "provide" to include maintenance fills the statutory gap. The text mentions construction explicitly but does not separately address maintenance. The AG argues that "provide" means "supply for use," and a non-maintained approach is not being supplied for use after a few years. The maintenance obligation flows from the providing obligation.
The structural argument reinforces the textual one. SD law treats counties, townships, and cities as subordinate arms of the State possessing only the authority specifically given by the Legislature (Pennington County v. State, 2002, citing S.D. Const. art. IX § 1). Local governments do not have inherent authority to add to the state trunk system. If the rule were that DOT must maintain whatever pavement intersects a state trunk highway, local governments could unilaterally extend DOT's maintenance burden by building new intersecting roads. That would conflict with the legislative reservation of trunk-system authority.
The opinion also addresses the SDCL 31-5-1 / SDCL 31-24-9 conflict. SDCL 31-5-1 says DOT "shall maintain and keep in repair, all highways or portions of highways" on the state trunk system. SDCL 31-24-9 says the intersecting highway's government provides and maintains the approach. Read literally, the two overlap. The AG resolves the conflict using the more-specific-controls canon (State v. Moschell, Estate of Smith). SDCL 31-24-9 is more specific to intersections, so it controls.
On the Teewinot Drive facts, the timing analysis is clear. SD 44 existed since 1951. Teewinot Drive was a private road built by a developer, with an approach permit from DOT in 1988. In 1998 the County Board authorized "minimal maintenance," and in 2007 the County formally added Teewinot Drive to the county secondary system. From 2007 onward, Teewinot Drive was a public county road intersecting an existing state highway. The County is the second-in-time intersecting government and is responsible for the approach.
The prior private-developer history does not change the result. The statute is silent about prior private ownership; it looks at when the road becomes a part of a state or local government system. The County's 2007 addition is the relevant date.
The opinion's tone is the typical AG approach to inter-governmental responsibility disputes. The AG identifies the specific statute, reads it carefully, addresses the broader framework, resolves conflicts with general statutes, and grounds the result in SD's broader doctrine of legislatively-defined local-government authority. The result is a clean rule that DOT and local governments can apply going forward.
Citations and references
Statutes:
- SDCL 31-1-1 (highway definition)
- SDCL 31-1-4 (classifications)
- SDCL 31-2-21 (DOT supervision)
- SDCL 31-3-6 to 31-3-9 (locating public roads)
- SDCL 31-4-1, 31-4-4, 31-4-130 to 31-4-247 (trunk system designation)
- SDCL 31-4-5 (snow removal in larger cities)
- SDCL 31-4-14 (DOT control of trunk maintenance)
- SDCL 31-5-1 (DOT maintenance duty)
- SDCL 31-12-5 (county system supervision)
- SDCL 31-12-26 (county secondary responsibility)
- SDCL 31-13-1 (township secondary roads)
- SDCL 31-24-9 (intersecting highway approach, 2010 amendment)
- SDCL ch. 31-24 (private approach provisions)
Cases:
- State ex rel. Jackley v. City of Colman, 2010 S.D. 81, 790 N.W.2d 491
- Van Gerpen v. Gemmill, 33 N.W.2d 278 (S.D. 1948)
- Pennington County v. State of South Dakota, 2002 S.D. 31, 641 N.W.2d 127
- State v. Moschell, 2004 S.D. 35, 677 N.W.2d 551
- Estate of Smith, 401 N.W.2d 736 (S.D. 1987)
Prior AG opinions:
- AGO 89-17 (mandatory procedure for county boards locating public highways)
Source
Original opinion text
Highway Maintenance Responsibility at State/County Highway Intersections
Dear Mr. Brenner:
You have requested an official opinion from this Office regarding responsibilities for maintenance of the driving surfaces that lie within the state highway right-of-way where state trunk highways and county highways intersect. Recognizing that you have narrowly framed your questions to address only existing state/county highway intersections, I believe a broader review of the law is necessary to assist in properly addressing the issues. Your reframed questions are as follows:
QUESTION 1:
For intersections connecting a state trunk highway with a local government highway, is the South Dakota Department of Transportation (DOT) responsible for maintaining all connecting driving surfaces (roadways) located within the state highway right-of-way?
ANSWER:
Responsibility for maintenance of an intersecting local government highway roadway located within a state highway right-of-way is controlled by SDCL 31‑24‑9 and is dependent upon the date each highway came into existence. The government entity of the second or intersecting highway is responsible for construction and maintenance of the connecting roadway within the state highway right-of-way.
QUESTION 2:
Is maintenance of the roadway for Pennington County secondary highway Teewinot Drive located within the South Dakota Highway 44 (SD 44) right-of-way the responsibility of DOT or of Pennington County, where the approach was originally constructed by a developer as a connection to a private roadway and the county later added the roadway to its county secondary system?
ANSWER:
Pennington County is responsible for construction and maintenance of the connecting roadway. Prior private ownership of an approach is not a recognized exception for maintenance responsibilities. Under SDCL 31‑24‑9, as the second or intersecting public highway, Pennington County is responsible.
FACTUAL BACKGROUND:
SD 44 is a part of the state trunk highway system and runs easterly across South Dakota from its intersection with U.S. Highway 385 in Pennington County to Interstate Highway 29 in Lincoln County. For the portion located in Pennington County, the SD 44 highway right-of-way varies in width between approximately 140 feet and 190 feet, with the roadway or main-traveled portion of the highway essentially centered in the right-of-way.
Teewinot Drive is a Pennington County secondary highway that intersects with SD 44. DOT has advised that this portion of SD 44 has existed at its current location since 1951. Teewinot Drive was initially constructed as a private roadway. The intersection with SD 44 was constructed by a private developer pursuant to an approach permit issued by the DOT in 1988. At some point after the approach was constructed, Pennington County assumed maintenance responsibility for Teewinot Drive. According to the minutes of its November 3, 1998, meeting, the Pennington County Board of Commissioners authorized the Pennington County Highway Department "to do minimal maintenance" on certain "Rapid Valley Streets," including Teewinot Drive. Subsequently, on May 22, 2007, the Pennington County Board of Commissioners adopted Resolution No. 14‑07‑01, which "added" Teewinot Drive, along with other road segments, to the "Pennington County Secondary Highway System as full maintenance roads."
It is unclear if Pennington County assumed jurisdiction of Teewinot Drive in accordance with the statutory procedure prescribed in SDCL §§ 31‑3‑6 through 31‑3‑9 for locating public roads. One of my predecessors, in Attorney General Opinion No. 89-17, concluded that the procedure prescribed by those statutes is mandatory upon county boards of commissioners considering locating a public highway. The May 2007 resolution certainly evidences Pennington County's intent to convert Teewinot Drive from a private subdivision road to a public highway by adding it to the county secondary system. Moreover, Pennington County does not dispute that it is responsible for maintenance of Teewinot by virtue of SDCL 31‑12‑26.
It has been the practice of the Pennington County Highway Department to not maintain the Teewinot Drive connecting approach within the state highway right-of-way. It has been the position of the DOT, however, that the Teewinot Drive approach is the maintenance responsibility of the county, as the successor in interest to the private developer. When surface repairs have been required to the approach to Teewinot Drive, the DOT has completed the repairs after the county refused to do so, and billed Pennington County for the repair costs.
SDCL 31-4-5 requires municipalities with populations over 2500 to perform snow removal on the state trunk highway system within their municipal limits. Snow removal is therefore not at issue here.
The discussion below is intended to address maintenance responsibilities which are not addressed by SDCL 31-4-5. Further, I am not addressing construction or maintenance responsibilities for private approaches, which are separately addressed in SDCL ch. 31-24.
IN RE QUESTION 1.
South Dakota law defines a highway as "[e]very way or place of whatever nature open to the public, as a matter of right, for purposes of vehicular travel[.]" SDCL 31-1-1. The term "highway" does not include a roadway or driveway on grounds owned by private persons, except that colleges, universities and other institutions may designate such roadways as highways with the concurrence of the DOT. SDCL 31-1-1. Id. Highways are classified by South Dakota law as: (1) streets and alleys within the limits of municipal corporations; (2) the state trunk highway system; (3) the county highways systems; and (4) all other highways denominated secondary highways. SDCL 31-1-4.
DOT is responsible for maintenance of the state trunk highway system. SDCL 31‑2‑21 provides: "The Department of Transportation shall supervise the construction and maintenance of the state trunk highway system, its bridges, and culverts." SDCL 31-4-14 states: "All marking, surveying, construction, repairing, and maintenance of the state trunk highway system is under the control and supervision of the department. The department shall administer the laws relative thereto." SDCL 31-5-1 provides: "The Department of Transportation shall maintain, and keep in repair, all highways, or portions of highways, including the bridges and culverts, on the state trunk highway system."
Other public entities are responsible for highways outside of the state trunk system. Cities have authority over streets and alleys within their jurisdictional limits. State ex rel Jackley v. City of Colman, 2010 S.D. 81, ¶ 9, 790 N.W.2d 491, 494 (citing SDCL 31-1-4). Under SDCL 31-13-1, the board of township supervisors is responsible for the construction, maintenance and repair of all secondary roads within an organized civil township. SDCL § 31-12-5 makes counties responsible for the county highway system:
The construction, improvement, maintenance, and repair of the county highway system, except as provided for state trunk highways shall be under the supervision of the county superintendent of highways in organized counties, who shall formulate and direct the policy of the county for the construction, improvement, maintenance, and repair of the county highway system.
Counties are also responsible for the construction, maintenance and repair of secondary highways that are within the county and not included in a municipality, organized civil township, road district, or improvement district. SDCL 31-12-26. Given the legislative division of responsibilities for the various classifications of public highways, the Supreme Court has refused to find overlapping jurisdiction, duties or responsibilities. Van Gerpen v. Gemmill, et al., 33 N.W.2d 278, 279-80 (S.D. 1948); City of Colman, 2010 S.D. 81, ¶ 9 790 N.W.2d at 494.
SDCL 31-24-9, as amended by the Legislature in 2010, addresses public entity respective responsibilities when highways intersect as follows:
Township supervisors, county commissioners, the Department of Transportation, or others having direction of any highway grade shall provide at every place where such grade crosses an intersecting public highway an easy and accessible approach to such grade on each side thereof upon each such intersecting public highway. The approach shall be at least twenty-four feet in width. Any officer or other person charged with the duty of providing approaches at an intersection, as provided in this section, who fails in the performance of the duty, commits a petty offense.
In my opinion, this statute establishes the responsibilities of the respective government entities over connecting roadways where two public highways intersect. SDCL 31-24-9 makes it clear that the public highway that intersects an existing public highway is responsible for all connecting roadway surfaces. Thus where DOT constructs a highway which intersects with an existing public highway, the DOT is responsible for the connecting roadway surfaces or approaches to the pre-existing highway. The same follows when the Legislature adds an existing highway or private driveway to the state truck highway system and it intersects with an existing county or township highway. In such a case the DOT is again responsible for the connecting roadway surfaces or approaches to the county or township highway.
The rule applies the same regardless of the identity of the governmental unit. If the county constructs a highway, or adds a roadway to the county highway system, and that highway intersects with a highway on the state trunk system or with a township highway, the county is responsible for the connecting roadway surfaces or approaches to the state or township highway.
Though the duty to maintain and repair is not directly addressed by SDCL 31‑24‑9, it can be implied from the language used. SDCL 31-24-9, as set forth above, requires that the governmental unit constructing the intersecting highway "provide . . . an easy and accessible approach". In my opinion, this language implies not only the responsibility of construction, but also maintenance. A governmental unit cannot "provide" an "accessible approach" if it does not also maintain the approach. If an approach is not maintained, it would quickly not be "provide[d]" or in the dictionary definition, "suppl[ied] for use". Webster's New Collegiate Dictionary, p. 921 (1979).
Moreover, another construction of the statute creates an absurd result, at least in the case of the state truck highway system. In particular, if the statute is not read to include maintenance responsibility, a county or township could unilaterally add maintenance responsibilities to the state trunk highway system in the absence of any express legislative authority. This result is prohibited by South Dakota law, which regards counties, townships and cities as subordinate arms of the State possessing only that authority specifically given by the Legislature. See, e.g., Pennington County v. State of South Dakota, 2002 S.D. 31, ¶ 10, 641 N.W.2d 127, 130-31 (citing S.D. Const. art. IX § 1). In fact, the Legislature has expressly reserved unto itself the power to designate the state trunk system, subject only to limited authority of DOT to make changes to the system. See SDCL 31-4-1, 31‑4‑4, 31‑4‑130 through ‑247. Under this statutory scheme, local governments have no power to add to the state trunk system through their own construction activities. Their power is limited to the authority in SDCL 31-24-9.
Further, I do not find the general provisions of SDCL 31-5-1, which were also amended in 2010, to supersede the provisions in SDCL 31-24-9. SDCL 31-5-1 now reads: "The Department of Transportation shall maintain and keep in repair, all highways or portions of highways, including the bridges and culverts thereon, on the state trunk highway system." It is a rule of statutory construction that where there is a conflict between two existing statutes, the more specific or the later in time generally controls. See State v. Moschell, 2004 S.D. 35, ¶ 39, 677 N.W.2d 551, 564 (more specific controls); Estate of Smith, 401 N.W. 2d 736, 740 (S.D. 1987). Since both statutes were amended in 2010, the more specific must control. SDCL 31-24-9 is the more specific of the two statutes, as it addresses DOT responsibility regarding intersecting highways.
IN RE QUESTION 2.
When Pennington County assumed jurisdiction of Teewinot Drive from the developer, the private road became a public highway. Since SD 44 was already in existence at that location when jurisdiction was assumed, Teewinot Drive became the intersecting highway. Pennington County became responsible for all connecting roadway within the state right-of-way to the actual roadway. Contrary interpretation would mean that a county could add public highway pavement to the state highway system, to be maintained at the state taxpayers' expense, without the state's consent, and contrary to the Legislature's preemption of that authority.
The fact that the Teewinot Drive approach to SD 44 was constructed prior to Pennington County adding the private roadway to its secondary highway system has no effect on the application of SDCL 31-24-9. The statutes are not concerned with when a private developer constructs a private roadway; the statutes are concerned only with the time at which the roadway becomes part of a state or local government's system of roads.
Accordingly, Pennington County is obligated to maintain the roadway connecting Teewinot Drive with SD 44, including the roadway within the state right-of-way, absent further legislative action.
Respectfully submitted,
Marty J. Jackley
Attorney General
MJJ/JPH/rar