South Dakota Highway 50 ran through Vermillion. In 1951, the state acquired an extra 35 feet of right-of-way by warranty deed in anticipation of highway widening, but the widening did not use all the new right-of-way. Vermillion now wanted to build sidewalks along Highway 50, and the sidewalks would fall entirely within the state's right-of-way, with a narrow strip of state land between the sidewalk and the private properties. Who paid for the sidewalk construction and repair: the state (which technically owned the land where the sidewalk would sit) or the abutting private property owners?
Plain-English summary
South Dakota Highway 50 ran east-west through Vermillion, generally along a section line. In 1951, anticipating a widening project, the state had purchased an additional 35 feet of right-of-way south of the original right-of-way, taking it by warranty deed from the private property owners. The widening was eventually built, but it did not consume the full 35 feet. So a strip of state-controlled right-of-way remained, between the actual paved highway and the private property line.
By 1973, the City of Vermillion had determined that sidewalks were needed along Highway 50. The sidewalks would be built entirely within the state-acquired right-of-way (not on the private property), with a narrow strip of state right-of-way remaining between the sidewalk and the private property line.
Mr. Rusch (presumably a Vermillion city attorney or city engineer) asked the AG: who pays? The state (as the deed-holder of the right-of-way) or the abutting private property owners (as the original owners and the people whose properties most benefit from the sidewalks)?
The AG ruled the abutting property owners pay.
The reasoning rested on a foundational South Dakota constitutional principle: state highway right-of-way is only an easement, not a fee, even if acquired by warranty deed.
Article VI, Section 13 of the South Dakota Constitution provided: "Private property shall not be taken for public use, or damaged, without just compensation. . . . The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken."
The Constitution's explicit reservation of the fee to the original landowners meant that no matter how the state had taken the land (by warranty deed, by condemnation, by dedication), it only had an easement for highway use. The underlying fee stayed with the original owner. Meek v. Meade County, 12 S.D. 162 (1899), had established this principle nearly 75 years earlier. The 1945-46 AGR 336 and 1959-60 AGR 19 opinions had reaffirmed it.
So even though the 1951 transaction was a warranty deed, the state held only an easement. The abutting property owners (the successors to the original 1951 grantors) still held the fee, subject to the state's highway easement.
SDCL 9-43-5 allowed municipalities to assess local improvements "on property adjoining or benefitted thereby." Sidewalks benefited the private property next to them, not the state highway easement. The state had an interest only in maintaining the highway as a transportation facility, not in providing pedestrian sidewalks.
Chicago & North West Railway Co. v. City of Hot Springs, 52 S.D. 484 (1928), had ruled that even when a railroad right-of-way separated property from the improvement, the property could be specially assessed for the improvement if it benefited. The same logic applied here: the state highway easement separating the sidewalk from the abutting property's fee did not change the fact that the abutting property received the sidewalk benefit.
Bottom line: Vermillion could assess the sidewalk construction and repair costs against the abutting property owners under SDCL 9-43-5 and Chapters 9-43 and 9-46. The state was not liable; the abutting owners were.
Currency note
This opinion was issued in 1973. 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. South Dakota's municipal special assessment framework in SDCL Chapters 9-43 through 9-46 has been amended several times since 1973, and additional case law has developed on the proper scope of assessments. The constitutional rule that highway acquisition creates an easement rather than a fee remains foundational, but its application to specific factual patterns (modern transportation projects, multi-use right-of-way, federal-aid highways) may differ from this 1973 analysis. Municipalities and property owners facing similar questions should consult current statute and case law.
What the opinion meant at the time
For the City of Vermillion, the opinion enabled the sidewalk project. The City could proceed with construction and assess the abutting property owners for the cost without first seeking state participation.
For abutting property owners along state highways generally, the opinion was a reminder that fee ownership followed the original lot lines (not the state right-of-way limits) and that improvements within the state right-of-way could still be charged to the underlying fee holders if they benefited.
For state highway officials, the opinion confirmed that state highway right-of-way was a use-limited interest. The state had transportation rights, not absolute control. Municipalities could put sidewalks within the right-of-way (with proper coordination) without making the state pay.
For other South Dakota cities considering sidewalk projects along state highways, the opinion provided a model. The framework was: state has easement for highway use, abutting owners have underlying fee, sidewalks benefit abutting owners, municipal assessment to abutting owners under SDCL 9-43-5.
For developers and property owners purchasing land along state highways, the opinion was a caution. The right-of-way did not insulate the abutting parcel from sidewalk assessment obligations. New purchasers had to consider potential future improvement assessments in their cost analysis.
Common questions
Q: What if the abutting owner objected to the sidewalk being built?
A: Sidewalk decisions were typically the municipality's call under its general police power and public improvement authority. The abutting owner did not have a veto. The owner could appeal the assessment amount (whether it was proportionate to the benefit) through the special assessment process, but could not stop the sidewalk itself.
Q: What about the maintenance of the narrow strip of right-of-way between the sidewalk and the private property?
A: The strip was within the state's highway easement, but with no active use (no roadway, no shoulder). Typically the abutting owner mowed it as a courtesy or under local nuisance/grass-cutting ordinance. The state did not actively maintain such residual strips. Vermillion could have included strip maintenance in the sidewalk assessment framework, but the opinion did not address this.
Q: Could the state have used the strip for something other than the highway, like a state office building?
A: No, the state's interest was limited to highway use. Article VI, Section 13 expressly restricted state-acquired highway land to "the use for which it is taken." A non-transportation use would exceed the easement and would require either a separate acquisition or release back to the original owners.
Q: What if the state widened the highway in the future and used the strip for road expansion?
A: That was within the easement's scope (highway use). The state would not need to re-acquire the land or compensate the abutting owners again. The original 1951 acquisition had already paid for the highway-use rights.
Q: What if the sidewalk extended beyond the state right-of-way onto private property?
A: The portion on private property would require an easement from the property owner (donated, purchased, or condemned). The assessment for the on-private-property portion would still be against the abutting owner under SDCL 9-43-5, but the construction itself required the right to enter and build.
Q: Could federal funding for the sidewalk (federal-aid highway sidewalk programs) change the analysis?
A: Possibly. Federal funding programs sometimes required matching from the state highway agency rather than from local sources, which could shift cost responsibility. The 1973 opinion did not address federal aid implications. Modern projects often involve a federal/state/local cost-share that does not map cleanly onto the easement-vs-fee analysis.
Q: What if the state had taken the right-of-way by condemnation rather than warranty deed?
A: The result would have been the same. Article VI, Section 13 applies to all state acquisitions of highway land regardless of method (deed, condemnation, dedication). The state always gets only an easement; the fee always stays with the original owner.
Background and statutory framework
South Dakota's framework for state highway right-of-way rests on a 1889 constitutional choice. The framers of the South Dakota Constitution (Article VI, Section 13) decided that highway and railroad takings would create easements, not fees. This was a property-rights protective rule: the original landowner retained the underlying fee even after the highway was built, and could regain full use of the land if the highway use ever ceased.
The economic effect is that highway right-of-way acquisitions in South Dakota are cheaper than in fee-acquisition states, because the state pays only for the easement value (current and future use as a road), not for the underlying fee value. But the legal complication is that municipal and other downstream interests have to navigate the abutting-owner-as-fee-holder framework.
The Meek v. Meade County case (1899) was the earliest South Dakota Supreme Court interpretation of the constitutional rule. Subsequent cases reinforced it.
SDCL Chapter 9-43 and Chapter 9-46 covered municipal special assessments. The general framework was that a municipality could undertake local improvements (streets, sewers, sidewalks, lighting, etc.) and assess the cost against benefited properties in proportion to benefit. SDCL 9-43-5 was the core authorization.
The Chicago & North West Railway case (1928) had addressed a related question: could property be specially assessed for an improvement when a railroad right-of-way physically separated the property from the improvement? The Supreme Court said yes: if the property benefited, it could be assessed, regardless of intervening rights-of-way. The 1973 sidewalk opinion applied the same principle to the state highway easement situation.
The interplay between these rules produced a somewhat counterintuitive result: a sidewalk built entirely within the state highway right-of-way could be charged to the private property owners next door, because the constitutional easement-only rule kept the fee with the private owners, and the benefit-based assessment rule attached the improvement cost to the benefited fee owners.
The opinion was signed by Attorney General Kermit A. Sande, who succeeded Gordon Mydland. Sande's tenure (1973-1979) included several opinions clarifying the boundaries between state and municipal authority over public works.
Citations and references
Constitution:
- S.D. Const. Art. VI, § 13 (fee of land taken for highways remains in original owners)
Statutes:
- SDCL 9-43-5 (municipal special assessments on adjoining or benefitted property)
- SDCL Chapters 9-43 and 9-46 (special assessment and improvement procedures)
South Dakota cases:
- Meek v. Meade County, 12 S.D. 162, 80 N.W. 182 (1899)
- Chicago & North West Railway Co. v. City of Hot Springs, 52 S.D. 484, 218 N.W. 876 (1928)
Prior AG opinions:
- 1945-46 AGR 336 (highway right-of-way as easement)
- 1959-60 AGR 19 (same)
Treatise:
- 39 Am. Jur. 2d, Highways, Streets and Bridges, § 160
Source
Original opinion text
Liability for cost of sidewalk on public right of way.
Dear Mr. Rusch:
You have requested an opinion based on the following facts:
South Dakota Highway 50 goes through Vermillion in an east west direction. The highway runs along a section line. In 1951 in anticipation of widening the highway, the state purchased by warranty deed an additional 35 feet of right-of-way south of the original right-of-way. The highway was subsequently widened but it did not take up all of the right-of-way.
The City of Vermillion has now determined that it is necessary that sidewalks be constructed along said highway. The sidewalks would fall solely within the state owned right-of-way, leaving a narrow strip of land between the south edge of the sidewalk and the north edge of the privately owned property.
Your question is whether the State or the abutting owner is liable for the sidewalk construction and repair cost.
In my opinion, the State only acquired an easement for highway purposes, and the abutting owner remains liable for the sidewalk construction and repair costs.
South Dakota Constitution, Article VI, §13, provides:
Private property shall not be taken for public use, or damaged, without just compensation. . . . The fee of land taken for railroad tracks or other highways shall remain in such owners, subject to the use for which it is taken.
The Constitution indicates that even though the State purchased the right-of-way by warranty deed, its interest remains only an easement. See Meek v. Meade County, 12 S.D. 162, 80 N.W. 182 (1899). Also 1945-46 AGR 336 and 1959-60 AGR 19.
This being true, the abutting property owner's interest would extend through the State's easement.
SDCL 9-43-5 provides:
Every municipality shall have power to make assessments for local improvements on property adjoining or benefitted thereby, to collect the same in the manner provided by law, and to fix, determine, and collect penalties for nonpayment of any special assessments. (Emphasis added)
The construction of these sidewalks benefit the private property adjacent thereto. They do not benefit the State, whose only interest is in maintaining the highway.
In interpreting SDCL 9-43-5, our Supreme Court held in Chicago & North West Railway Co. v. City of Hot Springs, 52 S.D. 484, 218 N.W. 876 (1928) that collection for an assessment could not be restrained because the property specially assessed was separated from the improvement by railroad right-of-way. See also, 39 Am. Jur. 2d, Highways, Streets and Bridges, §160.
In my opinion, SDCL 9-43-5 contemplates that the abutting owner and the fee owner of the State's easement for highway purposes (being one and the same) is the benefactor of the improvement. SDCL Chs. 9-43 and 9-46 require the City of Vermillion to charge the cost of the sidewalk construction and repair to the benefitted owner.
Respectfully submitted,
Kermit A. Sande
Attorney General