In rural South Dakota, can a neighboring landowner just plow up and farm an unimproved section line that's never been formally closed by the township? If they do, can the township make them restore it to grass? And what counts as 'obstructing' a section line, anyway, if you're growing crops on it?
Plain-English summary
Tripp County had a recurring dispute: adjoining landowners had been quietly farming unimproved section lines, treating them as part of their fields. The section lines had never been formally vacated by any township or county action. State's Attorney Donald Covey put two questions to AG Mark Meierhenry. First, could a farmer legally do that? Second, if not, what remedy did the township have, including whether it could force the farmer to restore the section line to its original grassy state?
The AG's answer to the first question was no. SDCL 31-18-1 declared every section line in South Dakota to be a public highway by operation of law, and a 1947-48 AG opinion had already explained that even seldom-used section lines retained their public-highway character until formally vacated. A farmer could not unilaterally appropriate that public highway by plowing it under.
The harder part was whether "farming" itself counted as an "obstruction" within the meaning of South Dakota's highway-obstruction statutes. SDCL 31-32-9 listed specific obstructions (rocks, stones, glass, flooding by irrigation) and SDCL chapter 31-25 limited fence construction. Crops were not on either list. The AG declined to draw a bright line. Whether a particular crop obstructed travel was a fact-specific determination that the governing authority (typically the township board) had to make in the first instance, subject to court review. The opinion offered useful examples of how that analysis might run: low-growing alfalfa probably did not obstruct travel, while head-high corn or cane probably did. Minimum-till cultivation might not obstruct; deep-till that disrupted the surface might.
The AG also made a key practical point that travelers and landowners both needed to understand: any individual wishing to travel along a section line had an absolute right to do so, "even if it results in damage to growing crops." A farmer who planted across a section line did so at his own risk. He could not sue a traveler for crop damage.
On the second question (remedy), the AG distinguished between jurisdiction and substantive authority. Jurisdiction over a particular section line ran either to the county commission (under SDCL 31-12-19 for secondary highways in the county system) or to the township board (under SDCL 31-13-1 for township roads). Assuming township jurisdiction, the board could bring a civil action against the obstructing party under SDCL 31-32-8. There was, however, no specific statutory authority to compel restoration to a pre-existing grassy state. The board could, in its discretion, decide as a factual matter that restoration was the only practical way to remove a particular obstruction, but whether a court would uphold that determination was uncertain.
Currency note
This opinion was issued in 1985. 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. The section-line highway statutes in SDCL chapter 31-18 and the obstruction statutes in SDCL chapter 31-32 have been amended multiple times since 1985, and the South Dakota Supreme Court has had additional opportunities to address obstruction disputes and the public-travel-rights principle.
What the opinion meant at the time
For township boards trying to deal with farmers who had taken section lines into cultivation, the opinion gave both a sword and a warning. The sword: SDCL 31-32-8 civil action was available, and the public-travel-rights principle from SDCL 31-18-1 meant the township had the law on its side. The warning: forcing restoration to grass was not a clean statutory remedy. The board would need to litigate the obstruction question on a fact-specific record, and a judge might or might not accept that returning to grass was the only way to remove the obstruction.
For farmers whose tractors crossed section lines as a matter of routine, the opinion was a sharper warning. The land was not theirs to convert. If a hunter, a neighbor, or a stranger wanted to drive a pickup or an ATV down that line, they could (and the crops were collateral damage, with no recourse for the farmer). Continued cultivation across a section line risked civil action and removal at the farmer's expense.
For state's attorneys advising township boards, the opinion confirmed the SDCL 31-32-8 enforcement path and gave a usable rubric for the fact question: look at crop height, look at tillage method, look at whether the public could realistically still travel. Document the findings, then file.
For hunters and recreational travelers (a real interest group in rural South Dakota), the opinion reinforced the broad public-access principle. State v. Peters in 1983 had already established that improved section lines were open to public hunting. The 1985 opinion extended the principle: unimproved section lines were also public highways, and the public retained the right to use them.
Common questions
Q: What did "section line" actually mean here?
A: A boundary line between sections in the rectangular survey system that organized most of South Dakota's rural land. Every full section is a square mile, and the section lines run along the four edges. Under SDCL 31-18-1, those lines are public highways by default, unless lawfully vacated.
Q: If the township never improved the section line, was it still a highway?
A: Yes. The improvement status didn't matter for the public-highway designation. SDCL 31-18-1 created the highway by operation of law. The improvement question was separate, and went to questions like maintenance duty (covered in opinion 95-01) and obstruction enforcement.
Q: Could a farmer get permission to fence across a section line?
A: SDCL chapter 31-25 set out conditions and procedures for permitted fencing in certain cases. Permission was the exception to the general no-fencing rule. A farmer who fenced without going through that process violated the obstruction statutes.
Q: What if the section line had been farmed for decades, and the public had stopped using it?
A: The 1947-48 AG opinion the AG quoted had directly answered that: "While they may not be in common use, in fact seldom used, they are nevertheless public highways." Non-use did not vacate the highway. Only formal action by an authorized public officer, board, or tribunal could do that.
Q: What if a traveler damaged the farmer's crops?
A: The AG was explicit: any individual had an absolute right to travel along a section line "even if it results in damage to growing crops." The farmer who planted across the line had no recourse.
Q: Could the obstructed traveler sue the farmer directly, instead of waiting for the township?
A: The AG noted that aggrieved individuals also had civil remedies, including actions for injunction or damages. So a stranded driver, hunter, or neighbor could potentially bring suit without involving the township.
Background and statutory framework
South Dakota's section-line public-highway rule has deep roots in the federal land-grant statutes that originally allowed roads to be laid out along section lines on the public domain. SDCL 31-18-1 codified the principle in state law: every section line, by operation of law, was a public highway, except where formally vacated.
The practical reality in rural South Dakota was that thousands of miles of section line had never been graded, surfaced, or signed. They existed only as legal abstractions. That set up the recurring dispute the opinion addressed: an adjacent landowner planted to the line, the public lost easy travel access, and someone (the neighbor, the hunter, the township) eventually objected.
The obstruction statutes in SDCL chapter 31-32 gave the enforcement framework. SDCL 31-32-8 authorized civil action. SDCL 31-32-9 listed specific obstructions and required their removal. The list was illustrative rather than exhaustive, which is why the AG had to leave room for the fact question.
The county-vs-township jurisdiction question (SDCL 31-12-19 vs. 31-13-1 vs. 31-1-5(3)) was important for any actual enforcement action. The wrong plaintiff (county suing where township had jurisdiction, or vice versa) could lose on standing. State's attorneys advising boards needed to confirm jurisdiction before filing.
State v. Peters, 334 N.W.2d 217 (S.D. 1983), had established public hunting rights on improved section lines. The 1985 opinion built on that foundation by extending the principle to obstructed unimproved lines: the public-highway designation gave broad travel rights, not just travel rights conditioned on usable maintenance.
Citations and references
Statutes:
- SDCL 31-1-5(3) (county secondary highways)
- SDCL 31-12-19 (county maintenance duty)
- SDCL 31-13-1 (township road authority)
- SDCL 31-18-1 (section-line highways)
- SDCL ch. 31-25 (fencing across highways)
- SDCL 31-32-8 (civil action against obstructers)
- SDCL 31-32-9 (obstructions removal)
Earlier AG opinions referenced:
- 1947-48 AGR 140
Source
Original opinion text
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May an adjoining landowner farm all or part of any unimproved section line without formal action to vacate and close the section line according to the statute?
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If the answer to question one is in the negative, what is the remedy of the township? May the township require the offending landowner or operator to restore the section line to its pre-existing grassy state? If so, under what authority?
IN RE QUESTION NO. 1:
It has long been the law in South Dakota that 'there is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board or tribunal.' SDCL 31-18-1. This office, when dealing with a similar question in 1947, aptly stated: 'If none of these section lines have been vacated or relocated by proper action of the authorities, they are still highways open to traffic, the passage of which may not be in any manner obstructed. While they may not be in common use, in fact seldom used, they are nevertheless public highways.' 1947-48 AGR 140.
Whether or not a 'farming' operation constitutes an 'obstruction to travel' involves a factual determination. The Legislature has specifically forbidden construction of fences across highways, with the exception of those cases covered by SDCL 31-25, wherein provision is made for securing permission to fence under certain conditions, and in a certain manner. In SDCL 31-32-9 the Legislature has enumerated rocks, stones, and glass as obstructions which must be removed, and has also designated flooding by irrigation as a condition to be repaired. The state statutes have not defined 'farming' as an obstruction to a section line highway. It is the duty of the governing authority to determine whether or not a section line has been obstructed.
That factual determination, for the purpose of governmental action to remove an obstruction, is with the agency seeking such removal. Such agency is not the final authority, however, for in the event an aggrieved party chose to litigate the question, the ultimate decision would be with the court system. In a determination of what did or did not constitute an impermissible obstruction to travel, a distinction might be made on the basis of what manner of cultivation was used, and what type of crop was present. A logical distinction would be possible, for example, between a low-growing alfalfa crop and a head-high crop of corn or cane. Likewise, a logical distinction could be made between 'minimum till' and 'deep till' cultivation.
Any individual wishing to travel along a section line has an absolute right to do so even if it results in damage to growing crops.
IN RE QUESTION NO. 2:
Your question presupposes that the particular section line is the responsibility of a Township Board. Jurisdiction over the particular section line, as between the Board of County Commissioners and a Township Board, is determined by the following statutes. SDCL 31-12-19. 'The County Commissioners shall maintain properly and adequately all public highways within the county secondary system,' SDCL 31-1-5(3) and SDCL 31-13-1 provide that secondary highways in organized townships and not within the county system are to be administered by the Board of Township Supervisors. In the 'contentions and arguments' submitted with your questions, you have used the term 'township section lines' and based on such reference, I shall assume the section lines in question fall under the jurisdiction of the Township Board.
The Township Board bears the responsibility of providing the public with access to public highways and has the duty to keep them free of obstructions. SDCL 31-32-9. Any person who obstructs such section lines may be liable to the Township Board in a civil action brought pursuant to SDCL 31-32-8.
Aggrieved individuals may also have remedies, through civil proceedings, against the offending party in the form of an action for injunction or damages.
The governing body or board has the duty to cause the particular obstruction to travel to be removed. There is no specific statutory authority to compel restoration of a section line to its previous grassy state. It would, apparently, be within the power of the Board, in the exercise of its discretion, to find, as a matter of fact, that there was no other method of removing a particular obstruction but to restore the section line to its pre-existing grassy state. I express no opinion as to whether or not such a factual determination would withstand judicial scrutiny.
Respectfully submitted,
Mark V. Meierhenry
Attorney General