In South Dakota, can the public hunt on a section line where the farmer has planted crops? Can they drive on unimproved section lines? When does a section line count as 'improved' enough to allow hunting? And if a landowner fences off a section line, what can a frustrated hunter or traveler actually do about it?

Plain-English summary

In 1987 the Game, Fish and Parks Secretary asked the AG for a comprehensive ruling on the rights of hunters and travelers on section lines, and the corresponding rights of landowners to fence or plant across them. The questions came up constantly in the field, and the answers depended on a tangle of statutes and Supreme Court cases. AG Roger Tellinghuisen used the opportunity to lay out a usable framework.

The starting point: under the Highway Act of 1866 (later repealed but not retroactively), the federal government granted rights-of-way along section lines on public lands. The Dakota Territory legislature accepted that grant by passing what became SDCL 31-18-1 and 31-18-2. Result: every section line in South Dakota was, by operation of law, a public highway open to vehicular travel, unless lawfully vacated. Thormodsgard v. Wayne Township (S.D. 1981) and Costain v. Turner Co. (S.D. 1949) had cemented the rule that non-use, non-improvement, and non-traveling did not abandon the highway. Only formal vacation by an authorized public officer or board could close a section line.

So the answer on travel was simple. The public could drive on any section line that had not been formally vacated. Crops, rocks, fences, hay bales, or other obstructions did not change that. The presence of crops was "irrelevant" to the right to travel.

Hunting was different. SDCL 41-9-1.1 limited hunting on section lines to two categories: section lines that were "improved" for vehicular travel, or section lines that were "commonly used by the public for vehicular travel." The Peters case had defined "improved" expansively: even just moving rocks to facilitate vehicle passage counted. The AG built on Peters and said anything done to facilitate vehicular travel could qualify. The history of the section line, not just its current state, mattered for the improvement question. A section line presently covered in crops could still be "improved" if it had at some point been altered for vehicle use.

Hunting was further restricted by distance buffers under SDCL 41-9-1.1: 660 feet from occupied dwellings, churches, schoolhouses, or livestock. And hunting was not allowed on controlled access facilities or interstate highways at all.

On fencing, the AG explained two different statutes. SDCL 31-25-1 required a landowner who wanted to fence across any section line highway to petition the county commissioners. After notice to adjacent landowners, the commissioners could authorize the fence by resolution, but had to require gates or grates so the public retained access. SDCL 31-25-1.1 was a narrower fast track for landowners with truly unimproved section lines (defined as never altered for vehicular passage and not commonly used as a public right-of-way). The landowner could fence without commissioner action, but had to install an unlocked gate or other suitable access if any adversely affected person filed a request with the sheriff. Failure within seven days was a Class 2 misdemeanor.

On remedies for unlawfully obstructed section lines, the AG outlined three:

1. Limited self-help. A traveler could lawfully use the section line, and to the extent travel incidentally and unavoidably damaged unlawful obstructions (crops planted on the line, hay bales placed on the line, etc.), no liability attached. The traveler could potentially cut a fence to pass through if the fence was unlawfully placed and the fence could be reasonably restored without destruction, provided no gate, grate, or suitable access existed. The K & E Land and Cattle Co. case had drawn the line at malicious destruction.

2. Petition the public body. The township board of supervisors or county commissioners could be petitioned (orally or in writing at a regular meeting) to open and maintain the highway. The board had a duty to do so.

3. Civil suit. Lawrence v. Ewert (1908) had established that a private party could sue to enjoin obstruction of section line highways, even when county commissioners had not formally opened the road.

Currency note

This opinion was issued in 1987. 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 section line statutes and hunting rules have been amended since 1987, and the South Dakota Supreme Court has had additional opportunities to address section line disputes. The federal Highway Act of 1866 (43 U.S.C. § 932) was repealed in 1976; that repeal preserved existing grants but cut off new ones. The 660-foot buffer and other hunting restrictions in SDCL 41-9-1.1 may have been adjusted in subsequent amendments.

What the opinion meant at the time

For hunters in 1987 South Dakota, the opinion was a practical decision tree. Standing on a section line, the hunter could ask: Has this line ever been altered for vehicle use? Is it commonly used by the public as a public right-of-way? If yes to either, hunting was lawful, subject to the buffer distances. If no to both, the public could still walk or drive through (the line was a public highway) but hunting required landowner consent.

For rural landowners, the opinion clarified that planting crops over a section line, or even fencing one off, did not legally close it. Landowners who wanted to fence had to either go through SDCL 31-25-1's county-commissioner process (which mandated gates) or qualify for SDCL 31-25-1.1's narrow truly-unimproved exception (which still required gates on request). Self-help fencing without going through one of those paths was unlawful and exposed the landowner to civil and potential criminal consequences.

For sheriffs and county commissioners, the opinion gave them a checklist. SDCL 31-25-1.1 requests came in through the sheriff. After notice to the landowner, the landowner had seven days to install an adequate gate. Non-compliance was a Class 2 misdemeanor. Petitions to open obstructed highways came to the commissioners or township board, who had a duty to act.

For Game Fish and Parks officers enforcing hunting rules, the "improved or commonly used" test gave them a workable standard. The Peters case anchored the analysis: minimal alteration (moving rocks, creating tracks) was enough to qualify as improved.

For travelers and hunters thinking about how to handle obstructions, the AG's preference was clear: petition first, sue second, self-help only as a narrow last resort. Malicious destruction crossed the line into criminal exposure under K & E Land and Cattle Co. The AG specifically called out the difference between cutting a fence to pass through (potentially lawful if the fence could be restored and no gate existed) versus destroying the fence outright (not lawful).

Common questions

Q: What was the historical legal basis for section line highways?
A: The federal Highway Act of 1866 (R.S. 2477, 43 U.S.C. § 932). It granted rights-of-way for highway construction over public lands. The Dakota Territory legislature accepted the grant by enacting what became SDCL 31-18-1 and 31-18-2. When R.S. 2477 was repealed in 1976, the repeal did not affect grants that had already vested.

Q: What did "improved" actually mean?
A: Anything done to facilitate vehicular travel. The Peters case treated moving rocks as enough. The AG's reading broadened it to encompass any alteration from the natural state of long grass prairie that helped vehicles pass. Compacted tire tracks alone might not be enough (that's just use, not alteration), but tracks plus removed rocks or grading or any other deliberate work probably would be.

Q: Could the public hunt on a recently-planted-over section line?
A: It depended on whether the line had ever been altered for vehicle travel. The current crops did not determine the answer; the history did. If at any point in the past the line had been improved (rocks cleared, grade smoothed, regular vehicle use established), it remained subject to public hunting rights even if the landowner had since planted crops over it. If the line had truly never been altered, then it was unimproved and the SDCL 31-25-1.1 framework applied.

Q: Could the public drive over a crop on an unimproved section line?
A: Yes, if the line had not been vacated. The right of travel was independent of the right to hunt. Travel did not require improvement. The traveler had no liability for crops incidentally destroyed by exercising the lawful right of travel.

Q: Could a landowner shoot bird-hunters who were lawfully on an improved section line?
A: No, and the question was outside the opinion's scope, but the legal premise was important. Hunters lawfully on an improved or commonly-used section line had the same legal status as travelers on any other public road. Aggressive resistance by a landowner could expose the landowner to criminal liability for assault or worse, and civil liability if anyone was injured.

Q: What if a fence had been in place for decades?
A: Long presence did not legalize an unlawfully placed fence. Section lines could only be vacated by formal action of the county commissioners or other authorized body. Adverse possession-style theories did not apply against public rights. So a 50-year-old fence across an unvacated section line was as illegal as a brand-new one.

Q: Could a landowner who legally fenced under SDCL 31-25-1 lock the gate?
A: The statute required "erection of gates or grates, or both" to give the public access. A locked gate would defeat the access requirement. The point of the gate was to let the public still use the highway. A reasonable accommodation might be an unlocked gate that closed automatically; a locked one defeated the access purpose and would itself be unlawful.

Background and statutory framework

South Dakota's section line public-highway tradition grew out of the rectangular survey system that subdivided most of the state's land into one-mile squares. The federal Highway Act of 1866 made section lines into a default road network. Dakota Territory accepted the grant before South Dakota statehood, creating thousands of miles of section line public highways that exist mostly in legal abstraction, never graded or signed.

SDCL chapter 41-9 governed hunting, and section 41-9-1.1 specifically addressed section line hunting. The improved-or-commonly-used standard balanced two interests: giving hunters reasonable access to the section line network, while preventing the more intrusive activity of hunting from being conducted on lines that were essentially still wild prairie under crop or grass.

SDCL chapter 31-25 governed fencing across highways. The two procedures (31-25-1 and 31-25-1.1) reflected a graduated approach. Real public highways needed commissioner approval and mandatory gates. Truly unimproved lines could be fenced more easily but still required gates on request.

The Supreme Court cases the AG cited had cumulatively built a strong public-rights doctrine. Costain (1949) established that the federal grant had been accepted. Thormodsgard (1981) prevented abandonment by mere non-use. Peters (1983) defined improvement broadly. K & E Land and Cattle Co. (1983) drew the malicious-destruction line for self-help. Lawrence v. Ewert (1908) established the private right of action to enjoin obstructions. The 1987 opinion knit these together into a coherent framework.

Citations and references

Statutes:
- SDCL 31-8-1 (controlled access facilities)
- SDCL 31-18-1, 31-18-2 (section-line highways)
- SDCL 31-25-1 (fencing with county approval)
- SDCL 31-25-1.1 (unimproved highway fencing)
- SDCL 41-9-1.1 (section line hunting)

Federal:
- 43 U.S.C. § 932 (Highway Act of 1866, R.S. 2477; repealed 1976)

Cases:
- State v. Peters, 334 N.W.2d 217 (S.D. 1983)
- Costain v. Turner Co., 72 S.D. 427, 36 N.W.2d 382 (1949)
- Thormodsgard v. Wayne Township Board of Supervisors, 310 N.W.2d 157 (S.D. 1981)
- K & E Land and Cattle Co., Inc. v. Mayer, 330 N.W.2d 533 (S.D. 1983)
- Lawrence v. Ewert, 21 S.D. 580, 114 N.W. 709 (1908)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=197

Original opinion text

Section line highways

Dear Mr. Beringson:

You have requested an official opinion from this office based upon the following factual situation:

FACTS:

Various members of the public wish to hunt on section lines within the State of South Dakota. Such hunting is governed by SDCL 41-9-1.1. The South Dakota Supreme Court interpreted this statute in State v. Peters, 334 N.W.2d 217 (S.D. 1983), and stated that where a section line had been altered from its natural state of long grass prairie for the purpose of facilitating vehicular passage in that it contained compacted vehicle tracts and was likely cleared of rocks to avoid damages to vehicles that the section line had been improved, and was thus open to the public for hunting purposes. Questions continually arise regarding particular section lines, in whether the public may hunt on them or travel on them.

Concerning the preceding facts, you have asked the following questions:

QUESTIONS:

1. May the public hunt on section lines where crops have been planted over the section lines?

2. May the public drive on unimproved section lines, and if so, when does the section line become sufficiently "improved" so as to permit hunting on it under SDCL 41-9-1.1?

3. May a landowner fence a section line, and if he does so, what remedies are available to those who either wish to travel on, or hunt on, the section line?

IN RE QUESTIONS:

For convenience, I will address all of your questions in one section of this opinion, without breaking the matter down further. Rights of the public in section lines are one of the more controversial and confusing issues arising in this State. Fortunately the matter has been fairly well delineated by statute and by the South Dakota Supreme Court in various cases.

The original basis for section line highways is the Highway Act of 1866, R.S. 2477, 43 U.S.C. § 932 (1970); repealed by P.L. 94-579, § 706(a), 90 Stat. 2744, 2793 (October 21, 1976). This Act provided a right-of-way for construction of highways over public lands, not reserved for public uses. The Legislature of Dakota Territory, and later the South Dakota Legislature, accepted this right-of-way grant by passage of SDCL 31-18-1 and 31-18-2. See Costain v. Turner Co., 72 S.D. 427, 36 N.W.2d 382 (1949). Thus, because of the federal grant, and the State's acceptance of that grant, there exists by operation of law on every section line within this State a public highway, except where some portion of the highway along the section line has been vacated or relocated by lawful action of some authorized public officer, board, or tribunal. This public highway is present, and is open to vehicular traffic by the public, in any case where the section line has not been vacated. Thormodsgard v. Wayne Township Board of Supervisors, 310 N.W.2d 157 (S.D. 1981). Abandonment of such a section line highway cannot be established solely by evidence that the highway has never been opened, improved, or traveled. Id. at 159; Costain v. Turner Co., supra. Thus, it must affirmatively be shown that a section line highway has been vacated, or the section line remains open to public travel, whether or not the section line has ever been improved in any manner for vehicular travel. The fact that crops have been planted over section lines is irrelevant. So long as the section lines have not been legally vacated, the public has a right to travel them, whether or not they contain crops or other obstructions. Whether the public may hunt on section lines where crops have been planted is dependent upon whether the section line has been "improved" or is one "commonly used for vehicular travel."

Hunting on sections lines is permitted without consent of adjoining landowners (1) if the section line is "improved" for vehicular travel; or, where the section line is unimproved, if it is "commonly used by the public for vehicular travel." This does not apply to controlled access facilities as defined in SDCL 31-8-1 and interstate highways. No one may hunt rights-of-way within six hundred sixty (660) feet of an occupied dwelling or church or school house or within like distance of livestock on adjoining land.

Perhaps the most difficult question is: When does a road become sufficiently "improved" to permit hunting under SDCL 41-9-1.1? First, no landowner may restrict access to a section line that has not been legally closed, and the public has a right to drive on it. Merely because the public has driven thereon, however, would be insufficient to render the section line "improved." In State v. Peters, 334 N.W.2d 217 (S.D. 1983) the South Dakota Supreme Court, in dealing with the definition of "improved," noted that rocks had probably been moved to facilitate vehicular travel and as such the road could be considered "improved." It is my opinion, based upon the Peters case, that in order for a section line to be considered "improved" it must be shown that something has been done to facilitate vehicular travel over the section line. If this is shown, the public would then have the right, not only to travel the section line, but also to hunt upon it.

Present usage of a section line would not be entirely determinative of the question of whether a section line has been improved. The presence of crops on a section line does not conclusively determine that it has never been altered for purposes of vehicular travel. Rather, it would be necessary to consider the entire history of the section line, and to determine whether it has ever been altered for purposes of vehicular travel. Please note that merely because the section line has not been altered for purposes of vehicular travel, that fact alone does not give the landowner a right to exclude travel over the section line. Rather, unimproved section lines may be used for travel, but may not be hunted. They also may be fenced, but landowners are required to provide a gate and access to the unimproved section line. See SDCL 41‑9‑1.1; 31‑25‑1.1.

The other circumstance under which the public may hunt on a section line is where it is "commonly used as a public right-of-way." Regardless of whether or not it has ever been improved, a section line commonly used as a public right-of-way could be hunted by the general public.

A landowner adjoining a section line has no right to obstruct public travel on it, or to prevent persons from hunting it, where it is improved or commonly used as a public right-of-way. See SDCL 41-9-1.1, except as noted below.

A method is provided by SDCL 31-25-1 for the fencing of section line highways. This requires that landowners petition the county commissioners, whereupon, after notice to all adjacent landowners along the portion of the highway involved, the commissioners may, by resolution, authorize the landowners to erect and maintain fences across the section line highway. The board of county commissioners must, however, require erection of gates or grates, or both, in such fences at points designated by the board so that the public may still have access to the highway. This section does not permit a landowner to keep the public from access to highways.

Further, under SDCL 31-25-1.1, a landowner may erect a fence across an unimproved county, township, or section line highway. Such a road is defined as one not commonly used as a public right-of-way and never altered from its natural state in any way for the purpose of facilitating vehicular passage. It is to be noted that this definition is the same as that contained in SDCL 41-9-1.1, which is discussed above. SDCL 31-25-1.1 further requires that at any point where a fence crosses a section line highway, the landowner must erect and maintain an unlocked gate which may be opened easily or provide other suitable access to the highway. The landowner is further required to make the gate or other access large enough, and make it open easily enough, to satisfy the needs of those using the highway. This must be done upon a request, filed with the sheriff of the county in which the land is located, by any adversely affected person. If a request is filed, the sheriff must notify the landowner. The landowner is then required within seven (7) days of the notice to erect a sufficiently large gate or other suitable access to the highway. Any landowner failing to do so is guilty of a Class 2 misdemeanor, and could be subject to criminal prosecution.

Public bodies, be they townships, counties or the State, have duty to maintain public roads and rights-of-way. Members of the public can, therefore, petition the appropriate public body to maintain the highway, and to remove obstructions, and the public body has a duty to do so. I would encourage the latter method of obtaining access rather than any destruction even though it might not be malicious in nature.

It is not clear whether the public may remove obstruction to the section lines that it finds. In the case of K & E Land and Cattle Co., Inc. v. Mayer, 330 N.W.2d at 533 (S.D. 1983) the court held that even if a fence obstructed a public highway, one adjoining landowner did not have the right to destroy the fence. The case makes plain, however, that the landowner did have the right to travel the section line. It is my opinion that no member of the public can "maliciously" destroy a fence over a section line, even if it is wrongfully placed, however, a member of the public could travel the section line, and to the extent that such travel incidentally and unavoidably destroyed unlawfully placed obstructions, the landowner would have no right to recover for such destruction. See K & E Land and Cattle Co., Inc. v. Mayer, supra at 533. For instance, in my opinion, it would not be wrongful to cut a fence obstructing a public way if the fence could be reasonably restored, and it was not destroyed in the process provided there was no gate grate or other suitable access. Likewise, I do not believe it would be wrongful to remove hay bales placed in a public way or to drive over crops wrongfully planted in a section line. So long as malicious destruction of property is avoided, and no more destruction is accomplished than is necessary to travel the public way, such damage or destruction to property would not be wrongful under Mayer.

Finally, the South Dakota Supreme Court has held that a private party can bring suit to enjoin another from obstructing section line highways with fences even where county commissioners have not acted properly by opening a road. Lawrence v. Ewert, 21 S.D. 580, 114 N.W. 709 (1908). Thus, the remedies would be three in number. Self help may be used where no malicious destruction takes place, and no more is done than is reasonably necessary to allow travel of the section line. The township board of supervisors, or board of county commissioners, can be petitioned, either in writing or orally in a regular meeting, to open and operate the highway as required by law. An aggrieved party can also bring an action in circuit court for an injunction or other appropriate relief to end obstruction of the section line highway.

Respectfully submitted,

Roger A. Tellinghuisen

Attorney General