If a South Dakota drainage district was formed in the 1910s or 1920s under the old drainage laws and is still functioning, does it have to file its vested drainage rights with the register of deeds before the 1992 deadline, or are the pre-1985 districts exempt?
Plain-English summary
Hutchinson County had a handful of drainage districts set up between 1910 and 1930 under the drainage statutes in force at the time. The ditches had been recorded in the county auditor's book under those old laws and ran through several sections of agricultural land affecting many owners. The 1985 Legislature substantially rewrote South Dakota drainage law and added SDCL 46A-10A-31, a vested-rights filing requirement: any drainage right acquired before July 1, 1985 was deemed vested only if the owner recorded it with the register of deeds within six years. The 1991 Legislature extended that filing deadline to July 1, 1992. Failure to file extinguished the right.
The same 1985 legislation also preserved older drainage districts. SDCL 46A-10A-43 said any drainage district that had functioned or made assessments in the three years before July 1, 1985 could continue in that status. SDCL 46A-10A-8 added that the new 1985 chapter applied to drainage districts "only as outlined under provisions of 46A-10A-43."
The county wanted to know how those three pieces fit together. Did a functioning pre-1985 drainage district have to file the SDCL 46A-10A-31 vested-rights paperwork? Was the duty on the district, on individual landowners, or on the county auditor? And who paid the costs?
The AG read the statutes together rather than each in isolation. Two types of pre-1985 drainage districts existed: ones run by county commissioners under SDCL ch. 46A-10 and ones run by boards of trustees under SDCL ch. 46A-12, both repealed in 1985. If either type was functioning or assessing within three years before July 1, 1985, the district survived under SDCL 46A-10A-43. The question was whether such a surviving district still had to clear the 46A-10A-31 filing hurdle.
The AG concluded no. The plain text of SDCL 46A-10A-8 limited the new 1985 chapter's reach to drainage districts to whatever SDCL 46A-10A-43 spelled out, and 46A-10A-43 spelled out only the continued existence of qualifying districts. The filing duty under 46A-10A-31 was not imported into that limited reach. So a functioning pre-1985 drainage district was not required to file vested rights with the register of deeds to keep its drainage rights from being extinguished.
The AG offered a cautious aside: the district might still want to file under 46A-10A-31 just to avoid a future challenge, but it was not legally required to. Because the answer to question one was no, the AG did not need to answer questions two and three (who files and who pays). The opinion did note in passing that if a district chose to file, the "owner or owners of either a dominant or servient estate," as defined in SDCL 46A-10A-1(11), should make the filing. If the district itself was the owner and ran through commissioners, the county auditor could file and recoup costs through the assessment system. If the district had trustees, the trustees should file. Individual landowners could file at their own expense if the district chose not to and the landowner wanted protection in case of future dissolution.
Currency note
This opinion was issued in 1991. 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 chapter 46A-10A has been amended multiple times since 1991, and the vested-rights filing deadlines and procedures may differ from what this opinion describes. Drainage districts evaluating filing obligations today should consult current SDCL provisions and recent case law.
What the opinion meant at the time
For drainage district trustees and county commissioners running pre-1985 districts, the opinion was relief from the impending 1992 filing deadline. The district itself did not have to file paperwork on every ditch with the register of deeds to keep its rights from being extinguished. The protective filing was optional, not mandatory.
For individual landowners served by ditches in a surviving drainage district, the opinion meant that they did not have to scramble to file under 46A-10A-31 to protect their share of the district's drainage rights. The district's continued existence under 46A-10A-43 was sufficient. If the landowner wanted independent protection in case the district someday dissolved, the landowner could file at their own expense, but that was a hedge, not a legal requirement.
For county auditors, the opinion clarified that they were not obligated to file vested-rights paperwork on behalf of pre-1985 districts. Pre-1985 drainage rights had been indexed in the auditor's office under SDCL 46A-10-20 (repealed 1985); the AG did not require translating those entries to register-of-deeds filings.
For registers of deeds, the opinion explained why they would see fewer 46A-10A-31 filings than the statute might have suggested. The mandatory filing reached only landowners whose drainage rights were not protected by a still-functioning pre-1985 district. Many of the affected ditches across South Dakota fell within the protected category and would not generate filings.
For lawyers advising landowners, the opinion provided a clear interpretive framework. The plain meaning of SDCL 46A-10A-8 (chapter applies only as outlined in 43) controlled even where it limited the apparent reach of 46A-10A-31. The In Re Cancellation of the Stabio Ditch Water Right case from the South Dakota Supreme Court supported reading the statutory scheme as a whole rather than in isolated pieces.
Common questions
Q: My drainage district was formed in 1925 and still operates. Do I have to file?
A: Under the 1991 AG opinion, no. If the district has functioned or made assessments in the three years before July 1, 1985, it is preserved under SDCL 46A-10A-43 and does not have to clear the 46A-10A-31 filing hurdle.
Q: Should the district file anyway, just to be safe?
A: The AG flagged that as a reasonable hedge, but not a legal requirement. A filing would head off any later argument that the district's drainage rights had been extinguished. The cost-benefit calculation depended on the district's situation.
Q: My drainage right is "natural" (the water just runs that way on its own). Do I file?
A: No. SDCL 46A-10A-31 specifically did not require filing for natural drainage rights. Filing was only for rights "arising from drainage which is natural with man-made modifications or entirely man-made."
Q: My drainage right is in a ditch but the old drainage district has dissolved. Do I file?
A: Yes, you should file under 46A-10A-31 to protect your right by the 1992 deadline, assuming the right is man-made or natural-with-modifications. The opinion did not cover dissolved districts, but the protection of 46A-10A-43 only ran while the district was alive.
Q: If the district files, who pays the cost?
A: The opinion did not require any filing, so it did not have to settle who pays. If a district run by county commissioners chose to file, the county auditor could file and recover costs through the assessment system. If a district run by trustees chose to file, the trustees would handle it. Individual landowners who chose to file outside the district would pay their own costs.
Q: Who counts as an "owner" for filing purposes?
A: SDCL 46A-10A-1(11) defines "owner." It can be either a "dominant" estate (the land whose drainage benefits from the ditch) or a "servient" estate (the land through which the ditch runs). Pre-1985 statutes had several ways the county commissioners could acquire ditches under SDCL 46A-10-17 (repealed), which complicates ownership analysis on old ditches.
Q: What does the Stabio case have to do with this?
A: In Re Cancellation of the Stabio Ditch Water Right, 417 N.W.2d 391 (S.D. 1987), articulated the principle that statutory schemes should be read as a whole, with each section's meaning informed by the others. The AG used that principle to read SDCL 46A-10A-31 alongside SDCL 46A-10A-43 and SDCL 46A-10A-8, rather than in isolation.
Q: What was the legislative intent behind preserving pre-1985 districts?
A: The opinion did not articulate it directly, but the practical answer was that many drainage districts had been functioning for decades, had recorded their rights under the old statutes, and were continuing to manage ditches. Forcing every old district to refile would have imposed substantial cost and complexity with no real benefit, since the rights were already on record in the county auditor's books.
Background and statutory framework
South Dakota's pre-1985 drainage law was found in SDCL chapters 46A-10 (county-commissioner-administered districts) and 46A-12 (trustee-administered districts). Both were repealed when the Legislature overhauled drainage law in 1985 and rewrote it as SDCL chapter 46A-10A. The new chapter assigned drainage powers primarily to county government and tightened the procedures for establishing new drainage rights and recording existing ones.
Two policy interests shaped the 1985 chapter. First, drainage rights can be vested property rights, and extinguishing them without notice would raise takings concerns. Second, the state wanted a complete, accurate registry of who claimed what drainage right where. The vested-rights filing requirement in SDCL 46A-10A-31, with its six-year window, was the compromise: give existing owners a chance to put their rights on the official record (register of deeds) before treating unfiled rights as abandoned. The 1991 Legislature extended that filing window to July 1, 1992 (an extra year), apparently because awareness of the filing requirement was uneven.
The preservation of pre-1985 drainage districts in SDCL 46A-10A-43 was a separate policy choice. Districts that were active in the three years before July 1, 1985 could continue under their old structure. They were not forced to reorganize under the new chapter, and they could dissolve only by majority vote at a general election. SDCL 46A-10A-8 set the corollary: the new chapter applies to drainage districts only as outlined in 46A-10A-43. The AG read that limitation literally, and concluded that the vested-rights filing requirement in 46A-10A-31 did not reach into preserved districts.
The "owner" definition in SDCL 46A-10A-1(11) became important if a district chose to file anyway. Under pre-1985 statutes (especially SDCL 46A-10-17), there were several ways the board of county commissioners could acquire title to the ditch itself. In some districts the county was the owner; in others, individual landowners were the dominant or servient estate. The filing duty, if undertaken, would fall on whoever held the property interest.
Citations and references
Statutes:
- SDCL 46A-10A-31 (vested drainage rights filing requirement, six-year window extended to July 1, 1992)
- SDCL 46A-10A-43 (preservation of pre-1985 drainage districts functioning within three years before July 1, 1985)
- SDCL 46A-10A-8 (chapter applies to drainage districts only as outlined in 46A-10A-43)
- SDCL 46A-10A-1(11) (definition of "owner" for filing purposes)
- SDCL 46A-10-20 (repealed 1985) (pre-1985 recording in county auditor's book)
- SDCL 46A-10-17 (repealed 1985) (county acquisition of ditches under pre-1985 statutes)
- SDCL 46A-10-26 (repealed 1985) (trustee powers equivalent to county commissioner powers)
Cases:
- In Re Cancellation of the Stabio Ditch Water Right, 417 N.W.2d 391 (S.D. 1987) (statutes read as a whole to determine legislative intent)
Source
Original opinion text
OFFICIAL OPINION NO. 91-14
Drainage district vested right filings
Dear Mr. Roth:
You have requested an official opinion from this office in regard to the following factual situation:
Hutchinson County had several drainage districts that were established during the 1910 to 1930 time period. Each drainage ditch was filed in the county auditor's office under the old law establishing these drainage ditches. These ditches run through several sections of land and affect several landowners. SDCL 46A-10A-31 as amended this past legislative session requires the recording of vested drainage rights by July 1, 1992, otherwise these drainage rights are extinguished. SDCL 46A-10A-43 allows drainage districts established three years prior to July 1, 1985 to continue in existence. Questions have arisen concerning whether drainage districts must record such rights and if so, the appropriate entity or person to file the vested drainage right, the drainage district, the individual landowners served by the ditches, or the county auditor.
Based on these facts, you have asked the following questions:
QUESTIONS:
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In spite of SDCL 46A-10A-43, are landowners in a drainage district established three (3) years prior to July 1, 1985, required to record their existing drainage rights of the drainage ditch under SDCL 46A-10-A-31, in order to become vested?
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If the answer to the first question is yes, is it the county auditor's duty to record the drainage district specifications with the Register of Deeds, or is it up to the individual landowner to record his or her drainage rights of the drainage ditch?
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If it is the duty of the county auditor to make the vested rights filing, who bears the cost of doing so, like recording costs and legal work?
IN RE QUESTION NO. 1:
In 1985 the Legislature undertook a revision of the state's drainage laws and placed a wide array of powers over the drainage of agricultural lands with county government. Because drainage rights can be vested property rights, the taking of which would require just compensation, a provision was included that would help the county identify what drainage rights were claimed in each county. SDCL 46A-10A-31 provides that a "drainage right lawfully acquired prior to July 1, 1985, arising from drainage which is natural with man-made modifications or entirely man-made" is deemed vested if the landowner records the right with the register of deeds within six years of July 1, 1985. The 1991 Legislature extended the filing deadline until July 1, 1992. No filing is necessary to protect a natural drainage right.
As part of that same 1985 legislation, it was provided that certain drainage districts established under pre-1985 statutes could continue to exist. SDCL 46A-10A-43 provides in pertinent part:
"Any drainage district established under the laws of this state that has functioned in its capacity as a drainage district within three years prior to July 1, 1985 or that has assessed real property in its capacity as a drainage district within three years prior to July 1, 1985 shall be allowed to continue in that status. . . ."
With reference to such districts, it was also provided that "[t]he provisions of this chapter may affect drainage districts only as outlined under provisions of 46A-10A-43." SDCL 46A-10A-8. Your first inquiry seeks to determine how these three statutes fit together. In short, is a drainage district which satisfies the requirements of SDCL 46A-10A-43 excused from filing vested rights pursuant to SDCL 46A-10A-31 by virtue of SDCL 46A-10A-8? In my opinion it is.
First it is important to identify what the Legislature meant by the term "drainage district." It appears that there are two types of situations covered. Under pre-1985 law, it was possible for the board of county commissioners to create (pursuant to landowner petition) a drainage district, construct the project, and serve as the governing board of the district. See generally, SDCL ch. 46A-10 (repealed 1985). It was also possible, at least after 1955, for the management of a drainage district to be handled by a board of trustees. See SDCL ch. 46A-12 (repealed 1985). The powers exercised by the trustees were the same as those exercised by the county commissioners. SDCL 46A-10-26 (repealed 1985).
If either type of drainage district was functioning as a district or was making assessments in the three years prior to July 1, 1985, then SDCL 46A-10A-43 provides that such a district can continue in that status. That section also allows the district to dissolve by majority vote at a general election. Assuming a qualified district has not elected to dissolve, the question becomes whether it or its landowners must comply with SDCL 46A-10A-31 in order to protect the drainage rights in the district.
Under pre-1985 drainage law, those drainage rights should be recorded and indexed in a book kept in the county auditor's office. SDCL 46A-10-20 (repealed 1985). If only SDCL 46A-10A-31 was to be considered, it would be my opinion that either the district, or the individual landowners, whichever was the "owner or owners of either a dominant or servient estate," should record the rights with the register of deeds as well. It is not permissible, however, to view that statute in isolation; legislative intent is to be garnered from the statutory scheme as a whole. In Re Cancellation of the Stabio Ditch Water Right, 417 N.W.2d 391 (S.D. 1987). When SDCL 46A-10A-43 is viewed in light of the last sentence of SDCL 46A-10A-8, it is my opinion that a drainage district is not required to make a filing under SDCL 46A-10A-31 in order to protect its vested drainage rights.
The pertinent part of SDCL 46A-10A-8 provides that SDCL ch. 46A-10A applies to drainage districts only to the extent set forth in SDCL 46A-10A-43. Giving the words used in those statutes their plain meaning, I am forced to conclude that the Legislature intended to leave a functioning drainage district unaffected by the 1985 drainage laws, including the requirement of filing vested rights. Thus, while the drainage district may want to comply with SDCL 46A-10A-31 to avoid any possible challenge, it is my opinion that it is not required to do so. My answer to your first question is NO.
IN RE QUESTIONS NO. 2 AND 3:
In light of my answer to your first question, it is not necessary to address your last two inquiries. I would simply point out that should the district wish to make a filing under SDCL 46A-10A-31, it should be the "owner or owners of either a dominant or servient estate" who should make the filing. "Owner" is defined at SDCL 46A-10A-1(11). I note that there was a variety of ways in which the board of county commissioners could acquire ditches under pre-1985 drainage statutes. SDCL 46A-10-17 (repealed). In cases where the district is the "owner," it appears to be appropriate for the county auditor to make the filing, and recoup the costs through the assessment system; if the district has trustees, I assume filing would be their obligation. In instances where the district is not the "owner," or chooses not to make a filing, the individual landowners may choose to file, at their own expense, in case the district someday decides to dissolve.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
MB:HHD:do