# Title 40 — Municipal Government

## Chapter 40-39 — Opening and Vacating Streets, Alleys, and Public Places

### § 40-39-01. Survey, plat, and estimate made by city engineer.

Whenever the governing body of a municipality shall deem it necessary to open, lay out,
widen, or enlarge any street, alley, or public place within the municipality, it shall cause an
accurate survey and plat to be made by the city engineer, county surveyor, or other competent
civil engineer, with an estimate of the probable cost of the improvement. Such engineer or
surveyor shall file the survey, plat, and estimate in the office of the city auditor and shall retain
an office copy.
### § 40-39-02. Taking private property by purchase or eminent domain - Special

assessments levied - Limitation on general tax.
If it is necessary to take private property in order to open, lay out, widen, or enlarge any
street or alley in any incorporated municipality, it shall be done by purchase or, subject to
chapter 32-15, by the exercise of the right of eminent domain. When property is purchased or a
judgment for damages is entered for property taken for any such improvement, the governing
body shall certify the purchase or judgment to the special assessment commission, which shall
levy special assessments upon the property benefited to pay such judgment or the purchase
price. Not more than three-fourths of the purchase price or judgment may be paid by the levy of
a general tax upon all the taxable property in a city.
### § 40-39-03. Grades of streets, alleys, and sidewalks - Established - Record - Changing -

Liability.
The governing body, by ordinance, may establish the grade of all streets, alleys, and
sidewalks in the municipality as the convenience of its inhabitants may require. A record of the
grades, together with a profile thereof, shall be kept in the office of the city engineer, or of the
city auditor, if the city has no engineer. If the municipality changes the grade of any street after it
has been established, it shall be liable to the abutting property owners for any damage they may
sustain by reason of any permanent improvements made by them to conform to the grade as
first established.
### § 40-39-04. Vacation of streets and alleys where sewers, water mains, pipes, and lines

located - Conditions.
No public grounds, streets, alleys, or parts thereof over, under, or through which have been
constructed, lengthwise, any sewers, water mains, gas, or other pipes, or telephone, electric, or
cable television lines, of the municipality or the municipality's grantees of the right of way
therefor, may be vacated unless the sewers, mains, pipes, or lines have been abandoned and
are not in use, or unless the grantee consents thereto, or unless perpetual easements for the
maintenance of the sewers, water mains, gas, or other pipes, or telephone, electric, or cable
television lines have been given. Any vacation of areas within which are located electric
facilities, whether underground or aboveground, is subject to the continued right of location of
such electric facilities in the vacated areas.
### § 40-39-05. Petition for vacation of streets, alleys, or public grounds - Contents -

Verification.
No public grounds, streets, alleys, or parts thereof within a municipality shall be vacated or
discontinued by the governing body except on a petition signed by all of the owners of the
property adjoining the plat to be vacated. Such petition shall set forth the facts and reasons for
such vacation, shall be accompanied by a plat of such public grounds, streets, or alleys
proposed to be vacated, and shall be verified by the oath of at least one petitioner.
### § 40-39-06. Petition filed with city auditor - Notice published - Contents of notice.

If the governing body finds that the petition for vacation is in proper form and contains the
requisite signatures, and if it deems it expedient to consider such petition, it shall order the

petition to be filed with the city auditor who shall give notice by publication in the official
newspaper of the municipality at least once each week for four weeks. The notice shall state
that a petition has been filed and the object thereof, and that it will be heard and considered by
the governing body or a committee thereof on a certain specified day which shall be not less
than thirty days after the first publication of the notice.
### § 40-39-07. Hearing on petition - Passage of resolution declaring vacation by governing

body.
The governing body, or such committee as may be appointed by it, shall investigate and
consider the matter set forth in the petition specified in section 40-39-05 and, at the time and
place specified in the notice, shall hear the testimony and evidence of persons interested. After
hearing the testimony and evidence or upon the report of the committee favoring the granting of
the petition, the governing body, by a resolution passed by a two-thirds vote of all its members,
may declare the public grounds, streets, alleys, or highways described in the petition vacated
upon such terms and conditions as it shall deem just and reasonable.
### § 40-39-08. Resolution to be published, filed, and recorded - Effect.

Before the resolution declaring the vacation of a public ground, street, or alley shall go into
effect, it shall be published as in the case of ordinances. A transcript of the resolution, duly
certified by the city auditor, shall be filed for record and duly recorded in the office of the
recorder of the county in which the municipality is situated, and such resolution thereafter shall
have the effect of conveying to the abutting property owners all of the right, title, and interest of
the municipality to the property vacated.
### § 40-39-09. Expenses for vacating streets, alleys, and public ways - Deposit required.

All expenses incurred in vacating any public grounds, street, or alley shall be paid by the
petitioners, who shall deposit with the city auditor such sum as may be necessary before any
such expense is incurred. The amount to be deposited shall be determined by the governing
body, and any part thereof not used for such expenses shall be returned.
### § 40-39-10. Aggrieved person may appeal to district court.

Any person aggrieved by the decision of the governing body granting the vacation of any
public grounds, street, or alley, within fifteen days after the publication of the resolution, may
appeal to the district court of the county in accordance with the procedure provided in section
### § 28-34-01. The judgment of the court therein is final.

