# Title 24 — Highways, Bridges, and Ferries

## Chapter 24-07 — Opening and Vacating Highways

### § 24-07-01. Public roads by prescription.

All public roads and highways within this state which have been or which shall be open and
in use as such, during twenty successive years, hereby are declared to be public roads or
highways and confirmed and established as such whether the same have been laid out,
established, and opened lawfully or not.
### § 24-07-02. Established roads are public highways.

Every road laid out by the proper authorities, as provided for in this chapter, from the laying
out of which no appeal has been taken within the time limited for taking such appeal, hereby is
declared a public highway to all intents and purposes, and all persons having refused or
neglected to take an appeal, as provided for in this chapter, are debarred forever from any
further redress.
### § 24-07-03. Section lines considered public roads open for public travel - Closing same

under certain conditions.
In all townships in this state, outside the limits of incorporated cities, and outside platted
townsites, additions, or subdivisions recorded pursuant to sections 40-50.1-01 through
section lines are considered public roads open for public travel to the width of thirty-three feet
[10.06 meters] on each side of the section lines.
The board of county commissioners, if petitioned by a person having an interest in the
adjoining land or a portion thereof, after public hearing and a finding by the commissioners of
public benefit, may close section lines or portions thereof which are not used for ten years, are
not traveled due to natural obstacles or difficulty of terrain, are not required due to readily
accessible alternate routes of travel, or are intersected by interstate highways causing the
section line to be a deadend, providing the closing of the dead-end section line does not deprive
adjacent landowners access to the landowners' property. After the section lines are closed, they
may be used to the benefit of the adjacent landowners. However, survey or property reference
monuments may not be disturbed, removed, or destroyed. If drainage is interfered with due to
the farming operations, alternate means of drainage must be provided for by the landowners or
tenants farming the lands.
### § 24-07-03.1. Improvement of section line by landowner.

A person having a surface interest in a parcel of land connected by a section line to another
parcel of land in which that person has a surface interest or to a highway may petition the board
of county commissioners in an unorganized township or the board of township supervisors in an
organized township to authorize the petitioner to improve the section line or a portion of the
section line for the purpose of travel for agricultural purposes. The petition may be approved if
the section line cannot be traveled due to natural obstacles or difficulty of terrain and if the
petitioner does not have a readily accessible alternative route of travel to the parcel of land. The
petitioner must improve the section line or a portion of the section line at the petitioner's
expense.
### § 24-07-04. Jurisdiction of proceedings to open or vacate highway.

Except as otherwise provided in this title, all proceedings for the opening, vacating, or
changing of a highway outside of the limits of an incorporated city, including the acquisition of
right of way when necessary, must be under the charge and in the name of:
1. The board of county commissioners, if the road is in territory not organized into a civil
township.
2. The board of township supervisors of an organized township.
3. The board of county commissioners of each county in case the road is between or in
two or more counties.

4. The board of township supervisors of each organized civil township in which any part
of the road is situated if the road is situated between two civil townships or in more
than one civil township.
5. The board of township supervisors of each organized township and of the board of
county commissioners in case the road is situated partly in an organized township and
partly in an unorganized township.
6. The board of county commissioners in any case arising under subsection 4 when the
boards of township supervisors of the respective civil townships cannot agree or will
not take action on petition so to do.
### § 24-07-05. Petition for laying out, altering, or discontinuing roads.

The board having jurisdiction as provided in this chapter may alter or discontinue any road
or lay out any new road upon the petition of not less than six qualified electors who have an
ownership interest in real estate in the vicinity of the road to be altered, discontinued, or laid out.
Said petition must set forth in writing a description of the road and what part thereof is to be
altered or discontinued, and if for a new road, the names of the owners of the land, if known,
over which the road is to pass, the point at which it is to commence, its general course, and the
point where it is to terminate.
### § 24-07-06. Public road may be established to give access to highway.

Whenever any tract of land is surveyed or sold in tracts less than the original subdivision as
established by the government survey thereof, so that any part thereof does not touch upon a
public road so as to allow the owner of such tract access to a public highway, the board of
county commissioners or board of township supervisors, upon petition of such owner, may open
a public road to gain access to any such tract or tracts when in the judgment of such board such
public road is necessary and that it is of sufficient benefit to the county or township as a whole,
but no such public road may exceed two rods [10.06 meters] in width unless in the judgment of
such board a roadway of such width is not sufficient to accommodate the travel thereon.
### § 24-07-07. Survey of proposed road - Deviation from petition.

Whenever a petition is received by the board having jurisdiction, requiring a new road to be
laid out, said board, when in its judgment circumstances warrant the same, shall employ a
competent surveyor to survey and lay out said road, and such survey must include a line of
levels to be run over the laid out road and a grade line to be established thereon, such grade
line not to be greater than ten percent when completed. In laying out said road the board may
deviate or depart, or may direct a deviation or departure, from the road described in the petition
when it is practicable and less expensive to do so in order to obtain a grade line not exceeding
ten percent. Such surveyor shall prepare a plan and profile of the surveyor's survey and shall
file a copy of the same with the township clerk or the county auditor, as the case may be, and
the board having jurisdiction shall require that such road, when completed, must conform to the
plan and profile of the surveyor as filed with the township clerk or county auditor.
### § 24-07-08. State land subject to chapter.

The provisions of this chapter apply to all lands owned by the state or any institution thereof,
or held by virtue of any contract with the state, and notice of the altering, laying out, or
discontinuing of any cartway or highway pursuant to this chapter must be served by registered
or certified mail upon the board of university and school lands or other state agency having the
control of the land affected, not less than thirty days prior to the taking of action by such board in
regard to altering, laying out, or discontinuing such cartway or highway.
### § 24-07-09. Copy of petition to be posted.

The petitioners for the alteration or discontinuance of any road, or for laying out any new
road, shall cause copies of their petition to be posted in three of the most public places in the
county or township having jurisdiction thereof, twenty days before any action is had in relation
thereto.

### § 24-07-10. Notice to all parties to be given - What deemed to be notices.

Within thirty days after the board having jurisdiction receives a petition in compliance with
provisions of this chapter for laying out, altering, or discontinuing any highway, it shall make out
a notice and fix therein a time and place at which it will meet and decide upon such application,
and the applicant, ten days previous to the time so fixed, shall cause such notice to be given to
all occupants of the land through which such highway may pass. Such notice must be served
personally or by copy left at the abode of such occupant. The board also shall cause copies of
such notice to be posted in three public places in said county or township at least ten days
previous to such meeting. Every such notice must specify, as nearly as practicable, the highway
proposed to be laid out, altered, or discontinued, and the tract of land through which the same
may pass.
### § 24-07-11. When notice dispensed with.

When at least seventy percent of the qualified electors who are owners or part owners of
land bordering on any existing or proposed road or highway have signed the original petition
and thereby released all their claims to damages arising from altering, discontinuing, or laying
out such road or highway, it is not necessary to post copies of the petition as provided for in
section 24-07-09, nor to post notices or serve notices as provided for in section 24-07-10,
except that the notices must be served personally or left at the abode of such occupants as may
have failed to sign the petition and whose land borders on the road or highway proposed to be
opened, altered, or discontinued. The general knowledge, and the fact, that seventy percent of
the qualified electors have signed the original petition in compliance with this provision must be
deemed sufficient notice to all concerned and for all intents and purposes.
### § 24-07-12. Petition must be filed with county auditor.

If the petition is for the opening, altering, or discontinuing of a road or highway between two
or more counties, it must be filed with the auditor of one of the counties affected at least fifteen
days before any action is taken, and the auditor immediately shall transmit certified copies of
such petition to the auditors of all other counties to be affected by such changing, discontinuing,
or laying out of roads or highways. Each county auditor shall lay such petition before the board
of county commissioners of the auditor's county at its next meeting for action in the matter as
provided in this chapter.
### § 24-07-13. Examination of proposed highway.

The board having jurisdiction, upon being satisfied that copies of the petition have been
posted and notices have been served and posted as required, or that at least seventy percent of
the qualified electors who are owners of lands affected have signed the original petition and that
notices have been served personally or left at the abode of those who may have failed to sign
the original petition, proof of which shall be shown by affidavit, shall proceed to examine the
proposed highway and shall hear any reasons for or against the laying out, altering, or
discontinuing of the same, and shall decide upon the application as it deems proper.
### § 24-07-14. Proceedings when road is laid out, altered, or discontinued.

Whenever the board of county commissioners or the board of township supervisors shall lay
out, alter, or discontinue any highway, it shall cause a survey thereof to be made when
necessary, and it shall make out an accurate description of the highway so altered,
discontinued, or laid out, and shall incorporate the same in an order to be signed by the
members of such board, and shall cause such order, together with all the petitions and affidavits
of service and posting of notices to be filed in the office of the county auditor, if by the board of
county commissioners, and in the office of the township clerk, if by the board of township
supervisors. The auditor or clerk shall note the time of filing the same. On the refusal of either
board to lay out, alter, or discontinue a road, it shall note the fact on the back of the petition and
file the same as aforesaid. All orders, petitions, and affidavits, together with the award of
damages, must be made out and filed within five days after the date of the order for laying out,
altering, or discontinuing a highway. But the county auditor or township clerk may not record

such order within thirty days, nor until a final decision is had, and not then unless such order is
confirmed. When the order, together with the award, has been recorded by the county auditor or
township clerk, as the case may require, the same must be filed in the office of the county
auditor. In case the board having jurisdiction fails to file such order within twenty days, it must be
deemed to have decided against such application.
### § 24-07-15. Order or certified copy - Competent evidence.

The order laying out, altering, or discontinuing any highway, or a copy of the record duly
certified by the county auditor or township clerk, as each case may require, must be received in
all courts as competent evidence of the facts therein contained and must be prima facie
evidence of the regularity of the proceedings prior to the making of such order, except in cases
of appeal, when such appeal has been taken within the time limited in this chapter.
### § 24-07-16. Damages - How ascertained.

The damages sustained by reason of laying out, altering, or discontinuing any road may be
ascertained by the agreement of the owners and the board of county commissioners or the
board of township supervisors, as the case may be, and unless such agreement is made, or the
owners in writing shall release all claim to damages, the same must be assessed in the manner
herein prescribed before the road is opened, worked, or used. Every agreement and release
must be filed in the township clerk's office, when with a township, and in the county auditor's
office, when with a county, and precludes such owners of land forever from all further claim for
damages. In case the board and the owners of land claiming damages cannot agree, or if the
owner of any land through which any highway shall be laid out, altered, or discontinued, is
unknown, the board in its award of damages shall specify the amount of damages awarded to
each such owner, giving a brief description of such parcel of land in the award. The board
having jurisdiction shall assess the damages at what it deems just and right to each individual
claimant with whom it cannot agree. The board of township supervisors shall deposit a
statement of the amount of damages assessed with the township clerk, and the board of county
commissioners shall deposit the same with the county auditor. The auditor or clerk shall note the
time of filing the same. The board in assessing damages shall estimate the advantages and
benefits the new road or alteration of an old one will confer on the claimant for the same as well
as the disadvantages. Any person living on land belonging to the United States who has made
that person's declaratory statement for the same in the proper land office, for all the purposes of
this chapter, must be considered the owner of such lands.
### § 24-07-17. When damages not allowed.

Except as otherwise provided in this chapter, no damages may be assessed or allowed to
any person, corporation, or limited liability company by reason of the laying out of any new road
or the altering of any old one, if the title of the land on which such road passes was vested in the
state or the United States at the time of the location of such road.
### § 24-07-18. Determination final for one year.

The determination of a board of county commissioners, or a board of township supervisors
in refusing to lay out, alter, or discontinue any highway, is final, unless such determination is
appealed from as is provided in this chapter, for the term of one year after the filing of such
order or determination in the county auditor's or township clerk's office, as the case may be, and
no application for laying out, altering, or discontinuing any such highway again may be acted
upon by such board within said period of one year, and in case the determination of any such
board in laying out, altering, or discontinuing any highway is appealed from, as provided in this
chapter, and such determination is reversed on appeal, the said board may not, within one year
after the making of the determination so reversed on appeal, act again upon an application to
lay out, alter, or discontinue any such highway.

### § 24-07-19. Notice to party to remove fences.

Whenever any public road has been laid out through any enclosed, cultivated, or improved
lands, pursuant to this chapter and the decision of the board laying out the road has not been
appealed from, the board shall give the owner or occupant of the land through which the road is
laid out thirty days' written notice to remove the owner's or occupant's fences. If the owner does
not remove the fences within thirty days after the notice, the board shall cause the fences to be
removed and shall direct the road to be opened and worked, but no enclosure may be ordered
opened between April first and October first.
### § 24-07-20. Notice to overseer of highways.

When any highway is to be changed or laid out, the county auditor or clerk of the township,
as the case may be, shall notify the overseer of highways of each district affected and shall
furnish the overseer of highways with a certified copy of the proceedings of the board.
### § 24-07-21. Repair of highways across railroads, canals, or ditches.

Whenever highways are laid out across railroads, canals, or ditches on public lands, the
owners at their own expense shall so repair their railroads, canals, or ditches that the public
highway may cross the same without damage or delay, and when the right of way for a public
highway is obtained through the judgment of any court, over any railroad, canal, or ditch, no
damages must be awarded for the simple right to cross the same.
### § 24-07-22. Appeals - When and where taken.

Any person who feels aggrieved by any determination or award of damages made by the
board having jurisdiction, either in laying out, altering, or discontinuing, or in refusing to lay out,
alter, or discontinue, any highway or cartway, within thirty days after the filing of such
determination or award of damages, as provided in this chapter, may appeal therefrom to the
district court in accordance with the procedure provided in section 28-34-01.
### § 24-07-23. Appeals - How taken - Notice - Bond.

The appeal provided for in section 24-07-22 must be taken by the service and filing of a
notice of appeal and an undertaking for costs. The notice of appeal must specify:
1. The court to which the appeal is taken.
2. Whether the appeal is taken in relation to damages assessed or in relation to the
laying out, altering, or discontinuing, or to the refusal to lay out, alter, or discontinue
any highway.
3. Whether the appeal is taken from the whole of the order of the board or only from a
part thereof, and if from a part only, then what part.
4. The grounds upon which the appeal is taken.
The undertaking must be made in favor of the county or township, as the case may be, and
must be conditioned for the payment of all costs that may arise upon such appeal if the
determination appealed from is affirmed.
### § 24-07-24. Appeals - Filing - Approval of undertaking - Service.

The notice of appeal and undertaking to the district court must be filed with the clerk of the
court and the undertaking must be approved by the judge thereof or by the county auditor. The
notice of appeal must be served upon some member of the board by which the determination
was made.
### § 24-07-25. Trial in county court.

Repealed by S.L. 1991, ch. 326, § 203.
### § 24-07-26. Trial in district court.

Upon an appeal to the district court, the issues must be submitted to a jury unless the
parties otherwise agree, and must be tried as other cases are tried in district court upon appeal.

### § 24-07-27. Scope of review upon appeal.

An appeal as provided for in this chapter brings before the appellate court the propriety of
the amount of damages allowed and all matters referred to in the notice of appeal. The court or
jury, as the case may be, shall reassess the damages. The rules for ascertaining and fixing the
damages must be based upon the principles which the board was required to adopt in originally
determining the same.
### § 24-07-28. Judgment - Copy filed.

When judgment has been entered upon an appeal taken as provided in this chapter, the
clerk of the district court shall file with the county auditor or clerk of the township a certified copy
of the judgment.
### § 24-07-29. Costs of appeal.

If the determination of the board appealed from is affirmed, or if the amount of damages
allowed is reduced, the party appealing shall pay all costs and disbursements incurred in the
appellate court, but if the amount of damages allowed is increased, or if the determination is
altered, modified, or reversed, otherwise than as to the amount of damages, such costs and
disbursements must be paid by the township or county, as the case may be. Said costs and
disbursements must be taxed as in other cases in the appellate court, and judgment entered
therefor in like manner.
### § 24-07-30. When appeal sustained - Duty of the board.

When an appeal has been made from the determination of any board of township
supervisors or board of county commissioners, and such determination has been reversed or
altered, the board from whose determination such appeal was taken shall proceed to lay out,
alter, or discontinue such highway, in conformity with the decision of such appeal, and the
proceedings thereon must be the same as if the board originally had determined to lay out, alter,
or discontinue such highway. The amount of damages finally determined and awarded by the
board or by the court or jury, together with all the charges of officers and other persons
necessarily employed in laying out, altering, or discontinuing any township or county road, must
be audited by the board of county commissioners or board of township supervisors, as the case
may be, specifying the amount of charges and damages due each individual, and the respective
amounts must be certified by said board and by it deposited with the county auditor or township
clerk and paid by the county or township, as the case may be. Before any road may be opened
or used, warrants of the county or township, as the case may be, equal to the damages
assessed to individuals, must be issued and deposited with the county auditor or township clerk,
as the case may be, for the use and benefit of said individuals, and must be delivered to them
on demand. The issuing and depositing of said warrants must be deemed to be sufficient
security for the payment of said damages. In no case may a township be compelled to pay any
damages that may be awarded in laying out, altering, or discontinuing any county road.
### § 24-07-31. Nonuse for ten years will vacate highway.

Any road or part thereof laid out by authority of a board of county commissioners or a board
of township supervisors, and not opened to public use within ten years from the time when it
was laid out, or which thereafter is abandoned and not used for ten years, hereby is declared
vacant.
### § 24-07-32. Highways on county and township lines.

A public highway established on a county or township line, or a public highway laid out
parallel and adjacent to a county or township line, where such line is occupied by a railroad or
other obstruction, must be opened, established, and repaired by the supervisors of the proper
road districts on each side thereof.

### § 24-07-33. Public lands - Damages.

When any person acquires the title to government land over which any road has been or
hereafter may be laid out, subsequent to the laying out of such road, the person so acquiring
such title, within three months after the receipt of the person's patent therefor, shall assert the
person's claim for damages in the manner provided in this chapter in case of locating highways,
and such roads must remain and be public highways, but the person's damages, if any, must be
paid, and in case of a failure to assert the person's claim for damages within the time aforesaid,
the person thereafter is barred from asserting such claim.
### § 24-07-34. Roads on lines between township and city.

Whenever the board of supervisors of any township and the governing body of any
incorporated city shall receive a petition praying for the location of a road or for the altering or
discontinuing of any road on the line between such township and such city, such road may be
laid out, altered, or discontinued by the action of both boards. The provisions of this chapter
applicable to the laying out, altering, or discontinuing of a road on the line between two
townships are applicable to a road on the line between any township and an incorporated city.
### § 24-07-35. Designation of minimum maintenance road.

A board having jurisdiction as described in this chapter, and the governing body of a city,
may designate a road under its jurisdiction as a minimum maintenance road in accordance with
sections 24-07-35 through 24-07-37. The designation may be made only if the board or
governing body determines that the road to be so designated is used only occasionally or
intermittently for passenger and commercial travel. Further, the designation cannot be made if
the road is used as a schoolbus route, mail route, or as the only access to any existing
residence. In its action designating the minimum maintenance road, the board or governing
body shall identify the beginning and end of the road. The board or governing body shall notify
each adjoining political subdivision of a designation made under this section. If a road runs
along the boundary of political subdivisions, the designation as a minimum maintenance road is
not applicable unless the board or governing body of each adjoining political subdivision agrees
with the designation.
### § 24-07-36. Required signs on minimum maintenance roads.

The body making a designation of a minimum maintenance road shall post signs at the
beginning of the road and at regular intervals along the road. The signs must conform to
standards adopted by the director by rule. If the signs are properly posted, that fact is prima
facie evidence that adequate notice of the road's status as a minimum maintenance road has
been given to the public.
### § 24-07-37. Limitations on designation of minimum maintenance roads.

A road is not eligible for designation as a minimum maintenance road if federal highway aid
to this state would be reduced as a result of that designation. A road is not eligible for that
designation if additional right of way or easement by eminent domain is required for constructing
or designating the road as a minimum maintenance road, unless the consent of the landowner
is given or the designation is necessary for drainage or public safety.
