CHAPTER 24-01A Legislative Intent and Definitions [Repealed]

[Repealed by omission from this code]

CHAPTER 24-01 State Highway System

24-01-01. Declaration of legislative intent.

Adequate roads and streets provide for the free flow of traffic; result in low cost of motor vehicle operation; protect the health and safety of the citizens of the state; increase property value; and generally promote economic and social progress of the state. Therefore, the legislative assembly hereby determines and declares that an adequate and integrated system of roads and streets is essential to the general welfare of the state of North Dakota.

In designating the highway systems of this state, as hereinafter provided, the legislative assembly places a high degree of trust in the hands of those officials whose duty it is, within the limits of available funds, to plan, develop, operate, maintain, and protect the highway facilities of this state, for present as well as for future use. To this end, it is the intent of the legislative assembly to make the director of the department, and the department acting through the director, custodian of the state highway system and to provide sufficiently broad authority to enable the director of the department to function adequately and efficiently in all areas of appropriate jurisdiction with specific details to be determined by reasonable rules and regulations which may be promulgated by the director, subject to the limitations of the constitution and the legislative mandate hereinafter imposed.

It is recognized that the efficient management, operation, and control of our county roads, city streets, and other public thoroughfares are likewise a matter of vital public interest. Therefore, it is the further intent of the legislative assembly to bestow upon the boards of county commissioners similar authority with respect to the county road system and to local officials with respect to the roads under their jurisdiction.

While it is necessary to fix responsibilities for the construction, maintenance, and operation of the several systems of highways, it is intended that the state of North Dakota shall have an integrated system of all roads and streets to provide safe and efficient highway transportation throughout the state. To this end, it is the intent of the legislative assembly to give broad authority and definite responsibility to the director of the department and to the boards of county commissioners so that working together, free from political pressure and local interests, they may provide for the state an integrated system of state and county highways built upon a basis of sound engineering with full regard to the interest and well-being of the state as a whole.

Providing adequate public highway facilities, including rural and urban links, is hereby declared to be a proper public use and purpose and the legislative assembly hereby determines and declares that chapter 177 of the Session Laws of 1953 is necessary for the immediate preservation of the public peace, health, and safety, for the promotion of the general welfare, and as a contribution to the national defense.

Source:

S.L. 1953, ch. 177, § 1; R.C. 1943, 1957 Supp., § 24-A0101.

Cross-References.

Integrated highway system, declaration of legislative intent, see § 39-01-01.1.

Notes to Decisions

Delegation of Director’s Jurisdiction.

The director of the department of transportation is authorized to delegate a portion of the department’s exclusive jurisdiction and control through cooperative agreements. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

Law Reviews.

Highways, Environmental Legislation, and Judicial Review: The Changing Notion of Necessity, 50 N.D. L. Rev. 437.

Summary of significant decisions rendered by North Dakota Supreme Court in 1988 relating to highways, 64 N.D. L. Rev. 173 (1988).

24-01-01.1. Definition of words and phrases.

The following words and phrases when used in this title shall, for the purposes of this title, have the meanings respectively ascribed to them in this chapter:

  1. “Abandonment” means cessation of use of right of way or activity thereon with no intention to reclaim or use again for highway purposes.
  2. “Acquisition or taking” means the process of obtaining right of way.
  3. “Arterial highway” means a general term denoting a highway primarily for through traffic, usually on a continuous route.
  4. “Belt highway” means an arterial highway for carrying traffic partially or entirely around an urban area or portion thereof.
  5. “Capacity” means the ability of a roadway to accommodate traffic.
  6. “Commission” means the public service commission of the state of North Dakota.
  7. “Commissioner” means the director of the department of transportation of this state, acting directly or through authorized agents as provided in section 24-02-01.3.
  8. “Consequential damages” means loss in value of a parcel, no portion of which is acquired, resulting from a highway improvement.
  9. “Controlled-access facility” means a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a controlled right or easement of access, light, air, or view by reason of the fact that their property abuts upon such controlled-access facility or for any other reason.
  10. “County road system” means the system of secondary highways designated by the county officials, the responsibility for which is lodged with the counties.
  11. “Department” means the department of transportation of this state as provided by section 24-02-01.1.
  12. “Direct compensation” means payment for land or interest in land and improvements actually acquired for highway purposes.
  13. “Director” means the director of the department of transportation of this state, acting directly or through authorized agents as provided in section 24-02-01.3.
  14. “Divided highway” means a highway with separated roadways for traffic in opposite directions.
  15. “Easement” means a right acquired by public authority to use or control property for a designated highway purpose.
  16. “Employee compensation” includes vacation and sick leave.
  17. “Expressway” means a divided arterial highway for through traffic with full or partial control of access and generally with grade separations at intersections.
  18. “Fee simple” means an absolute estate or ownership in property including unlimited power of alienation, except as to any and all lands acquired or taken for highway, road, or street purposes. Where lands are taken for such purposes, “fee simple” shall not be deemed to include any oil, gas, or fluid mineral rights.
  19. “Freeway” means an expressway with full control of access.
  20. “Frontage street or road” means a local street or road auxiliary to and located on the side of an arterial highway for service to abutting property and adjacent areas and for control of access.
  21. “Grade crossing” means the intersection of a public highway and of the track or tracks of any railroad, however operated, on the same plane or level, other than a street railway within the limits of a city.
  22. “Highway, street, or road” means a general term denoting a public way for purposes of vehicular travel, including the entire area within the right of way. A highway in a rural area may be called a “road”, while a highway in an urban area may be called a “street”.
  23. “Intersection” means a general term denoting the area where two or more highways join or cross.
  24. “Interstate system” or “interstate highway system” means that part of the state highway system designated as the North Dakota portion of the national system of interstate and defense highways as provided for in Public Law 85-767 [23 U.S.C. 101 et seq.].
  25. “Local street or local road” means a street or road primarily for access to residence, business, or other abutting property.
  26. “Major street or major highway” means an arterial highway with intersections at grade and direct access to abutting property, and on which geometric design and traffic control measures are used to expedite the safe movement of through traffic.
  27. “Market value” means the highest price for which property can be sold in the open market by a willing seller to a willing purchaser, neither acting under compulsion and both exercising reasonable judgment.
  28. “Median” means the portion of a divided highway separating the traveled ways for traffic in opposite directions.
  29. “Municipal corporation or municipality” means all cities organized under the laws of this state, but does not include any other political subdivisions.
  30. “Outer separation” means the portion of an arterial highway between the traveled ways of a roadway for through traffic and a frontage street or road.
  31. “Partial taking” means the acquisition of a parcel of property.
  32. “Person” means any person, firm, partnership, association, corporation, limited liability company, organization, or business trust.
  33. “Radial highway” means an arterial highway leading to or from an urban center.
  34. “Remainder” means the portion of a parcel retained by the owner after a part of such parcel has been acquired.
  35. “Remnant” means a remainder so small or irregular that it usually has little or no economic value to the owner.
  36. “Right of access” means the right of ingress to a highway from abutting land and egress from a highway to abutting land.
  37. “Right of survey entry” means the right to enter property temporarily to make surveys and investigations for proposed highway improvements.
  38. “Right of way” means a general term denoting land, property, or interest therein, acquired for or devoted to highway purposes and shall include, but not be limited to publicly owned and controlled rest and recreation areas, sanitary facilities reasonably necessary to accommodate the traveling public, and tracts of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to the state highway system.
  39. “Right-of-way appraisal” means a determination of the market value of property including damages, if any, as of a specified date, resulting from an analysis of facts.
  40. “Right-of-way estimate” means an approximation of the market value of property including damages, if any, in advance of an appraisal.
  41. “Roadside” means a general term denoting the area adjoining the outer edge of the roadway. Extensive areas between the roadways of a divided highway may also be considered roadside.
  42. “Roadway” means in general, the portion of a highway, including shoulders, for vehicular use. In construction specifications, the portion of a highway within limits of construction.
  43. “Severance damages” means loss in value of the remainder of a parcel resulting from an acquisition.
  44. “Shoulder” means the portion of the roadway contiguous with the traveled way for accommodation of stopped vehicles, for emergency use, and for lateral support of base and surface courses.
  45. “State highway system” means the system of state principal roads designated by the director of the department, the responsibility for which is lodged in the department.
  46. “Through street or through highway” means every highway or portion thereof on which vehicular traffic is given preferential right of way, and at the entrances to which vehicular traffic from intersecting highways is required by law to yield right of way to vehicles on such through highways and in obedience to either a stop sign or yield sign, when such signs are erected by law.
  47. “Traffic lane” means the portion of the traveled way for the movement of a single line of vehicles.
  48. “Traveled way” means the portion of the roadway for the movement of vehicles, exclusive of shoulders and auxiliary lanes.

Source:

S.L. 1953, ch. 177, § 2; 1957, ch. 187, § 1; R.C. 1943, 1957 Supp., § 24-A0102; S.L. 1959, ch. 235, § 4; 1963, ch. 211, § 1; 1967, ch. 291, § 18; 1967, ch. 323, § 77; 1969, ch. 343, § 2; 1975, ch. 236, § 1; 1989, ch. 72, § 8; 1991, ch. 54, § 9; 1991, ch. 287, § 1; 1991, ch. 288, § 1; 1993, ch. 54, § 106.

Cross-References.

Word defined by statute always has same meaning, see § 1-01-09.

Notes to Decisions

Reasonable Means of Access.

In situations where restrictions and regulations have been imposed upon the access of abutting owners, the question becomes one of whether, under the existing facts and circumstances, a reasonable means of access remains. If the abutter has free and convenient access to his property, and his means of ingress and egress are not substantially interfered with, he has no cause of complaint. Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 1991 N.D. LEXIS 123 (N.D. 1991).

Loss of traffic, loss of business, and circuity of travel are factors to be considered in determining the reasonableness of the remaining access to and from an abutting roadway. Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 1991 N.D. LEXIS 123 (N.D. 1991).

Right of Access.

The “right of access” is a private right which entitles the abutting land owner just compensation if that right is impaired or destroyed. Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 1991 N.D. LEXIS 123 (N.D. 1991).

A property owner has a right of access to abutting highways and streets. Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 1991 N.D. LEXIS 123 (N.D. 1991).

Width of Public Highways.

The definition of “highway, street, or road” and “right of way”, together with section 24-01-01.2, clearly indicates that public highways are not limited in width to the actual traveled surface of the roadway. Keidel v. Rask, 290 N.W.2d 255, 1980 N.D. LEXIS 201 (N.D. 1980).

24-01-01.2. State highway system — Mileage.

The state highway system may not exceed seven percent of the entire road mileage of the state, whether such roads are township, county, or state roads, which may be functionally classified as to service, and in no case may such highway system exceed seven thousand seven hundred miles [12391.95 kilometers] in length.

Source:

S.L. 1927, ch. 159, § 1; 1931, ch. 156, § 1; 1933, ch. 127, § 1; R.C. 1943, § 24-0101; S.L. 1975, ch. 236, § 2.

Notes to Decisions

State Highway System.

All public roads are public highways, but only the roads designated by the highway commissioner as such are part of the state highway system. McKenzie County v. Lamb, 70 N.D. 782, 298 N.W. 241, 1941 N.D. LEXIS 227 (N.D. 1941).

Width of Public Highways.

The definition of “highway, street, or road” and “right of way” in section 24-01-01.1, together with this section, clearly indicates that public highways are not limited in width to the actual traveled surface of the roadway. Keidel v. Rask, 290 N.W.2d 255, 1980 N.D. LEXIS 201 (N.D. 1980).

24-01-02. Designation of state highway system.

The director is hereby vested with complete authority to designate, locate, create, and determine what roads, highways, and streets constitute the state highway system, subject however, to such conditions, requirements, and mileage limits as provided for by law. The total mileage of the state highway system may be increased by not more than fifty miles [80.47 kilometers] in any one calendar year. In designating, locating, creating, and determining the several routes of the state highway system, the director shall take into account such factors as the actual or potential traffic volumes, the type of service class, the construction of bypasses and alternate routes, the conservation and development of the state’s natural resources, the general economy of the state and communities, and the desirability of fitting such system into the general scheme of the nationwide network of highways.

Source:

S.L. 1953, ch. 177, § 29; R.C. 1943, 1957 Supp., § 24-0102; S.L. 1959, ch. 227, § 1; 1975, ch. 236, § 3; 1977, ch. 230, § 1.

Notes to Decisions

Delegation of Jurisdiction by Director.

The director of the department of transportation is authorized to delegate a portion of the department’s exclusive jurisdiction and control through cooperative agreements. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Designation.

The department of state highways may locate, relocate, and change any portion of the state highway system without consent of the county. Rode v. State Highway Comm'n, 58 N.D. 249, 225 N.W. 801, 1929 N.D. LEXIS 202 (N.D. 1929).

Exclusive Authority.

The designation, location, creation and determination of highways which constitute part of state highway system are vested exclusively and solely in the state highway department. Rode v. State Highway Comm'n, 58 N.D. 249, 225 N.W. 801, 1929 N.D. LEXIS 202 (N.D. 1929); Great N. Ry. v. McDonnell, 77 N.D. 802, 45 N.W.2d 721, 1950 N.D. LEXIS 171 (N.D. 1950).

Public Ways Within Cities.

Read in conjunction with this section, which gives the director complete authority to designate what roads compose the state highway system, and section 24-01-03, which makes the director responsible for constructing the state highway system, subsection (14) of section 40-05-02 authorizes cities to regulate by classes of traffic the use of public ways within cities, including those city streets designated as state highways. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Subsection (14) of section 40-05-02 authorizes a city to regulate the use of state highways by people, animals and vehicles within cities, except that the setting of speed limits requires the consent of the director of the department of transportation. A city’s power does not, however, reach the design or the alteration of the roadway or the use of a traffic signal controlling the state highway, which are within the sole authority of the director. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Sole Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Sections 24-01-30, 24-01-31, 24-01-33, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-03. Responsibility for state highway system.

The director is responsible for the construction, maintenance, and operation of the state highway system and may enter a cooperative agreement with any municipality for the construction, maintenance, or repair of any urban connecting street. The director may not divest the state from responsibility for maintaining the structural integrity of any bridge over a navigable water of this state which is currently maintained by the state unless an agreement is reached with the municipality.

The jurisdiction, control, and duty of the state and municipality with respect to such urban connecting streets must be as follows:

  1. The director has no authority to change or establish any grade of any such street without approval of the governing body of such municipality.
  2. The municipality shall maintain at its own expense all underground facilities in such streets and has the right to construct such additional underground facilities as may be necessary in such streets.
  3. The municipality has the right to grant the privilege to open the surface of any such street, but all damage occasioned thereby must be repaired promptly by said municipality at its direction and without cost to the department.
  4. The municipality has exclusive right to grant franchises over, beneath, and upon such streets.

Source:

S.L. 1953, ch. 177, § 30; R.C. 1943, 1957 Supp., § 24-0103; 2005, ch. 40, § 5.

Cross-References.

City may enter into agreement with highway department for certain improvements, see § 40-22-06.

Notes to Decisions

Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Delegation by Director.

The director of the department of transportation is authorized to delegate a portion of the department’s exclusive jurisdiction and control through cooperative agreements. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

No Concurrent Jurisdiction Between State and Local Government.

Rather than creating concurrent jurisdiction among the state and the counties and cities, this section, sections 24-01-04 and 24-01-34 authorize these governmental entities to negotiate the terms by which their respective areas of control will be integrated. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Public Ways in Cities.

Read in conjunction with section 24-01-02, which gives the director complete authority to designate what roads compose the state highway system, and this section, which makes the director responsible for constructing the state highway system, subsection (14) of section 40-05-02 authorizes cities to regulate by classes of traffic the use of public ways within cities, including those city streets designated as state highways. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Subsection (14) of section 40-05-02 authorizes a city to regulate the use of state highways by people, animals and vehicles within cities, except that the setting of speed limits requires the consent of the director of the department of transportation. A city’s power does not, however, reach the design or the alteration of the roadway or the use of a traffic signal controlling the state highway, which are within the sole authority of the director. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Sections 24-01-30, 24-01-31, 24-01-33, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Collateral References.

Highways: governmental duty to provide curve warnings or markings, 57 A.L.R.4th 342.

Highway contractor’s liability to highway user for highway surface defects, 62 A.L.R.4th 1067.

24-01-03.1. Highway performance classification plan.

To the extent possible, the department of transportation shall implement the highway performance classification plan.

Source:

S.L. 2005, ch. 40, § 6.

24-01-04. Municipalities to develop master street plan.

Except for a municipality located within a designated metropolitan planning organization, each municipality of over five thousand population in this state, according to the latest available census, shall develop and adopt a master street plan cooperatively between the director and the municipal officials, which must ensure the proper location and integration of the state highway connections in the total city street plan. In selecting and designating the master street plan, the cooperating officials shall take into account the more important principal streets that connect the residential areas with business areas, and the streets that carry the important rural traffic into and across the city, to ensure a system of streets upon which traffic can be controlled and protected, in such a manner as to provide safe and efficient movement of traffic within a municipality.

Source:

S.L. 1953, ch. 177, § 47; R.C. 1943, 1957 Supp., § 24-0104; 2009, ch. 229, § 1.

Cross-References.

Municipal master plans, see N.D.C.C. ch. 40-48.

Notes to Decisions

No Concurrent Jurisdiction Between State and Local Governments.

Rather than creating concurrent jurisdiction among the state and the counties and cities, section 24-01-03, this section, and section 24-01-34 authorize these governmental entities to negotiate the terms by which their respective areas of control will be integrated. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-04.1. Metropolitan planning organizations.

Metropolitan planning organizations shall develop, in cooperation with the state and public transit operators, transportation plans and programs for metropolitan areas which encourage and promote the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people and freight and foster economic growth and development within and through urbanized areas of this state while minimizing transportation-related fuel consumption, air pollution, and greenhouse gas emissions. The plans and programs for each metropolitan area must provide for the development and integrated management and operation of transportation systems and facilities, including pedestrian walkways and bicycle transportation facilities that will function as an intermodal transportation system for the metropolitan area. A metropolitan planning organization is a political subdivision for purposes of chapter 54-52.

Source:

S.L. 2009, ch. 229, § 2.

24-01-04.2. Corridors of commerce program — Corridors of commerce fund.

  1. The department shall administer a corridors of commerce program for constructing, reconstructing, improving, and maintaining highways that improve freight transportation and facilitate commerce.
  2. The corridors of commerce fund is a special fund in the state treasury administered by the department. The fund consists of all money deposited in the fund. Pursuant to legislative appropriations, the department shall use moneys in the fund for eligible highway projects in accordance with provisions of this section.
  3. To be eligible for funding under this section:
    1. Any construction work associated with the project must begin within three years after the department selects the project for funding, unless the department grants an exemption; and
    2. The highway project must meet at least one of the following criteria:
      1. The project is a segment of highway with the following characteristics:
        1. The existing segment is not a divided highway;
        2. At least one end of the segment connects to an expressway or freeway; and
        3. The segment will connect to a proposed or existing interchange;
      2. The project will ease the movement of freight traffic;
      3. The project will improve safety on the highway;
      4. The project will allow oversized or overweight vehicles to use the highway after completion;
      5. The project will provide increased connectivity between areas of significant commerce; or
      6. The highway is or will be designated as national high priority corridor of connectivity.
  4. When evaluating eligible projects for funding under this section, the department shall score each eligible project, make the scores available to the public, and consider:
    1. The return on investment;
    2. Measurable improvements in commerce and economic competitiveness;
    3. Efficiency in traffic flow based on average daily traffic counts, commercial vehicle miles traveled, and travel times;
    4. Safety improvements;
    5. Connections to regional trade centers or other modes of transportation; and
    6. Community support for the project.
  5. The funding provided to an eligible highway project may be used to plan, construct, replace, improve, or maintain the highway.

Source:

S.L. 2019, ch. 222, § 1, effective August 1, 2019.

24-01-05. Designation of county system — Removal from state highway system.

The director may designate, from time to time, those roads selected under section 24-05-16, as the county highway system not exceeding twenty-two thousand five hundred miles [36210.24 kilometers] in length on which federal aid funds must be expended as may be provided by such appropriations. In designating such system, the director may remove from the state highway system those parts which are low in standard of improvement and type of traffic service and which will be released from maintenance agreement or agreements with the federal government. No mileage on the state highway system may be placed on the county road system without the consent of the board of county commissioners of the county in which the road lies. The director may enter into an agreement with the board of county commissioners of any county providing for the transfer of highways from the state highway system to the county road system of such county.

Source:

S.L. 1939, ch. 152, § 1; R.C. 1943, § 24-0105; S.L. 1945, ch. 199, § 1; 1947, ch. 201, § 1; 1955, ch. 177, § 1; 1957 Supp., § 24-0105; S.L. 1975, ch. 236, § 4; 1983, ch. 302, § 1.

24-01-06. Authority to abandon sections of routes.

The director has the authority to abandon sections of routes on the state highway system when such abandoned sections are substantially replaced by improvements on new locations serving the area. Such abandonment may be made even though such highway is not placed on any other road system.

The abandonment order must be filed with the office of the recorder of each county in which the abandonment occurs.

Source:

S.L. 1953, ch. 177, § 31; R.C. 1943, 1957 Supp., § 24-0106; S.L. 1987, ch. 312, § 1; 2001, ch. 120, § 1.

DECISIONS UNDER PRIOR LAW

Analysis

Effect of Relocation.

Only effect which relocation of a highway by the state highway department had was to detach old highway from state highway system. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Vacating Established Highway.

Although the state highway department has the power to include highways within state highway system and exclude others from it, has no power to vacate a highway which has been established and over which public has acquired a right of passage. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

24-01-07. Maps of state, county, and municipal systems.

The department at all times shall provide and maintain a map of the state, which must show all the highways which have been designated, located, created, and constituted as part of the state highway system, the county road system, and the municipal arterial street system, and if practical the status of improvement thereof.

Source:

S.L. 1953, ch. 177, § 32; R.C. 1943, 1957 Supp., § 24-0107; S.L. 1985, ch. 299, § 1.

24-01-08. Uniform marking and erection of signs on highway. [Repealed]

Repealed by S.L. 1975, ch. 353, § 4.

24-01-08.1. Location of signs precluding the cultivation of right of way.

All signs erected by the department, after July 1, 1967, which give notice of the prohibition against the cultivation of the right of way, must be located as near as possible to right-of-way posts, or natural obstructions. All existing signs of such nature must be relocated according to the provisions contained in this section, and when requested by the landowner and a more suitable site can be agreed upon by the landowner and the department.

Source:

S.L. 1967, ch. 205, § 1.

24-01-09. Authority to prescribe traffic-control signals. [Repealed]

Repealed by S.L. 1975, ch. 353, § 4.

24-01-09.1. State highway commissioner to adopt sign manual. [Repealed]

Repealed by S.L. 1975, ch. 353, § 4.

24-01-09.2. State highway commissioner to place signs on all state highways. [Repealed]

Repealed by S.L. 1975, ch. 353, § 4.

24-01-10. Local jurisdictions may provide additional capacity to state highway.

The governing board of any county, municipality, or township, as the case may be, may enter into a written agreement with the director for the construction of a roadway or structure of greater width or capacity than would be necessary to accommodate the normal state highway traffic, upon any state highway within its boundaries, and may appropriate from any funds available, and pay into the state highway fund, such sum or sums of money as may be agreed upon. Nothing herein contained prevents any such municipality from constructing the portions of the street not included in the state highway system independent of any contract with the department, if such construction conforms to such reasonable regulations as the department may prescribe as to grade and drainage.

Source:

S.L. 1953, ch. 177, § 35; R.C. 1943, 1957 Supp., § 24-0110.

Collateral References.

Widening of city street as local improvement justifying special assessment of adjacent property, 46 A.L.R.3d 127.

24-01-11. Maintenance of additional width of state highway system in municipalities.

The governing body of any municipality may enter into a written agreement with the department for the maintenance of such additional width by the department, and from time to time in accordance with such agreement shall appropriate and pay into the state highway fund such sums of money as may be agreed upon. Nothing herein contained may be construed to prevent any such municipality from maintaining such additional width at its own expense subject to the written approval of the department.

Source:

S.L. 1953, ch. 177, § 36; R.C. 1943, 1957 Supp., § 24-0111.

Notes to Decisions

County’s Share.

An injunction will not lie to prevent the fulfillment of an agreement by the board of county commissioners to pay its share of the cost of construction of a state highway. Rode v. State Highway Comm'n, 58 N.D. 249, 225 N.W. 801, 1929 N.D. LEXIS 202 (N.D. 1929).

24-01-12. Regulation of advertising signs on highways.

No person, firm, corporation, or limited liability company may place, put, or maintain any sign, billboard, or advertisement within the limits of a public highway, or in any manner paint, print, place, put, or affix, or cause to be painted, printed, placed, or affixed, any advertisement on or to any stone, tree, fence, stump, pole, mileboard, milestone, danger sign, danger signal, guide sign, guidepost, billboard, building, or other object within the limits of a public highway, or place, put or maintain any sign or billboard upon private property within one thousand feet [304.8 meters] of any highway grade crossing in such place or manner as to obstruct or interfere with a free and clear view of such crossing from any highway or railroad intersecting thereat. None of the provisions of this section prohibit the placing of public notices on billboards erected for that purpose by authority of the governing body of a municipality. Any advertisement in or upon a public highway or private property which, in the judgment of the director, may be deemed to be a hazard to traffic, or in the future may tend to create a hazard to traffic, may be taken down, removed, or destroyed by direction or authority of the department in the case of the state highway system, by the board of county commissioners in the case of the county road system, and by the board of township supervisors in the case of township roads.

Source:

S.L. 1953, ch. 177, § 37; R.C. 1943, 1957 Supp., § 24-0112; S.L. 1993, ch. 54, § 106.

Cross-References.

Municipal power to regulate advertising in public places, see § 40-05-01.

Railroad crossing signs, advertising not to obstruct or resemble, see § 24-09-12.

Regulation of outdoor advertising adjacent to highways, see N.D.C.C. ch. 24-17.

Collateral References.

Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.

24-01-12.1. Harvesting hay on state highway system — Storage and removal.

Every person harvesting hay on the rights of way of the state highway system, who stores the harvested hay on the rights of way for later removal, shall store the harvested hay at the outer edge of the rights of way. The director may remove any hay that is not stored as prescribed in this section. All hay stored on the rights of way must be removed by November first of each year.

Source:

S.L. 1979, ch. 326, § 1; 1987, ch. 313, § 1.

24-01-12.2. Hay disposal.

Any stored hay remaining on the right of way on November first of each year must be disposed of in a manner deemed proper by the director.

Source:

S.L. 1979, ch. 326, § 2; 1987, ch. 313, § 2.

24-01-12.3. Entry into no-mow agreements.

No state agency or political subdivision of the state may enter into any agreement to increase the no-mow acres contained in the rights of way of the state highway system.

Source:

S.L. 1993, ch. 271, § 1.

24-01-13. Enforcement of highway laws — Vehicle size and weight controlled.

The director and each officer and inspector of the department designated by the director have general police powers with respect to enforcement of all laws pertaining to the use of motor vehicles and trailers, other than passenger cars and motorcycles, upon the highways, roads, and streets of this state and may:

  1. Classify highways and enforce limitations as to weight and load of vehicles thereon as provided for under section 39-12-01.
  2. Issue special written permits authorizing the operation of oversized or overweight vehicles as provided for under section 39-12-02.
  3. Prohibit the operation or may impose restrictions on vehicular use of highways during certain seasons of the year as provided for under section 39-12-03.

Source:

S.L. 1953, ch. 177, § 38; 1955, ch. 178, § 1; R.C. 1943, 1957 Supp., § 24-0113; S.L. 1963, ch. 283, § 1; 1973, ch. 222, § 1; 1979, ch. 187, § 37; 1997, ch. 51, § 15.

24-01-14. Speed research.

The director may conduct investigations, research, and analysis of speed limits on any highway.

Source:

S.L. 1953, ch. 177, § 39; R.C. 1943, 1957 Supp., § 24-0114; S.L. 1959, ch. 285, § 1; 1967, ch. 323, § 78; 1975, ch. 349, § 1.

Cross-References.

Radar evidence of speed violations, see § 39-03-15.

Speed regulation by municipalities, see § 40-05-01.

Speed restrictions generally, see N.D.C.C. ch. 39-09.

24-01-15. Director to designate through highways.

The director, with reference to highways under the director’s jurisdiction, may designate as through highways any state highway or part thereof and erect stop signs or yield signs at specified entrances thereto where vehicles are not otherwise required by law to stop or yield right of way.

Source:

S.L. 1953, ch. 177, § 40; R.C. 1943, 1957 Supp., § 24-0115; S.L. 1961, ch. 202, § 1; 1969, ch. 343, § 4.

24-01-16. Erection and maintenance of guardrails.

The director has the authority to erect and maintain guardrails, stretch wires, and other devices on all highways under the director’s jurisdiction, in the interest of public safety.

Source:

S.L. 1953, ch. 177, § 41; R.C. 1943, 1957 Supp., § 24-0116.

24-01-17. Grade crossing elimination.

The director has the authority to contract, on an equitable basis with any railway company, and to let all the necessary contracts for the construction of bridges, underpasses, and approaches necessary for the separation of grades at points of intersection between railroads and the state highways.

Source:

S.L. 1953, ch. 177, § 42; R.C. 1943, 1957 Supp., § 24-0117.

Cross-References.

Changing and closing railroad crossing, see § 24-09-10.

24-01-18. Right of way and materials may be acquired by purchase or eminent domain.

The director, by order, on behalf of the state, and as part of the cost of constructing, reconstructing, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining a state highway, or of providing a temporary road for public use, may purchase, acquire, take over, or, subject to section 32-15-01, condemn under the right and power of eminent domain, for the state, any and all lands in fee simple or such easements thereof which the director deems necessary for present public use, either temporary or permanent, or which the director deems necessary for reasonable future public use, and to provide adequate drainage in the improvement, construction, reconstruction, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining of a state highway, provided, however, as to any and all lands acquired or taken for highway, road, or street purposes, the director may not obtain any rights or interest in or to the oil, gas, or fluid minerals on or underlying said lands. No county may be required to participate in the cost or expense of right of way for the state highway system. By the same means, the director may secure any and all materials, including clay, gravel, sand, or rock, or the lands necessary to secure such material, and the necessary land or easements thereover, to provide ways and access thereto. The director may acquire such land or materials notwithstanding that the title thereto may be vested in the state or any division thereof; provided, however, that no interests in gas, oil, or fluid minerals may be acquired by this procedure.

Source:

S.L. 1953, ch. 177, § 90; R.C. 1943, 1957 Supp., § 24-0118; S.L. 1959, ch. 228, § 1; 2007, ch. 293, § 13.

Cross-References.

Eminent domain generally, see N.D. Const., Art. I, § 16; N.D.C.C. ch. 32-15.

Interest taken for highway purposes limited to easement, see § 32-15-03.2.

Validation of pre-1929 proceedings for acquisition of right of way, see § 1-06-02.

Notes to Decisions

Constitutionality.

The 1953 version of this section was inapplicable insofar as it conflicted with the 1956 amendment of Art. I of the state constitution of 1889 (see now, N.D. Const., Art. I, § 16). Kuecks v. Cowell, 97 N.W.2d 849, 1959 N.D. LEXIS 94 (N.D. 1959).

Land Acquired for Highway Purposes.

Although land acquired by purchase at a private sale was unnecessary for construction of the highway, the land was acquired for “highway purposes”, and the state therefore acquired no mineral interest in the land, where the land was purchased together with another tract of land that was necessary for highway construction because the state reasonably believed that it was more economical to purchase both tracts of land than to face protracted condemnation proceedings involving the necessary land, which the landowner was unwilling to convey separate from the unnecessary land. Feiler v. Wanner, 340 N.W.2d 168, 1983 N.D. LEXIS 410 (N.D. 1983).

Mineral Interests.

The state is expressly prohibited by statute from obtaining any mineral interest in lands acquired for highway purposes. Feiler v. Wanner, 340 N.W.2d 168, 1983 N.D. LEXIS 410 (N.D. 1983).

Not Exclusive Procedure.

Procedure in eminent domain by a civil action is not exclusive insofar as the acquisition of right of way for highway purposes is concerned. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.

Right of Access.

Owner of property left in cul-de-sac by the construction of a highway is not foreclosed from recovery solely because his property does not abut upon the improvement. Guerard v. State, 220 N.W.2d 525, 1974 N.D. LEXIS 180 (N.D. 1974).

DECISIONS UNDER PRIOR LAW

Acquisition of Title.

The statute relating to the condemnation of a right of way by the state highway commission contemplated the outright acquisition of title to the lands and materials, and not the acquisition of easements only. State Highway Comm'n v. State, 70 N.D. 673, 297 N.W. 194, 1941 N.D. LEXIS 216 (N.D. 1941), but see § 32-15-03.2.

Collateral References.

Planning, construction, etc., of streets as “taking”, “damage”, “use” for public purposes, in constitutional sense, 2 A.L.R.2d 677.

Access: abutting owner’s right to compensation for loss of access because of limited access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 148.

Conveyance of land as bounded by road, street, or other way as giving grantee right to compensation upon taking for public highway, 46 A.L.R.2d 461, 490.

Billboards: municipal regulation of billboards and outdoor advertising as taking property without compensation, 58 A.L.R.2d 1314.

Access: power to directly regulate or prohibit, without making compensation, abutter’s access to street or highway, 73 A.L.R.2d 652.

Parkway: right of owners of property abutting street to be compensated for loss of their interest in parkway in center of street on its appropriation for other uses, 82 A.L.R.2d 998.

Grade change: use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change, 2 A.L.R.3d 985.

Excess condemnation: right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Mineral owner: what constitutes reasonably necessary use of the surface of the leasehold by a mineral owner, lessee, or driller under an oil and gas lease of drilling contract, 53 A.L.R.3d 16.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

Law Reviews.

Highways, Environmental Legislation, and Judicial Review: The Changing Notion of Necessity, 50 N.D. L. Rev. 437.

24-01-18.1. Right of way adjacent to customs and immigration.

Whenever the director finds that it will facilitate travel and promote public convenience or that it will avoid the need for additional road building, the director may procure rights of way and other interests in land adjacent to established public highways for the location of custom and immigration buildings to be erected by the federal government. The director is hereby vested with like power in the acquisition of such lands as the director may have in acquiring rights of way and land for highway purposes.

Source:

S.L. 1957, ch. 192, § 1; R.C. 1943, 1957 Supp., § 24-01181.

24-01-18.2. Sites for customs and immigration — Governor to convey.

When the federal government has requested title to any lands acquired by the director under the provisions of sections 24-01-18.1 and 24-01-18.2 and the director certifies that the establishment of custom and immigration points of entry thereon will facilitate travel and promote public convenience or will avoid the need for additional road building, the governor is authorized to convey to the United States of America such sites as may be required for the location of such buildings and accessory facilities including means of access thereto.

Source:

S.L. 1957, ch. 192, § 2; R.C. 1943, 1957 Supp., § 24-01182.

24-01-19. Board of county commissioners may determine damages.

If the director is unable to purchase land or materials with the necessary ways and access thereto, at what the director deems a reasonable valuation, then the board of county commissioners of the county wherein such land or materials may be situated, on petition of the director, shall proceed to ascertain and determine the damages and make awards in the manner provided by chapter 24-07 for lands taken for highway purposes as hereby modified or amended. Within fifteen days after the filing of such petition with the county auditor, the board of county commissioners shall fix a time and place, not later than sixty days from and after the filing of such petition, for a hearing of all persons interested or aggrieved by such taking, and shall cause to be published in the official newspaper of the county, at least once a week, for three successive weeks, prior to such hearing, a notice of such hearing, stating the time and place where the same shall be held, together with a description of the property to be taken. Such published notice must be in lieu of all other notices, and when so published must give the said board of county commissioners full and complete jurisdiction to proceed with the determination of awards of damages. A copy of such notice must be served personally upon all known owners residing or found within the state, and upon the occupant of the land, not less than fifteen days prior to such hearing, in the manner provided for the service of a summons in the district court, and in case of personal service of such notice upon all persons interested in any manner in said real property, as disclosed by the records in the office of the recorder of the county wherein said property is located, no publication of such notice may be made.

Source:

S.L. 1953, ch. 177, § 91; R.C. 1943, 1957 Supp., § 24-0119; S.L. 2001, ch. 120, § 1.

Notes to Decisions

Constitutionality.

This section is inoperative and inapplicable where in conflict with Article I, section 14 of the state constitution of 1889, as amended, (see now, N.D. Const., Art. I, § 16) which provided that when state sought to acquire right of way, it could take possession upon making an offer to purchase and by depositing amount of offer with clerk of district court. Kuecks v. Cowell, 97 N.W.2d 849, 1959 N.D. LEXIS 94 (N.D. 1959).

Measure of Compensation.

Where condemned portions of land were most desirable of owner’s lots, some of which had been sold, it was entitled to a different measure of compensation than for rest of lots abutting on highway. Wishek Inv. Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417, 1950 N.D. LEXIS 164 (N.D. 1950).

24-01-20. Damages to be paid into court.

When the award of damages for the taking of land or materials, or both, has been completed by the board of county commissioners, the director shall pay, or cause to be paid from the state highway fund, into court, for the benefit of the owners of land to whom such awards have been made, by depositing with the clerk of court of such county cash in the amount of such award or awards.

Source:

S.L. 1953, ch. 177, § 92; R.C. 1943, 1957 Supp., § 24-0120.

24-01-21. Receipt to be signed by owner or clerk of court.

Every owner entitled to an award for damages, before the same is paid to the owner by the clerk of court, shall sign and execute a receipt therefor. Such receipt must contain a description of the premises covered by the award. In case the owner fails or refuses to accept such award and execute such receipt therefor, the clerk of court shall execute a receipt, reciting the deposit of such award with the owner and the description of the premises covered by the award.

Source:

S.L. 1953, ch. 177, § 93; R.C. 1943, 1957 Supp., § 24-0121.

Collateral References.

Governmental tort liability for detour accidents, 1 A.L.R.5th 163.

24-01-22. Title vests after thirty days if no appeal taken.

At the expiration of thirty days from the award by the board of county commissioners from which no appeal has been taken as provided in section 24-01-23, whenever such money has been deposited in the office of the clerk of court, the receipt of the owners of said property, or of such clerk of court, must be recorded in the office of the recorder of the county in which such real estate is situated, and the title to the land or materials thereupon must be vested in the state.

Source:

S.L. 1953, ch. 177, § 94; R.C. 1943, 1957 Supp., § 24-0122; S.L. 2001, ch. 120, § 1.

Cross-References.

Interest taken for highway purposes limited to easement, see § 32-15-03.2.

Validation of pre-1929 proceedings for acquisition of right of way, see § 1-06-02.

Notes to Decisions

Thirty-Day Period.

The receipt of the clerk of court evidencing vesting of title cannot be recorded in office of register of deeds [now recorder] until expiration of thirty days from award by board of county commissioners and deposit of money in office of clerk of court. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

24-01-22.1. Appeal after deposit for taking.

Within thirty days after notice has been given in writing to the landowner by the clerk of the district court that a deposit has been made for a taking of right of way as authorized by section 16 of article I of the Constitution of North Dakota, the owner of the property taken may appeal to the district court by serving a notice of appeal upon the acquiring agency, and the matter must be tried at the next regular or special term of court with a jury unless a jury is waived, in the manner prescribed for trials under chapter 32-15.

Source:

S.L. 1957, ch. 189, § 1; R.C. 1943, 1957 Supp., § 24-01221; S.L. 1989, ch. 69, § 18.

Notes to Decisions

“Appeal” Defined.

Although the constitution and statutes use the term “appeal” to describe this procedure in quick-take proceedings, the court recognize that it is not, in fact, an appeal from a lower court to a higher court. The “appeal” envisioned by these proceedings is, rather, the first step in a judicial proceeding. Therefore, N.D.R.App.P. 3(c), specifying the contents of a notice of appeal in appellate proceedings, does not apply. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Appeal on Damages.

A landowner after a taking of right of way by a department of the state may appeal on the question of damages in the manner provided by statute. Cowl v. Wentz, 107 N.W.2d 697, 1961 N.D. LEXIS 63 (N.D. 1961).

An appeal on the issue of damages from a taking of land pursuant to section 14 of the constitution by state highway department for right of way purposes should be tried in the district court in the manner prescribed for trials under N.D.C.C. ch. 32-15, and the trial court, in a proper case, is governed by section 32-15-22(4). Wentz v. Pletka, 108 N.W.2d 337, 1961 N.D. LEXIS 66 (N.D. 1961).

Expert Testimony.

Where the foundation established that a witness was a member of the North Dakota society of professional engineers and, in his employment, had computed the cost of building roads, trial court was not in error in allowing him to give an expert opinion as to the cost of building a road. Boylan v. Board of County Comm'rs, 105 N.W.2d 329, 1960 N.D. LEXIS 86 (N.D. 1960).

Notice of Appeal.

Landowner’s notice of appeal served upon the clerk of the district court, rather than upon the acquiring agency, was sufficient to give the trial court jurisdiction over the appeal where the acquiring agency, under no constitutional or statutory duty to do so, included in the notice of deposit to the owner signed by the clerk of the district court advice as to the time within which the landowner might appeal, but did not specify the party to be served with the notice of appeal. Haveluck v. North Dakota State Highway Dep't, 333 N.W.2d 425, 1983 N.D. LEXIS 272 (N.D. 1983).

Letter which clearly informed the county that landowner was declining the offered sum and unambiguously expressed his intent to appeal the matter to district court for the purposes of a quick-take proceeding was a valid notice of appeal. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Notice of Taking of Right of Way.

This section clearly requires that the notice advise a landowner that a deposit has been made for a taking of right of way. Therefore, where the notice to landowner did not advise him that his property was being taken, rather merely informed him that the county was offering to purchase the land and that one thousand forty-five dollars had been deposited with the clerk of court, the statutory requirements had not been met, and the thirty-day appeal period did not begin. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Remedy Exclusive.

This section is complete in itself and provides the only method of appeal since the 1956 amendment of Article I, section 14 of the state constitution of 1889 (see now, N.D. Const., Art. I, § 16). Kuecks v. Cowell, 97 N.W.2d 849, 1959 N.D. LEXIS 94 (N.D. 1959).

Special Benefits.

Where an expert witness testified that special benefits would accrue to land by reason of its proximity to an interchange upon an interstate highway but could not evaluate such benefits in dollars, and there was no other evidence of the value of such benefits, it was error to submit the issue of such prospective benefits to the jury. Boylan v. Board of County Comm'rs, 105 N.W.2d 329, 1960 N.D. LEXIS 86 (N.D. 1960).

Time for Appeal.

After a taking by a department of state for right of way purposes pursuant to section 14 of the constitution, the limitation of time within which an appeal may be taken commences to run after notice of deposit has been given to the landowner in writing by the clerk of the district court. Cowl v. Wentz, 107 N.W.2d 697, 1961 N.D. LEXIS 63 (N.D. 1961).

In quick-take proceeding county had the burden to demonstrate that the appeal period had commenced more than thirty days before landowner’s notice of appeal. Aalund v. Williams County, 442 N.W.2d 900, 1989 N.D. LEXIS 132 (N.D. 1989).

Law Reviews.

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to eminent domain, 66 N.D. L. Rev. 753 (1990).

24-01-23. Appeals from decision of board of county commissioners — Procedure — Special term of court.

Any party aggrieved by the proceedings of the director in the taking of land or materials, or by the estimate of damages and the award of the board of county commissioners has the remedies provided in this title for appeal from any determination of a board of county commissioners in the taking of land for highway purposes. Service of a written or printed notice of such appeal must be made upon the chairman of the board of county commissioners and the director. An appeal from the award by the board of county commissioners, without filing a cost bond, may be taken by the director, by service of notice of appeal upon the chairman of the board of county commissioners and the owner of the property, in the manner provided by law for the service of a summons in a civil action. Upon any appeal, the director, on application to the judge of the district court, must be granted a special term of court, in the manner provided in cases of eminent domain in chapter 32-15.

Source:

S.L. 1953, ch. 177, § 95; R.C. 1943, 1957 Supp., § 24-0123.

Cross-References.

Special term of court, see § 32-15-16.

Notes to Decisions

Correction of Undertaking.

Where, upon an appeal from a decision of the board of county commissioners to the district court, a valid notice of appeal has been timely served and filed but the accompanying undertaking for costs is defective, appellate court has jurisdiction of the appeal and may permit undertaking to be corrected. Haman v. McHenry County, 72 N.W.2d 630 (N.D. 1955), overruled on other grounds, MacDonald v. North Dakota Comm’n on Medical Competency, 492 N.W.2d 94 (N.D. 1992)

Parties Respondent on Appeal.

Members of board of county commissioners are not proper parties respondent on an appeal from their decision and judgment may not be rendered against them. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808, 1946 N.D. LEXIS 68 (N.D. 1946).

Special Appearance.

Person appearing specially to challenge constitutionality of statute as to jurisdiction of commissioners preserved his right to appeal their decision although his attack on constitutionality of statute failed. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.

Superseded.

Section 14 of Article I of the state constitution of 1889 (see now, N.D. Const., Art. I, § 16) as amended in 1956 and R.C., 1943, 1957 Supp., § 24-01221 superseded this section and made it inoperative so far as state or any of its departments, agencies, or political subdivisions are seeking to acquire right of way. Kuecks v. Cowell, 97 N.W.2d 849, 1959 N.D. LEXIS 94 (N.D. 1959).

DECISIONS UNDER PRIOR LAW

Use of Property Pending Appeal.

Use of property pending an appeal would constitute at least a partial taking prior to determination of court that it was necessary and before compensation for it had been determined and paid into court so that former statute allowing condemner to use property pending appeal violated section 14 of Art. I of the state constitution of 1889 (see now, N.D. Const., Art. I, § 16). Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

Owner of property sought to be taken for highway use retained title, control, and enjoyment of property, if he appealed within thirty-day period, until final determination of such appeal. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

24-01-24. Appeal does not stay condemnation proceedings. [Repealed]

Repealed by omission from this code.

24-01-25. Fees not charged for recording instruments.

No fees may be charged or collected by the county auditor, the recorder, or the clerk of court for any services rendered for the recording or filing of any document required under this chapter.

Source:

S.L. 1953, ch. 177, § 97; R.C. 1943, 1957 Supp., § 24-0125; S.L. 2001, ch. 120, § 1; 2013, ch. 258, § 2.

Cross-References.

Instruments entitled to record without regard to taxes, see § 11-18-03.

24-01-26. Grants of rights of way confirmed.

The following grants of rights of way heretofore made by the legislative assembly are hereby confirmed:

  1. For a highway across the military encampment grounds at Rock Island in Ramsey County as set forth in chapter 134 of the Session Laws of 1901.
  2. For a highway across Devils Lake as set forth in chapter 141 of the Session Laws of 1903.
  3. For a highway across Des Lacs Lake as set forth in chapter 57 of the Session Laws of 1905.

Source:

S.L. 1953, ch. 177, § 98; R.C. 1943, 1957 Supp., § 24-0126.

Cross-References.

Validation of pre-1929 proceedings for acquisition of right of way, see § 1-06-02.

24-01-27. Survey — Plat — Damages from survey.

Whenever the director determines by order that public exigency requires the taking of land or materials as provided in section 24-01-18, the director shall cause the same to be surveyed and described, and a plat thereof approved by the county auditor and the said description must be recorded in the office of the recorder of the county wherein the same is located. When such plat has been approved and recorded, any description of the property in accordance with the parcel or lot number and description set forth in such plat must be deemed a good and valid description of the lots or parcels of land so described. No such plat or description may bear the name or number which has been applied to any plat or description previously made and recorded. The director, or the director’s duly authorized agents, may enter upon any land for the purpose of making surveys, examinations, or tests. In case of any damages to said premises, the director forthwith shall pay to the owner of said premises the amount of such damages.

Source:

S.L. 1953, ch. 177, § 99; 1957, ch. 189, § 2; R.C. 1943, 1957 Supp., § 24-0127; S.L. 2001, ch. 120, § 1.

Cross-References.

Irregularities of land to be platted into lots if required, see § 57-02-39.

24-01-28. Vacating highways by director — Sale of property.

The director may vacate any land or part thereof, or rights in land taken or acquired for highway purposes under the provisions of this title, by executing and recording a deed thereof, and the vacation revests the title to the land or rights in the persons, their heirs, successors, or assigns, in whom it was vested at the time of the taking. As oil, gas, and fluid minerals are not a part of and essential for highway purposes, all such rights heretofore taken, if any, are hereby vacated and returned to the person or persons in whom the title was vested at the time of taking, their heirs, administrators, executors, or assigns. Such reconveyance is subject to any existing contracts or agreements covering the property, and all rights and benefits thereof accrue to the grantee. The governor, on recommendation of the director, may sell and convey on behalf of the state the interests of the state in property acquired by purchase under this title and deemed no longer necessary for the purposes thereof, and the proceeds of the sale so far as practicable must be credited to the funds from which the purchase was made originally. With the consent of the persons, their heirs, successors, or assigns in whom the title or rights to the land were vested at the time of the purchase or acquisition, the director may vacate land acquired by purchase under this title which is deemed no longer necessary for highway purposes and which the director has determined that the cost of the sale exceeds the estimated value of the property, by executing and recording a deed thereof, and the vacation revests the title to the land or rights in those persons, their heirs, successors, or assigns.

Source:

S.L. 1953, ch. 177, § 100; 1955, ch. 88, § 1; R.C. 1943, 1957 Supp., § 24-0128; S.L. 1997, ch. 235, § 1.

Cross-References.

Limit of estates to be taken for highway purposes, see §§ 32-15-03, 32-15-03.2.

Opening and vacating highways, see N.D.C.C. ch. 24-07.

Notes to Decisions

Rights Under Mineral Contract.

The former owners of land taken for highway purposes by condemnation proceedings, being grantees under the reconveyance of oil, gas, and mineral rights by the provisions of this section, are entitled to all rights and benefits accruing under any contract or agreement existing at the time of such reconveyance. Wallentinson v. Williams County, 101 N.W.2d 571, 1960 N.D. LEXIS 55 (N.D. 1960).

24-01-29. Temporary acquisition of rights of way or easements for detours.

The director, by order, and as part of the cost of constructing, reconstructing, or repairing a state highway or any part thereof, may acquire by gift, permission, purchase, lease, or condemnation, temporary easements or rights of way for the purpose of providing a temporary detour at such location as the director designates.

Source:

S.L. 1953, ch. 177, § 101; R.C. 1943, 1957 Supp., § 24-0129.

Cross-References.

Temporary easements for highway construction, maximum duration, see § 47-01-22.

24-01-30. Authority to establish controlled-access facilities.

The highway authorities of the state, counties, and municipalities of North Dakota, acting alone or in cooperation with each other or with any federal, state, or local agency, or any other state having authority to participate in the construction and maintenance of highways, are hereby authorized to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide controlled-access facilities for public use wherever such authority or authorities are of the opinion that traffic conditions, present or future, will justify such special facilities, provided that within municipalities such authority is subject to such municipal consent as may be provided by law. Said highway authorities of the state, counties, and municipalities, in addition to the specific powers granted by law, also have and may exercise, relative to controlled-access facilities, any and all additional authority now or hereafter vested in them relative to highways or streets within their respective jurisdictions. Said units may regulate, restrict, or prohibit use of such controlled-access facilities by the various classes of vehicles or traffic in a manner consistent with the definition of a controlled-access facility.

Source:

S.L. 1953, ch. 177, § 102; R.C. 1943, 1957 Supp., § 24-0130.

Notes to Decisions

Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Traffic Signals.

This section, 24-01-31, 24-01-33, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-31. Design of controlled-access facility.

The highway authorities of the state, or any county, or municipality are authorized to so design any controlled-access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended. In this connection such highway authorities are authorized to divide and separate any controlled-access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes, and other devices. No person has any right of ingress or egress to, from or across controlled-access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time.

Source:

S.L. 1953, ch. 177, § 103; R.C. 1943, 1957 Supp., § 24-0131.

Notes to Decisions

Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Traffic Signals.

Sections 24-01-30, this section, 24-01-33, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-32. Acquisition of property and property rights.

For the purposes of chapter 177 of the 1953 Session Laws, the highway authorities of the state, or any county, or municipality may acquire private or public property and property rights for controlled-access facilities and service roads, including rights of access, air, view, lights, and such advertising rights outside of the right of way as may be determined by the director to be in the public interest, by gift, devise, purchase, or condemnation in the same manner as such units are now or hereafter may be authorized by law to acquire such property or property rights in connection with highways and streets within their respective jurisdictions. All property rights acquired under the provisions of chapter 177 of the 1953 Session Laws must be in fee simple, provided, however, as to any and all lands acquired or taken for highway, road, or street purposes, they may not obtain any rights or interest in or to the oil, gas, or fluid minerals underlying said lands. In connection with the acquisition of property or property rights for any controlled-access facility or portion thereof, or service road in connection therewith, the state, county, or municipal highway authority may, in its discretion, acquire an entire lot, block, or tract of land, if, by so doing, the interests of the public will be best served, even though said entire lot, block, or tract is not immediately needed for the right of way proper.

Source:

S.L. 1953, ch. 177, § 104; R.C. 1943, 1957 Supp., § 24-0132; S.L. 1959, ch. 229, § 1.

Cross-References.

Interest taken for highway purposes limited to easement, § 32-15-03.2.

Notes to Decisions

Altering Right of Access in Future.

In acquiring access control for a project, the state does not necessarily acquire the right to indiscriminately alter or eliminate access in the future without additional payment of compensation to property owner, but merely pays for damage suffered as the result of alteration of access arising from that particular project; whether property owner is entitled to additional compensation for subsequent alteration of access after state has acquired access control rights depends on whether the subsequent alteration made access unreasonable or substantially more unreasonable, and whether the interference with access caused by the subsequent alteration was within the contemplation of the parties at the time the state acquired the access control rights. Filler v. Minot, 281 N.W.2d 237, 1979 N.D. LEXIS 259 (N.D. 1979).

Ingress and Egress.

A landowner whose property abuts property taken by eminent domain for construction of a limited access highway has a right to reasonable, but not unlimited, ingress and egress to the property, and that right cannot be taken by the state without just compensation. Chandler v. Hjelle, 126 N.W.2d 141, 1964 N.D. LEXIS 81 (N.D. 1964).

In a condemnation proceeding it is error to instruct the jury that the right of a landowner whose property abuts a limited access highway to reasonable ingress and egress is subject to the “paramount right of the state”. Chandler v. Hjelle, 126 N.W.2d 141, 1964 N.D. LEXIS 81 (N.D. 1964).

Land Acquired for Highway Purposes.

Although land acquired by purchase at a private sale was unnecessary for construction of the highway, the land was acquired for “highway purposes”, and the state therefore acquired no mineral interest in the land, where the land was purchased together with another tract of land that was necessary for highway construction because the state reasonably believed that it was more economical to purchase both tracts of land than to face protracted condemnation proceedings involving the necessary land, which the landowner was unwilling to convey separate from the unnecessary land. Feiler v. Wanner, 340 N.W.2d 168, 1983 N.D. LEXIS 410 (N.D. 1983).

Measure of Damages.

In a condemnation proceeding it was not error to instruct the jury that “compensation may be calculated upon the basis of the most advantageous and valuable use of the property having regard to the existing business or wants of the community or such as may be reasonably expected in the immediate future”. Chandler v. Hjelle, 126 N.W.2d 141, 1964 N.D. LEXIS 81 (N.D. 1964).

Mineral Interests.

The state is expressly prohibited by statute from obtaining any mineral interest in lands acquired for highway purposes. Feiler v. Wanner, 340 N.W.2d 168, 1983 N.D. LEXIS 410 (N.D. 1983).

24-01-33. New and existing facilities — Grade crossing elimination.

The highway authorities of the state, or any county, or municipality may designate and establish controlled-access highways as new and additional facilities or may designate and establish an existing street or highway as included within a controlled-access facility. The state or any of its subdivisions has authority to provide for the elimination of intersections at grade of controlled-access facilities with existing state and county roads, and municipal streets, by grade separation or service road, or by closing off such roads and streets at the right-of-way boundary lines of such controlled-access facility; and after the establishment of any controlled-access facility, no highway or street which is not part of said facility may intersect the same at grade. No municipal, county, or state highway, or other public way may be opened into or connected with any such controlled-access facility without the consent and previous approval of the highway authority in the state, county, or municipality having jurisdiction over such controlled-access facility. Such consent and approval may be given only if the public interest is served thereby.

Source:

S.L. 1953, ch. 177, § 105; R.C. 1943, 1957 Supp., § 24-0133.

Notes to Decisions

Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Traffic Signals.

Sections 24-01-30, 24-01-31, this section, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-34. Authority of local units to consent.

The highway authorities of the state, or any county, or municipality are authorized to enter into agreements with each other, or with the federal government, respecting the financing, planning, establishment, improvement, maintenance, use, regulation, or vacation of controlled-access facilities or other public ways in their respective jurisdictions.

Source:

S.L. 1953, ch. 177, § 106; R.C. 1943, 1957 Supp., § 24-0134.

Notes to Decisions

No Concurrent Jurisdiction Between State and Local Governments.

Rather than creating concurrent jurisdiction among the state and the counties and cities, sections 24-01-03, 24-01-04, and this section authorize these governmental entities to negotiate the terms by which their respective areas of control will be integrated. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-35. Local service roads.

In connection with the development of any controlled-access facility the state, county, or municipal highway authorities are authorized to plan, designate, establish, use, regulate, alter, improve, maintain, and vacate local service roads and streets or to designate as local service roads and streets any existing road or street, and to exercise jurisdiction over service roads in the same manner as is authorized over controlled-access facilities, if, in their opinion, such local service roads and streets are necessary or desirable. Such local service roads or streets must be of appropriate design and must be separated from the controlled-access facility proper by means of all devices designated as necessary or desirable by the proper authority.

Source:

S.L. 1953, ch. 177, § 107; R.C. 1943, 1957 Supp., § 24-0135.

24-01-36. Bridges may be built separately.

While the necessary bridges on any state highway must be construed and considered a part of such highway, nevertheless, such bridges may be designed, erected, and contracts awarded separately therefor, and such bridges may be designed, erected, and contracted irrespective of the time when the highway contiguous thereto has been or may have been improved. All necessary fills and approaches to any bridge must be construed and considered as part of such bridge.

Source:

S.L. 1953, ch. 177, § 108; R.C. 1943, 1957 Supp., § 24-0136.

Cross-References.

Bridges, see N.D.C.C. ch. 24-08.

24-01-37. Inspection of bridges.

The department, at least every four years, and so far as time and conditions may permit, shall cause an inspection to be made of all bridges on the state highway system in the state. In case any bridge on the state highway system is deemed unsafe for public use by the said department, it forthwith shall take steps to close the same and prevent the use thereof by the public. In case any bridge on the state highway system is deemed unsafe for loads in excess of a certain weight, the department forthwith shall post notices on both ends of such bridge stating that such bridge is unsafe for loads beyond that weight.

Source:

S.L. 1953, ch. 177, § 109; R.C. 1943, 1957 Supp., § 24-0137; S.L. 1981, ch. 291, § 1.

24-01-38. Bridge across Yellowstone River in McKenzie County. [Repealed]

Repealed by S.L. 1963, ch. 212, § 1.

24-01-39. Use of right of way for utilities subject to regulations by department.

Electric transmission, telephone or telegraph lines, pole lines, railways, ditches, sewers, water, heat, or pipelines, gas mains, flumes, or other structures outside of the limits of any municipality which under the laws of this state, may be constructed, placed, or maintained across or along any highway which is a part of the state highway system, by any person, persons, corporation, limited liability company, or subdivision of the state, may be so maintained or constructed only in accordance with such regulations as may be prescribed by the department, which has power to prescribe and enforce reasonable rules and regulations with reference to the placing and maintaining along, across, or on any such state highway any of the utilities hereinbefore set forth. Nothing herein restricts the action of public authorities in extraordinary emergencies. Nothing in this chapter contained may be construed as modifying or abridging the powers conferred upon the public service commission in title 49, the intent of this section being that the powers hereby granted to the department may be exercised only in such manner as not to conflict with valid exercise by the public service commission of the powers granted to it.

Source:

S.L. 1953, ch. 177, § 111; R.C. 1943, 1957 Supp., § 24-0139; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Authority of State.

The state has sole authority to design and build state controlled-access highways except where statutes require municipal consent. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

Traffic Signals.

Sections 24-01-30, 24-01-31, 24-01-33, and 24-01-34 do not grant a city control over a traffic control signal located on a state highway. Ebach v. Ralston, 469 N.W.2d 801, 1991 N.D. LEXIS 81 (N.D. 1991).

24-01-40. Right of way for utilities — Granted by director.

The director may grant to any person, who is a resident of this state, or to any corporation organized under the law of this state, or licensed to do business within this state, the right of way for the erection of a telephone line or electric line over or upon any state highway or structure constituting part of such highway or to lay pipes, conduits, or tunnels in, through, or over any such state highway or structure, or to erect, construct, and maintain any bridge, conduit, or other crossing in, under, or over such state highway or structure and in accordance with the rules and regulations therefor.

Source:

S.L. 1953, ch. 177, § 112; R.C. 1943, 1957 Supp., § 24-0140.

Cross-References.

Compensation to county for damage to road in laying pipelines, see § 49-19-10.

Notice of change in topography of lands under or adjacent to utility lines, see § 49-20-12.1.

Permission to secure right of way, see § 49-19-09.

DECISIONS UNDER PRIOR LAW

Power Lines.

State highway commission was not empowered to grant a right of way to construct and operate electric power transmission line over or upon state highways. Morton County v. Hughes Elec. Co., 53 N.D. 742, 208 N.W. 108, 1926 N.D. LEXIS 29 (N.D. 1926).

24-01-41. Relocation of utility facilities.

  1. Whenever the director determines and orders that any utility facility which now is, or hereafter may be, located in, over, along, or under the national system of interstate and defense highways, or urban extension thereof, qualifying for federal aid should be changed, removed, or relocated to accommodate the construction of a project on the national system of interstate and defense highways, including extensions thereof within urban areas, the utility owning or operating such facility shall change, relocate, or remove the same in accordance with the order of the director; provided that the costs of the change, relocation, or removal, including the costs of installing such facilities in a new location, must be ascertained and paid to the affected utility by the state out of state highway funds as part of the cost of such federally aided project, unless such payment would violate a legal contract between the utility and the state.
  2. As used in this section, the term “utility” includes all cooperatively, municipally, publicly, or privately owned utilities, for supplying water, sewer, light, gas, power, telegraph, telephone, transit, pipeline, or like service to the public or any part thereof. “Cost of change, relocation, or removal” includes the entire cost incurred by such utility properly attributable to such change, relocation, or removal after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.
  3. The department, in cooperation with utilities, shall develop or adopt procedures for administration of utility facility relocation. The procedures must comply with federal law. At a minimum, the procedures must address notification, coordination, billing, and payment. The department shall coordinate with utilities that are affected by the construction project as early as possible in the project development process.
  4. The department shall coordinate utility facility relocations with the affected utility in an effort to minimize cost associated with utility facility relocations.
  5. When a utility facility needs to be relocated, the department shall enter an agreement with the utility indicating if the utility facility relocation work is eligible for reimbursement, the estimated cost for the work, the anticipated construction schedule, and the location of the work.
  6. This section does not affect in any way the right of any utility to receive just compensation for the expense of changing, removing, or relocating its facilities located in a private right of way.

Source:

S.L. 1957, ch. 195, §§ 1 to 4; R.C. 1943, 1957 Supp., § 24-0141; 2009, ch. 230, § 1.

Notes to Decisions

Constitutionality.

This section did not violate sections 11, 20, 70 and subsection 20 of section 69 of Article I of the North Dakota constitution of 1889. It is a general law of uniform operations based upon a reasonable classification. Northwestern Bell Tel. Co. v. Wentz, 103 N.W.2d 245, 1960 N.D. LEXIS 69 (N.D. 1960).

Police Power.

This section does not abridge the state police power. Northwestern Bell Tel. Co. v. Wentz, 103 N.W.2d 245, 1960 N.D. LEXIS 69 (N.D. 1960).

Collateral References.

Constitutionality of state legislation to reimburse public utilities for cost of relocating their facilities because of highway construction, conditioned upon federal reimbursement of the state under the terms of Federal Aid Highway Act (23 USCS § 123). 75 A.L.R.2d 419.

What constitutes “construction or maintenance” of highways or roads in constitutional provision or statute allowing disbursements from state road fund for that purpose, 36 A.L.R.5th 657.

State or local governmental body’s action or inaction, in provision of public utility services, benefiting private company as constituting gift of money, or pledge of credit, to private party in violation of state constitutional provision, 122 A.L.R.5th 337.

24-01-41.1. Relocation of property other than utilities.

The legislative assembly assents that highway relocation assistance payments, as provided in the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [Pub. L. 91-646; 84 Stat. 1894; 42 U.S.C. 4601 et seq.], and such changes or amendments thereof which Congress may hereafter enact, are to be considered a necessary cost in the construction or reconstruction of public highways which are eligible for federal aid funds. The director is authorized and empowered to expend highway funds for the cost of the state’s participation in highway relocation assistance payments. Relocation assistance payments as provided in the Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and such changes or amendments thereof which Congress may hereafter enact, may not be construed as creating any element of damages recognized in eminent domain.

Source:

S.L. 1969, ch. 261, § 1; 1979, ch. 187, § 38.

24-01-41.2. Relocation of utility facilities — Political subdivision roads.

  1. Whenever a political subdivision determines and orders that any utility facility that is or may be located in, over, along, or under a road right of way under its authority, qualifying for federal aid, should be changed, removed, or relocated to accommodate the construction of a project, the utility owning or operating the facility shall change, relocate, or remove the utility facility in accordance with the order of the political subdivision; provided that the costs of the change, relocation, or removal, including the cost of installing the facilities in a new location, must be ascertained and paid to the affected utility by the political subdivision as part of the cost of the federally aided project unless the payment would violate a legal contract between the utility and the political subdivision or where the roadway existed before the utility facility.
  2. As used in this section:
    1. “Cost of change, relocation, or removal” includes the entire cost incurred by such utility properly attributable to such change, relocation, or removal after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility.
    2. “Political subdivision” includes a county, city and county, city, home rule city, service authority, school district, local improvement district, law enforcement authority, water, sanitation, fire protection, metropolitan, irrigation, drainage, or other special district, or any other municipal, quasi-municipal, or public organization.
    3. “Utility” includes all cooperatively, municipally, publicly, or privately owned utilities for supplying water, sewer, light, gas, power, telegraph, telephone, transit, pipeline, or like service to the public.
  3. The political subdivision, in cooperation with utilities, shall develop or adopt procedures for administration of utility facility relocation. The procedures must comply with federal law. At a minimum, the procedures must address notification, coordination, billing, and payment. The political subdivision shall coordinate with utilities that are affected by the construction project as early as possible in the project development process.
  4. The political subdivision shall coordinate utility facility relocations with the affected utility in an effort to minimize costs associated with utility facility relocations.
  5. When a utility facility needs to be relocated, the political subdivision shall enter an agreement with the utility indicating if the utility facility relocation work is eligible for reimbursement, the estimated cost for the work, the anticipated construction schedule, and the location of the work.
  6. This section does not affect in any way the right of any utility to receive just compensation for the expense of changing, removing, or relocating its facilities located in a private right of way.

Source:

S.L. 2009, ch. 230, § 2.

24-01-42. Construction of utility facility — Limitation.

No person, firm, or association may construct any electrical supply or communication line, gas, oil, or water, or other pipeline parallel to and within one hundred feet [30.48 meters] of the centerline of any state highway right of way or within seventy-five feet [22.86 meters] of the centerline of any county highway right of way without first obtaining the consent of the director or board of county commissioners except that such prohibition does not apply to highways or streets located within areas platted as townsites or additions and subdivisions thereof.

Source:

S.L. 1959, ch. 222, § 1; 1963, ch. 213, § 1.

Notes to Decisions

Arbitrary and Unreasonable.

While safety considerations may not be as great in the case of a buried water line as with some of the other types of lines restricted, this section is not clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or public welfare, because it tends to promote sound and efficient highway planning, safety, and the public welfare; in limited circumstances, reducing the cost of possible future highway expansion is a permissible objective. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Equal Protection.

The classification established by this section and section 24-01-43 which restricts the placement of utility lines within 100 feet of state highways, but places no similar restrictions on the construction of fences, buildings, television towers, industrial facilities, or even a private road, does not deny equal protection because the legislature could reasonably have determined that the frequency with which utility lines are constructed near highways created the problem most in need of reform or that restricting the construction of utility lines would not materially diminish the value of usefulness of adjacent property, but that similar restrictions on other types of construction might materially diminish the value or usefulness of the property, thus resulting in a compensable taking unnecessarily costly to the state and unnecessarily detrimental to the landowner. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Highway Commissioner’s Consent.

Because the plaintiff corporation did not request the highway commissioner’s consent, it lacked standing to say that it had been harmed or adversely affected by the lack of standards or safeguards in this section and section 24-01-43 asserted to be unconstitutional. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Reasonable Uses.

Prohibiting a landowner, and thus his lessee or grantee, from constructing any electrical supply or communication line, or other pipeline within 100 feet of the center line of a state highway without the commissioner’s consent upon pain of removal at the expense of the utility, when such removal is required for highway expansion does nothing more than regulate one particular future use of property while leaving available to the property owner all other uses, thus, these sections do not prohibit all or substantially all reasonable uses of the regulated property as a whole. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

24-01-43. Utility facility — Removal.

Any utility or transmission line hereinafter constructed contrary to the provisions of section 24-01-42 must be removed at the expense of the utility, when such removal is required for purposes of highway expansion.

Source:

S.L. 1959, ch. 222, § 2.

Notes to Decisions

Constitutionality.

The classification they established by this section and section 24-01-42 which restricts the placement of utility lines within 100 feet of state highways, but places no similar restrictions on the construction of fences, buildings, television towers, industrial facilities, or even a private road, does not deny equal protection because the legislature could reasonably have determined that the frequency with which utility lines are constructed near highways created the problem most in need of reform or that restricting the construction of utility lines would not materially diminish the value or usefulness of adjacent property, but that similar restrictions on other types of construction might materially diminish the value or usefulness of the property, thus resulting in a compensable taking unnecessarily costly to the state and unnecessarily detrimental to the landowner. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Highway Commissioner’s Consent.

Because the plaintiff corporation did not request the highway commissioner’s consent, it lacked standing to say that it had been harmed or adversely affected by the lack of standards or safeguards in this section and section 24-01-42 asserted to be unconstitutional. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Reasonable Uses.

Prohibiting a landowner, and thus his lessee or grantee, from constructing any electrical supply or communication line, or other pipeline within 100 feet of the center line of a state highway without the commissioner’s consent upon pain of removal at the expense of the utility, when such removal is required for highway expansion does nothing more than regulate one particular future use of property while leaving available to the property owner all other uses, thus, these sections do not prohibit all or substantially all reasonable uses of the regulated property as a whole. Grand Forks-Traill Water Users v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

24-01-44. Utility facility — Right of way for relocation.

Whenever highway improvements require the relocation of utility facilities, and it is deemed to be in the best interest of the state, the director or the board of county commissioners may acquire such right of way as may be required for such relocation, in the manner they are authorized by law to acquire highway right of way.

Source:

S.L. 1959, ch. 222, § 3.

24-01-45. Controlled-access facility — Commercial establishments prohibited.

No automotive service station or other commercial establishment for serving motor vehicle users may be constructed or located within the right of way of, or on publicly owned or publicly leased land acquired or used for or in connection with, a controlled-access facility.

Source:

S.L. 1959, ch. 221, § 1.

24-01-46. Clearing record title of right of way.

Any political subdivision, department, or agency of the state, holding an interest of record in any part of the right of way for any highway on the state highway system, shall upon application of the director, cause such interest to be conveyed to the state of North Dakota for the use and benefit of the department of transportation and no consideration for such conveyance may be required. This section may not be construed to require that lands or interest therein held by political subdivisions, departments, or agencies of the state, for other than highway purposes, be conveyed to the state without full consideration.

Source:

S.L. 1959, ch. 226, § 1.

24-01-47. Legislative intent — Access routes.

It is the intent of the legislative assembly that the director have sufficiently broad authority to provide, within means available, and with cooperation from political subdivisions, for an integrated highway system, including reasonable access from the interstate highways to the municipalities most directly affected by the construction of such highway.

Source:

S.L. 1959, ch. 235, § 1.

Cross-References.

Integrated highway system, declaration of legislative intent, see § 39-01-01.1.

24-01-48. Access routes to controlled-access facility.

Whenever the construction of an interstate, controlled-access highway, results in the removal from the state highway system, a highway which passes through or approaches within one mile [1.61 kilometers] of any incorporated municipality, the director may if conditions warrant, expend state highway funds to the extent of not over twenty-five percent of the cost to construct access routes on the federal aid secondary county system. Only such access routes may be constructed as are not over three miles [4.83 kilometers] in length and are necessary to provide as good or better access from such municipalities to the network of the state highway system, as existed prior to the construction of such interstate highway.

Such access routes may be constructed from the municipal limits to the interstate highway or in such other locations as will, in the opinion of the director, comply with the intent of the provisions of sections 24-01-47 and 24-01-48.

Source:

S.L. 1959, ch. 235, § 2.

24-01-49. Approach or escape road to be built at all dead end roads or intersections of county and state highways.

Whenever any highway on the state or county highway system has an intersection or dead end, there must be constructed, whenever feasible, an approach or escape road, and when not feasible, other protective devices such as warning signs, rumble strips, or barricades. This section applies to new road construction and reconstruction after July 1, 1975.

Source:

S.L. 1975, ch. 237, § 1.

24-01-50. No-mow transfer to interstate highways.

The department, in consultation with the game and fish department, shall negotiate with the United States fish and wildlife service and any other appropriate federal agency for the purposes of substituting the no-mow acres contained in the rights of way of United States highway 2 and United States highway 83 to the rights of way of interstate highway 94 or interstate highway 29, or both.

Source:

S.L. 1997, ch. 236, § 1.

24-01-51. Haying of no-mow areas.

Notwithstanding any other provision of law, a person owning land adjacent to an area within the right of way of a highway which is designated as a no-mow or managed-mow area may hay the no-mow or managed-mow area after July fifteenth without any payment or penalty.

Source:

S.L. 2001, ch. 251, § 1; 2003, ch. 12, § 3; 2005, ch. 40, § 7.

24-01-52. Multilane highway for United States highway 52.

The director of the department of transportation shall include, as part of the department’s project development process, a four-lane alternate when it develops the environmental document for the next major reconstruction project for United States highway 52 from reference point 52-101.683 to reference point 52-122.789. It is recommended that the four-lane alternative be selected as the preferred alternate and be constructed if environmental clearance is obtained.

Source:

S.L. 2007, ch. 251, § 1.

24-01-53. Cost recovery for relocation of utility facilities due to implementation of the American Recovery and Reinvestment Act of 2009. [Expired]

Expired under S.L. 2009, ch. 231, § 2.

24-01-54. Theodore Roosevelt expressway — United States highway 85.

Notwithstanding any previous designation, the department shall designate United States highway 85 from the South Dakota border to the junction of United States highway 2 and United States highway 2 from the Montana border to the junction of United States highway 85 as the Theodore Roosevelt expressway and at a minimum shall place signs along the highway designating that name and may use any appropriate signs donated to the department.

Source:

S.L. 2009, ch. 40, § 14.

24-01-55. Yellowstone trail — United States highway 12.

The department shall designate United States highway 12 from the South Dakota border to the Montana border as the Yellowstone trail and at a minimum shall place signs along the highway designating that name and may use appropriate signs donated to the department.

Source:

S.L. 2013, ch. 220, § 1.

24-01-56. Veterans memorial highway — State highway 22 — Continuing appropriation.

The department shall designate state highway 22 from the South Dakota border to the junction of state highway 22 and state highway 23 as the veterans memorial highway and shall place signs along the highway designating that name. The department may accept any appropriate signs or funds donated to the department for the placement of signs. Any donated funds are appropriated to the department on a continuing basis for the purpose of providing signs designating state highway 22 as the veterans memorial highway.

Source:

S.L. 2019, ch. 223, § 1, effective July 1, 2019.

24-01-57. Akicita (veteran) memorial highway — State highway 57 — Continuing appropriation.

The department shall designate state highway 57 from the junction of United States highway 281 and state highway 57 to the junction of state highway 57 and state highway 20 as the Akicita (veteran) memorial highway and shall place signs along the highway designating that name. The department may accept any appropriate signs or funds donated to the department for the placement of signs. Any donated funds are appropriated to the department on a continuing basis for the purpose of providing signs designating state highway 57 as the Akicita (veteran) memorial highway.

Source:

S.L. 2021, ch. 214, § 1, effective July 1, 2021.

CHAPTER 24-02 Director of the Department of Transportation

24-02-01. State highway department established — Commissioner is head of department. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-01.1. Department of transportation — Creation — Transfer of functions.

The department of transportation is established as an executive department of this state. Transferred to and vested in the department of transportation are the functions, powers, and duties of the following governmental agencies:

  1. The highway department, the highway commissioner, and the chief engineer, including titles 24 and 39, chapter 49-17.1, and sections 49-10.1-17, 49-17.2-27, and 55-01-01.
  2. The motor vehicle department and the registrar of motor vehicles, including title 39, chapter 57-40.3, and sections 26.1-23-03 and 26.1-41-02.

Source:

S.L. 1989, ch. 72, § 3; 1997, ch. 471, § 1.

Cross-References.

Validation of acts of board of county commissioners and highway commission, see § 1-06-02.

DECISIONS UNDER PRIOR LAW

Collective Bargaining Contracts.

State highway commissioner does not have an implied authority to enter exclusive collective bargaining agreements with employees of the state highway department or their selected representatives. American Fed'n v. Olson, 338 N.W.2d 97, 1983 N.D. LEXIS 374 (N.D. 1983).

Powers.

State highway department had power to include highways within state highway system and exclude others from it, but had no power to vacate established highway over which public acquired a right of passage. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

24-02-01.2. Department of transportation and director of the department of transportation to be substituted for motor vehicle department, registrar of motor vehicles, highway department, and highway commissioner.

Wherever the terms “motor vehicle department”, “registrar of motor vehicles”, “highway department”, or “highway commissioner”, or any derivative of those terms which, when used in context indicates an intention to refer to those persons or departments, shall appear in the North Dakota Century Code, the term “department of transportation”, or the term “director of the department of transportation”, as the case may be, shall be substituted therefor. It is the intent of the legislative assembly that the department of transportation and the director of the department of transportation must be substituted for, shall take any actions previously taken by, and shall perform all duties previously performed by the motor vehicle department, the registrar of motor vehicles, the highway department, and the highway commissioner.

Source:

S.L. 1989, ch. 72, § 2.

Cross-References.

Commissioner may allow public utilities to use right of way, see § 24-01-40.

Commissioner to approve designation and allocation of mileage on county road systems, see § 24-05-16.

Junkyards adjacent to highways, see N.D.C.C. ch. 24-16.

Manuals, preparation, see § 24-03-18.

Motor vehicle operators’ licenses, duties and powers regarding, see N.D.C.C. ch. 39-06.

One-way roadways, designation, see § 39-10-16.

Records of process received for nonresident motorists, see § 39-01-13.

Slow-moving vehicle emblem, design and positioning of, see § 39-21-50.

Traffic control devices, see §§ 39-13-06 to 39-13-08.

Vehicle weight restrictions, see § 39-12-03.

24-02-01.3. Director of the department of transportation — Appointment — Compensation.

The department of transportation must be managed and directed by the director of the department of transportation, who must be appointed by, and serve at the pleasure of, the governor. The director shall take the oath of office required of civil officers by section 44-01-05. The director shall receive compensation in the amount established by the governor within the limits of legislative appropriations.

Source:

S.L. 1989, ch. 72, § 4; 1993, ch. 45, § 9.

Cross-References.

Oath of civil officers, see § 44-01-05.

Travel expenses, see §§ 44-08-03 to 44-08-04.2, 54-06-09.

DECISIONS UNDER PRIOR LAW

Analysis

Suit Against Commissioner.

Suit against state highway commissioner in his official capacity is suit against state and subject to same defenses and immunities as though action were brought directly against state. Spielman v. State, 91 N.W.2d 627 (N.D. 1958), overruled on other grounds, Bulman v. Hulstrand Constr. Co., 521 N.W.2d 632 (N.D. 1994)

Termination.

Where state highway commissioner was convicted of felony, his term of office terminated pro tanto, without an opportunity for a hearing before the governor. State ex rel. Salisbury v. Vogel, 65 N.D. 137, 256 N.W. 404, 1934 N.D. LEXIS 180 (N.D. 1934).

Jurisdictional requisites in case of removal of state highway commissioner for cause were: notice of time, place of hearing, and charges, reasonable opportunity to defend, and a decision upon proofs of record supporting it. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

Certiorari was proper remedy to test jurisdiction of governor in proceeding to remove highway commissioner. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

Erroneous classification of employees as to salary by the highway commissioner is not enough, by itself, to constitute a ground for his removal from office. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

Governor was entitled to remove highway commissioner for failure to remedy and improve inadequate maintenance situation in highway system. State ex rel. Olson v. Welford, 65 N.D. 522, 260 N.W. 593, 1935 N.D. LEXIS 138 (N.D. 1935).

24-02-01.4. Structure of the department of transportation.

The department of transportation must be structured to promote efficient and effective operations consistent with fulfilling its statutory duties. The department of transportation must be organized into offices, divisions, and districts as the director of the department of transportation determines necessary, and as provided in this section.

  1. The director shall establish an office of driver and vehicle services to administer the department’s regulatory authority over motor vehicle titling and registration, operator licensing and traffic safety, and motor carriers. Operating expenses for functions performed by the department under chapters 39-04 and 39-05 must be funded by appropriations from collections made under those chapters before deposit into the fund provided by section 54-27-19.
  2. The director shall establish an office of state highways and engineering to administer the department’s authority and responsibilities over the construction, maintenance, and repair of highways in this state, including the operation of district offices.
  3. The director may establish an office of transportation planning to administer the department’s authority and responsibilities for planning all surface modes of transportation, budgeting, development of programs and projects, data collection and management, and research. Coordination must be established between the aeronautics commission planning section and the department of transportation office of planning for airport development as it pertains to surface access.
  4. The director shall establish an office of management services in the department to provide for the employment of human resources, finance and inventory control, automation, and other administrative services.

Source:

S.L. 1989, ch. 72, § 5; 1991, ch. 289, § 1.

24-02-01.5. Department of transportation — Administrative rules.

The department of transportation may adopt the administrative rules necessary to carry out its responsibilities and functions as created and transferred by sections 24-02-01.1 through 24-02-01.5. Rules adopted by the agencies whose functions relate to the functions or agencies created, transferred, or covered by sections 2-05-03, 24-02-01.1 through 24-02-01.5, subsections 7 and 11 of section 24-01-01.1, sections 24-02-13, 24-16-02, 24-17-02, subsections 11, 16, and 17 of section 39-01-01, subsection 1 of section 39-16-01, subsection 2 of section 49-17.1-01, subsection 1 of section 54-06-04, subsection 1 of section 54-27-19, subsection 6 of section 57-40.3-01, subsection 1 of section 57-43.1-01, section 57-43.1-44, subsection 6 of section 57-43.2-01, and section 57-43.2-37 remain in effect until they are specifically amended or repealed by the department.

Source:

S.L. 1989, ch. 72, § 6; 1993, ch. 272, § 1; 1995, ch. 350, § 17; 1999, ch. 245, § 1; 2001, ch. 548, § 1; 2003, ch. 531, § 1; 2005, ch. 341, § 1; 2005, ch. 340, § 1; 2005, ch. 94, § 6.

24-02-02. State highway commissioner — Appointment, term, removal, oath, bond, salary. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-02.1. Agreement for the construction of the Oahe bridge.

The director is authorized to execute an agreement with the federal government for the construction of a bridge over the Oahe Reservoir wherein the department agrees to hold the United States harmless and free from damages due to the construction or operation and maintenance of such bridge, except for damages due to the fault or negligence of the United States or its contractors.

Source:

S.L. 1993, ch. 273, § 1.

24-02-02.2. Authority to contract with adjoining states and provinces.

The director may contract with adjoining states and provinces to provide for the construction, reconstruction, repair, or maintenance of highways located on or near the border of each jurisdiction.

Source:

S.L. 1993, ch. 274, § 1.

24-02-02.3. Director may enter agreements with tribal governments.

Notwithstanding the provisions of chapter 54-40.2, the director may enter agreements with any one or more tribal governments for the purpose of construction and maintenance of highways, streets, roads, and bridges on the state highway system or for federally funded safety improvement projects on tribal-owned highways, streets, roads, and bridges.

Source:

S.L. 1995, ch. 259, § 1; 2009, ch. 233, § 1; 2017, ch. 200, § 1, effective August 1, 2017; 2021, ch. 216, § 1, effective August 1, 2021.

24-02-02.4. Agreement for the construction of the Fargo Moorhead metropolitan area flood risk management project impacting the state highway system.

The director may enter an agreement with the metro flood diversion authority regarding the portion of the construction of the Fargo Moorhead metropolitan area flood risk management project which will impact the state highway system. The agreement must address the construction and maintenance of the parts of the project which need to be constructed and maintained on the state highway system.

Source:

S.L. 2017, ch. 201, § 1, effective March 9, 2017.

24-02-02.5. Rest area cooperative agreement.

Notwithstanding any other provision of law, the director may enter a cooperative agreement with the Theodore Roosevelt national park painted canyon visitor center for the joint administration and operation of a rest area facility for use by the traveling public. The director may expend moneys from the state highway fund within the limits of legislative appropriations for administration and operational support of the rest area facility.

Source:

S.L. 2021, ch. 40, § 9, effective July 1, 2021.

24-02-03. Responsibilities of commissioner. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-03.1. Cooperation of director in matters of national defense.

In order to facilitate national defense, the director is hereby authorized to cooperate with the appropriate federal agency, when requested by it, in:

  1. Making of surveys, plans, specifications, and estimates for, and in the construction and maintenance of, flight strips and of roads and bridges necessary to provide access to military and naval reservations, defense industries, defense-industry sites, and sources of raw materials.
  2. Acquiring of land necessary for the construction of such flight strips and roads and bridges by purchase or condemnation in the manner provided by law for the purchase or condemnation of land required for state highway construction.
  3. Replacing existing highways and highway connections shut off from general public use at military and naval reservations and defense-industry sites.
  4. Entering into contracts in any manner approved by the appropriate federal agency for the construction of any such flight strips or roads.
  5. Performing such construction and maintenance work by force account, whether paid for in whole by federal funds or in part by federal funds and in part by funds provided by the state or any of its subdivisions.

Provided, that no cooperative venture may be entered into when any funds appropriated by the legislative assembly for highway purposes are to be expended thereby, unless such expended funds are to be reimbursed from federal sources.

Source:

S.L. 1971, ch. 266, § 1.

24-02-03.2. Director may protect roads from damage and negotiate settlement for damages.

Whenever federally financed construction or maintenance activities are likely to affect any public road within this state, the director is hereby authorized to take such action as may be necessary to protect such public road from any damages that may be caused, and to negotiate with any contractor or any officer or agency of the federal government for the repair of damage or extraordinary maintenance that may be required on such public road. If the public road affected is under the jurisdiction of any county, city, or township, the director shall obtain the concurrence of the appropriate governing board of such county, city, or township before any agreement is entered into or any other action is taken with respect to such public road.

Source:

S.L. 1971, ch. 266, § 2.

24-02-03.3. Central management system for all state-owned licensed motor vehicles.

  1. The director shall establish within the department a central vehicle management system to regulate the operation, maintenance, and management of all motor vehicles owned or leased by the state subject to registration under chapters 39-04 and 39-05. Upon the request of a state agency and an agreement between the agency and director for the use of the motor vehicle-related equipment, the director may purchase or lease motor vehicle-related equipment and include that equipment within the system. The director shall provide a uniform method of documenting the use and cost of operation of motor vehicles and motor vehicle-related equipment in the system. The director shall advise the director of the office of management and budget as to the need to acquire or dispose of system motor vehicles. The specifications for highway patrol vehicles to be acquired may be set by the highway patrol superintendent. Every state agency, institution, department, board, bureau, and commission unless exempted by the director must use the system. At the request of the director of the North Dakota agricultural experiment station, certain vehicles used in farming operations at the agronomy seed farm and branch research centers shall be exempt from the requirements of this section. However, an agency, institution, department, board, bureau, or commission may authorize the use of an employee’s personal motor vehicle pursuant to subsection 4 of section 54-06-09.
  2. The director may enter into an agreement with a state employee who has a disability requiring a specially-equipped vehicle to pay a mileage rate greater than the rate established in section 54-06-09 for the employee’s use of the employee’s specially-equipped motor vehicle while conducting state business. The rate must be based on the rate provided in section 54-06-09, increased by the actual cost per mile caused by the special equipment, and may not exceed the cost associated with the special equipment expressed as the new value plus the depreciated fair market value in eight years divided by two, divided by twenty thousand miles.
  3. Each entity required to use the system shall submit records of the operation of each vehicle as directed by the director.
  4. The director may enter an agreement for the use of the motor vehicle-related equipment with the North Dakota art museum established in section 54-02-11.

Source:

S.L. 1983, ch. 303, § 1; 1987, ch. 314, § 1; 1995, ch. 260, § 1; 1999, ch. 246, § 1; 2001, ch. 252, § 1; 2001, ch. 473, § 1; 2007, ch. 20, § 8; 2015, ch. 47, § 19, effective July 1, 2015.

24-02-03.4. Transfer of motor vehicles.

The title or other documents representing ownership of a motor vehicle owned or leased by the board of higher education and the institutions under its jurisdiction must be transferred to the director on August 1, 1995.

Source:

S.L. 1987, ch. 314, § 2; 1989, ch. 330, § 1; 1995, ch. 260, § 2.

24-02-03.5. User charges — Incidental revenues.

Each entity using the central vehicle management system shall pay a user charge to the director. The user charge will be set by the director and must be based upon the actual cost of the service provided, including depreciation. The user charges and any proceeds from insurance claims, motor vehicle sales, commercial refunds or rebates, or similarly derived proceeds must be remitted to the state treasurer for deposit in the fleet services fund.

Source:

S.L. 1987, ch. 314, § 3; 2007, ch. 316, § 1.

24-02-03.6. Board of higher education fleet committee. [Expired]

Expired under S.L. 1995, ch. 260, § 4.

24-02-04. Commissioner to devote full time to office. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-05. Office hours, sessions, and hearings of commissioner. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-06. Chief engineer — Qualifications, salary. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-07. Expenses of department employees.

In addition to the compensation received for their service, employees of the department are entitled to receive their expenses actually and necessarily incurred in the performance of their duties, the amount of the expenses so allowed to be fixed and determined by the director.

Source:

S.L. 1953, ch. 177, § 11; R.C. 1943, 1957 Supp., § 24-0207.

Cross-References.

Travel expenses, see §§ 44-08-03 to 44-08-04.2, 54-06-09.

24-02-07.1. Engineering scholarships established. [Repealed]

Repealed by S.L. 1967, ch. 206, § 2.

24-02-07.2. Contract of employment or repayment a prerequisite. [Repealed]

Repealed by S.L. 1967, ch. 206, § 2.

24-02-07.3. Prequalification, selection, and contracting for consultants — Solicitations.

  1. The director may prequalify, select, and contract for consultants in the area of engineering, land surveying, architecture, traffic safety, business administration, and related matters. The prequalification of the consultant must be based on detailed information regarding firm organization, qualifications of personnel, type of work the firm is qualified to perform, previous work experience, and financial status and must be provided to the director in a form approved by the director. If a consultant meets the criteria set by the director, the director shall prequalify the consultant, noting any limitations as to the type or amount of the work the consultant may perform. When a consultant is prequalified, the consultant is entitled to receive requests for proposals, proposals, and other solicitations for work in the areas in which the consultant is prequalified without any other screening or qualification process. The period of prequalification may not exceed three years. The qualifications of the consultant for a specific project must be determined according to the criteria in subsection 5 of section 54-44.7-03. The director shall publish a prequalification solicitation at least once each year and need not comply with the provision in subdivision c of subsection 2 of section 54-44.7-03 requiring the publication of an invitation for a specific project. The selection and contract negotiation must be performed according to subsections 6 and 7 of section 54-44.7-03.
  2. The director is not required to comply with subsection 3 of section 54-44.7-03 or 54-44.7-04 and may procure the services of consultants for:
    1. Projects with consultant costs estimated to be not more than one hundred thousand dollars through direct negotiation with a selected prequalified firm, after considering the nature of the project; the proximity of the architect, engineer, construction management, or land surveying services to the project; the capability of the architect, engineer, construction manager, or land surveyor to produce the required services within a reasonable time; past performance; and the ability to meet project budget requirements. Fees paid pursuant to this subdivision during the twelve months immediately preceding negotiation of the contract by the department of transportation for professional services performed by any one architectural, engineering, or land surveying individual or firm may not exceed two hundred thousand dollars. A person seeking to render professional services under this section shall furnish the department a list of professional services previously provided to the department, including the fees paid during the twelve months immediately preceding the contract being negotiated. If the department determines that it is appropriate, the department may use the procurement procedures in subdivision b or c in place of the procedures in this subdivision.
    2. Projects with consultant costs estimated to be greater than one hundred thousand dollars but not more than three hundred thousand dollars by notifying all prequalified firms in the specific area of need, allowing a minimum of seven calendar days to respond, and following the remaining process in subsections 4 through 7 of section 54-44.7-03. If the department determines that it is appropriate, the department may use the procurement procedures in subdivision c in place of the procedures in this subdivision.
    3. Projects with consultant costs estimated to be greater than three hundred thousand dollars by notifying all prequalified firms, allowing a minimum of twenty-one calendar days to respond, and following the remaining process in subsections 4 through 7 of section 54-44.7-03.
  3. Notwithstanding any other provision of law, when soliciting the services of consultants under this section, the director may include multiple projects in one solicitation. The requirements for the project within the highest dollar threshold under subsection 2 apply to all of the projects in the multiple project solicitation.

Source:

S.L. 1993, ch. 275, § 1; 2005, ch. 247, § 1; 2011, ch. 198, § 1.

24-02-08. Engineering consulting services — Coordinator of highway, road, and street program within state.

The director may provide consulting engineering services upon request of any governmental unit.

The director has the authority and responsibility for the coordination of the total highway, road, and street program within this state, including the designation of systems, which the director may functionally classify as to the types of service, and the development of construction standards as hereinafter provided for.

Source:

S.L. 1953, ch. 177, §§ 12, 13; R.C. 1943, 1957 Supp., § 24-0208; S.L. 1975, ch. 236, § 5; 1999, ch. 245, § 2.

24-02-09. Departmental budget estimates — Departmental budgets.

Not later than the fifteenth day of May of each year, each head of a department, division, section, or activity of the department who may be directed and designated to do so by the director shall submit to the director an outline of the work which should be undertaken by such department, division, section, or activity during the following fiscal year and the estimated expense thereof, in such detail as the director may prescribe, together with such other cost data and information as the director shall direct.

Not later than the thirtieth day of June of each year, the director shall adopt a departmental budget wherein must be allocated, set aside, and appropriated to each department, division, section, or activity of the department for the ensuing fiscal year a definite and fixed sum or allowance in such amount and with such detail as the director may elect for the use and purpose specified in such departmental budget. Nothing herein, however, prevents the director from adding to, amending, revising, or reducing from time to time, and as circumstances may warrant, such departmental budget.

Source:

S.L. 1953, ch. 177, §§ 14, 15; R.C. 1943, 1957 Supp., § 24-0209; S.L. 1959, ch. 230, § 1.

24-02-10. Biennial report.

The director shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1953, ch. 177, § 16; R.C. 1943, 1957 Supp., § 24-0210; S.L. 1963, ch. 346, § 24; 1973, ch. 403, § 17; 1975, ch. 466, § 18; 1995, ch. 350, § 18.

24-02-11. Records of department open to public — Certain records not open to public — Certified copies.

  1. The director is custodian of, and shall preserve, the files and records of the department. The files and records of the department must be open to public inspection under reasonable regulations. However, records relating to the financial condition of any party are not open to public inspection if that party:
    1. Has applied for prequalification as a bidder;
    2. Is designated as a prequalified bidder pursuant to this chapter;
    3. Is an applicant under the disadvantaged business enterprise program;
    4. Makes a submission in furtherance of being selected as a consultant;
    5. Is selected as a consultant; or
    6. Is subject to audit by the department.
  2. Copies of files and records of the department, when certified by the director as being true copies, must be received in evidence in any court in the state with the same force and effect as the originals.
  3. The books of account of the department must be kept accurately and completely as must be prescribed or approved by the state auditor, which must show among other things the following facts:
    1. The cost of maintaining the department, including the salaries and expenses of the individual members thereof.
    2. The amounts of money expended for the construction or maintenance of the state highways, when and where, and upon what job or portion of the road expended, so that the cost per mile [1.61 kilometers] of the construction or maintenance can be ascertained with ease.
    3. The amount of road equipment and materials purchased and when and where and from whom purchased. The book also must show the price paid for each item. The original invoice or a photographic copy thereof must form a part of the permanent files and records in the department.
    4. The director shall charge a uniform fee, by type of record.

Source:

S.L. 1953, ch. 177, § 17; R.C. 1943, 1957 Supp., § 24-0211; S.L. 1967, ch. 207, § 1; 1979, ch. 187, § 39; 1985, ch. 300, § 1; 1993, ch. 274, § 2; 1997, ch. 237, § 1.

Cross-References.

Access to public records, see § 44-04-18.

Evidence of public records, see N.D.R.Ev. 1005.

24-02-12. Auditing and payment of payrolls.

Payroll vouchers prepared on forms adopted in accordance with section 24-02-34 must be certified and approved by the director and the same must be presented to the office of management and budget which shall prepare and issue a warrant signed by the state auditor for each person named thereon without submitting such payroll voucher to the office of the budget for its examination and approval.

Source:

S.L. 1953, ch. 177, § 18; R.C. 1943, 1957 Supp., § 24-0212; S.L. 1959, ch. 372, § 31.

24-02-13. Payment of estimates on contract or deposits in condemnation.

Whenever any estimate or allowance for payment, except a final estimate or payment subsequent to a final estimate, is allowed, or granted, on a contract entered into by the department, or a deposit is to be made with the clerk of district court in a condemnation proceeding, and the estimate is vouchered by the department for presentation to the office of management and budget, instead of submitting the estimate to the contractor or clerk of district court for certification, the director of the department or the director’s authorized designee shall make the following certificate, in lieu of the certificate otherwise required by law, which must be printed on the voucher or claim:

Estimate certificate. I hereby certify that the within estimate or claim is just and true, that the contractor herein named has rendered the services and furnished the material herein charged, that they are of the value claimed, that no part thereof has been paid, and that the foregoing estimate or claim is supported by a proper contract and bond on file in the department or that the purpose of the payment to a clerk of district court is pursuant to law and for the taking of property by condemnation. Director, Department of Transportation

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After a certified estimate or deposit with a clerk of district court has been approved for payment by the director, the same must be presented to the office of management and budget for payment. The office of management and budget thereupon shall prepare and issue a warrant therefor signed by the state auditor without submitting the voucher or claim to the office of the budget for examination and allowance. The foregoing procedure does not apply to the final estimate or allowance to a contractor, nor to any estimate or allowance subsequent or supplemental to the final estimate, but the final estimate or supplemental allowance must conform to the provisions of law relative to the certification and approval of any other claim or demand; nor does the procedure apply to payments to property owners involved in the taking of property in any condemnation proceeding.

Source:

S.L. 1953, ch. 177, § 19; R.C. 1943, 1957 Supp., § 24-0213; S.L. 1959, ch. 372, § 32; 1963, ch. 214, § 1; 1985, ch. 301, § 1; 1989, ch. 72, § 9.

24-02-14. Acts prohibited. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

24-02-15. Action against employee of department on bond.

The state, and civil government divisions thereof, and any person damaged by any wrongful act or omission of any bonded employee of the department in the performance of the employee’s official duties may maintain an action on the employee’s bond for the recovery of damages so sustained.

Source:

S.L. 1953, ch. 177, § 21; R.C. 1943, 1957 Supp., § 24-0215.

24-02-16. Basis of contracts for construction work.

The director may request bids and award contracts for construction work requiring the contractor to furnish all equipment, labor, materials, and supplies for each particular contract or project, or requiring the director to furnish and provide the contractor with materials and supplies as the director may elect. If the director elects to provide materials and supplies for any project or construction work, the director shall notify the office of management and budget of the fact that the director has elected to furnish the materials and supplies. The office of management and budget may either exempt the purchase and allow the director to request and let bids and make the purchase, or the office of management and budget may handle the bidding and purchasing through its central purchasing agency. Either the office of management and budget or the director shall request proposals or bids for the total and aggregate of the materials and supplies for any and all projects or construction work according to the class, type, and nature of the materials and supplies and may award a contract or contracts therefor upon a basis deemed efficient and economical, whether upon the basis of delivery to the construction project directly or to a central storehouse or storehouses maintained by the state. The materials and supplies purchased by the office of management and budget or the department of transportation may be delivered to the project or construction work without expense to the contractor doing the construction work or may be sold to the contractor at cost and made to constitute a part of the construction cost, as the director may elect.

Source:

S.L. 1953, ch. 177, § 68; R.C. 1943, 1957 Supp., § 24-0216; S.L. 1959, ch. 372, § 33; 1999, ch. 245, § 3.

Cross-References.

Contractors, see N.D.C.C. ch. 43-07.

Department of accounts and purchases, see N.D.C.C. ch. 54-44.

24-02-17. Contracts — Bids.

Whenever the cost of any construction improvement exceeds the sum of twenty thousand dollars, the department shall proceed to advertise the same, request bids, and award such contracts in the manner provided in this chapter. The department may accept bids and bid bonds that are submitted by electronic media such as the internet. The director may adopt the procedures and rules necessary to implement this section.

Source:

S.L. 1953, ch. 177, § 69; 1953, ch. 178, § 1; R.C. 1943, 1957 Supp., § 24-0217; S.L. 1959, ch. 231, § 1; 1959, ch. 372, § 34; 1961, ch. 203, § 1; 1981, ch. 291, § 2; 1985, ch. 302, § 1; 1993, ch. 274, § 3; 2003, ch. 221, § 1.

Cross-References.

Purchase of equipment and materials from federal government without advertising for bids, see § 24-03-13.

Collateral References.

Determination of amount involved in contract within statutory provision requiring public contracts involving sums exceeding specified amount to be let to lowest bidder, 53 A.L.R.2d 498.

Personal services: contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake or that of his employee, 2 A.L.R.4th 991.

24-02-18. Reconstruction work without letting contract.

The department may, if in the opinion of the director, the public interest and the preservation of the state highways from deterioration requires it, do the work necessary for minor grading reconstruction on any state highway without letting a contract for such reconstruction work, or the director may contract with the county in which any such reconstruction project is located, to perform such reconstruction work on a cost basis. Any such reconstruction projects may include any project that is eligible for federal aid. Any funds available for highway reconstruction purposes may be expended in carrying out the provisions of this section.

Source:

S.L. 1953, ch. 177, § 70; R.C. 1943, 1957 Supp., § 24-0218; S.L. 1985, ch. 302, § 2.

Cross-References.

Force accounts in emergencies, see § 24-03-04.

24-02-19. Request for bids — How solicited.

Any request for bids for construction work or the improvement of any state highway, or any structure in excess of the amount specified in section 24-02-17, must be advertised by publication once prior to the opening of such bids, in the official newspaper of the county in which the project is located. Any other advertisement made by the director may utilize one or more of the following methods:

  1. The publication of the solicitation in a daily newspaper having a general circulation in the area where the project is located.
  2. The publication of the solicitation in commonly recognized trade journals or similar publications that advertise the solicitation of bids on public work projects.
  3. The written solicitation of all qualified contractors appearing on the bidders’ list as maintained by the department of transportation.

When the solicitation is by publication, it must be made at least three weeks prior to the date of the bid opening. The solicitation must state where the bidder may inspect the plans and specifications, with whom bids must be filed, and the time and place where bids must be opened. Such place must be the office of the department.

All requests for bids for the purchase of equipment, materials, and supplies, exclusive of repairs to equipment and except as provided in section 25-16.2-02 in excess of the sum of twenty thousand dollars must be advertised in the official newspaper of the county in which the department district is located. The advertisement must be published once a week for a period of two successive weeks prior to the opening of such bids.

Source:

S.L. 1953, ch. 177, § 71; 1953, ch. 178, § 2; R.C. 1943, 1957 Supp., § 24-0219; S.L. 1961, ch. 203, § 2; 1985, ch. 302, § 3; 1987, ch. 329, § 4; 1991, ch. 288, § 2; 1993, ch. 274, § 4.

24-02-20. Bids, where opened — Requirements — Bonds or checks of three lowest bidders retained.

All bids must be opened at the time and place specified in the advertised request for bids. Each bid must be accompanied by a certified or cashier’s check of the bidder on a solvent bank, in an amount equal to five percent of the bidder’s bid, to be forfeited to the state highway fund should the bidder fail to effect a contract within ten days after notice of an award or by a bidder’s bond in a sum equal to ten percent of the full amount of the bid, executed by the bidder as principal and by a surety company authorized to do business in this state, conditioned that if the principal’s bid be accepted and the contract awarded to the principal, the principal, within ten days after notice of award, will execute and effect a contract in accordance with the terms of the principal’s bid and a contractor’s bond as required by law and the regulations and determinations of the department.

All bonds or checks, except those of the responsible bidders submitting the three lowest and best bids, must be returned to the bidders promptly upon opening such bids. The bond or check of the responsible bidder submitting the lowest and best bid may be cashed or retained until the contract has been awarded and executed properly. The bonds or checks of the responsible bidders submitting the second and third lowest and best bids may be returned to the bidders when the department has determined to whom the contract is to be awarded.

Source:

S.L. 1953, ch. 177, §§ 72, 73; R.C. 1943, 1957 Supp., § 24-0220; S.L. 1959, ch. 232, § 1; 1961, ch. 124, § 2; 1963, ch. 215, § 1; 1967, ch. 208, § 1.

Cross-References.

Provision relating to compensation required in contractor’s bonds, see § 65-04-10.

Collateral References.

Differences in character or quality of materials, articles, or work as affecting acceptance of bid for public contract, 27 A.L.R.2d 917.

Public contracts authority of state or its subdivision to reject all bids, 52 A.L.R.4th 186.

24-02-21. Contracts on informal bids — How let.

Informal bids must be requested and the contract therefor may be awarded upon such basis and procedure as the director directs.

Source:

S.L. 1953, ch. 177, § 74; R.C. 1943, 1957 Supp., § 24-0221.

24-02-22. Separate proposals on each type of work.

Whenever any highway improvement involves structural work, dirt grading and traffic service gravel, graveling, stabilizing and oiling, or concrete surfacing, or any two or more of them, then wherever practicable and not contrary to any federal law or regulations, separate proposals and bids must be received on each separate type of work.

Source:

S.L. 1953, ch. 177, § 75; R.C. 1943, 1957 Supp., § 24-0222.

24-02-23. Award of contracts — Bonds.

Each and every contract in excess of the sum specified in section 24-02-17 must be awarded by the department to the responsible bidder submitting the lowest and best bid, but said department may reject all bids. If no satisfactory bid or bids are received, new bids may be called for. The successful bidder must be required to furnish a suitable bond in at least the amount of the contract and with such surety as may be determined by the department and as approved by it.

Source:

S.L. 1953, ch. 177, § 76; R.C. 1943, 1957 Supp., § 24-0223; S.L. 1959, ch. 231, § 2; 1985, ch. 302, § 4.

24-02-24. Participating county or municipality to be notified of opening of bids.

In the event that any county or municipality participates in and defrays the cost, or part of the cost, of any improvement to be made by the department, the director shall notify the board of county commissioners of the county so interested, or the proper city officials of any municipality, of the time set for opening bids.

Source:

S.L. 1953, ch. 177, § 77; R.C. 1943, 1957 Supp., § 24-0224.

24-02-25. Payments made monthly to contractors.

Payment must be made monthly to the contractor for all work done or material furnished, in such amount as must be determined by the director, but in no event less than ninety percent nor more than ninety-nine percent thereof, and payment must be made in full upon the completion of the contract and acceptance of the work.

Source:

S.L. 1953, ch. 177, § 78; R.C. 1943, 1957 Supp., § 24-0225; S.L. 1959, ch. 233, § 1.

24-02-25.1. Claims against project — Notice of claim — When filed — Where filed.

Any person who has furnished labor, materials, or supplies on a contract awarded under section 24-02-23, and who has not been paid in full at the time of final acceptance of the project by the department, has the right to file a claim against the contractor and the surety furnishing the performance bond.

Notice of the claim must be given, in writing, to the contractor or the surety furnishing the performance bond and must provide a clear and concise statement of the labor, materials, and supplies furnished, to whom it was furnished, and the monetary value thereof. The claim must bear interest, on each transaction for labor, materials, or supplies, commencing thirty days after the last transaction. The rate of interest must be the rate provided in section 28-20-34. The notice of the claim must be made by certified mail postage prepaid, in an envelope addressed to the contractor at any place the contractor maintains an office or has a residence and posted within one hundred eighty days from the date on which the person completed the contribution giving rise to the claim.

Source:

S.L. 1983, ch. 304, § 1; 1985, ch. 303, § 1; 1987, ch. 316, § 1.

Collateral References.

Highway meridian barriers, governmental tort liability as to, 58 A.L.R.4th 559.

24-02-25.2. Actions against contractor and surety — Time.

Any person who has furnished labor, materials, or supplies and made a claim under section 24-02-25.1 has the right to commence an action to recover the amount of the person’s claim against the contractor or surety within one year of the date of the final acceptance of the project by the department.

Source:

S.L. 1983, ch. 304, § 2.

24-02-26. Controversies to be arbitrated — Arbitrators — How named.

A controversy arising out of a contract for the construction or repair of a highway entered by the director must be submitted to arbitration under this chapter and chapter 32-29.2. A person that voluntarily enters a contract for the construction or repair of a highway is deemed to have agreed to arbitration of a controversy arising out of that contract. For a claim for less than one hundred thousand dollars, only one arbitrator may be jointly selected by the parties. For a claim for one hundred thousand dollars or more, three persons comprise the arbitration board.

Source:

S.L. 1953, ch. 177, § 79; R.C. 1943, 1957 Supp., § 24-0226; S.L. 1995, ch. 261, § 1; 2011, ch. 199, § 1.

Notes to Decisions

Constitutionality.

Compulsory arbitration of disputes arising out of highway construction and repair contracts is not denial of due process under Art. I, §§ 13 and 22 of state constitution and Fourteenth Amendment of United States Constitution, nor denial of right to jury trial reserved under Art. I, § 7, of state constitution, and did not violate former Art. IV, § 120, of state constitution which provided that tribunal of conciliation has no power to render obligatory judgment on parties unless parties have voluntarily submitted such matter and have agreed to abide by judgment of such tribunal. Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431, 1969 N.D. LEXIS 66 (N.D. 1969).

Appeal by Arbitrators.

Where arbitration board did not call or hold a meeting with respect to an adverse decision of district court in a proceeding for a writ of prohibition in which the board was a party and no official action was taken by the arbitrators to appeal, action by two individual members of the board concerning an appeal did not constitute the action of the arbitrators and there was no authorized appeal to the supreme court. State ex rel. Hjelle v. Bakke, 117 N.W.2d 689, 1962 N.D. LEXIS 93 (N.D. 1962).

Arbitration Exclusive Remedy.

Pursuant to this section, subcontractor may arbitrate its claims against both highway commissioner and prime contractor, but such claims must be asserted in separate proceedings and arbitration is exclusive remedy for all parties. Hjelle v. Sornsin Constr. Co., 173 N.W.2d 431, 1969 N.D. LEXIS 66 (N.D. 1969).

Arbitrator’s Bias.

The partiality or bias which will overturn an arbitration award must be certain and direct, and not remote, uncertain or speculative. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

Where an arbitrator’s bias is known prior to the hearing, the failure to object constitutes a waiver of that issue. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

Where an arbitrator’s alleged bias was not known prior to the hearing but only became apparent, at least to the highway department, by the manner and content of the arbitrator’s questioning, the highway department’s neglect to object did not constitute a waiver. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

In an arbitration proceeding between the highway department and a contractor, the department failed to establish bias of one of the arbitrators for the contractor where, although the department claimed difficult questioning by the arbitrator demonstrated his partiality, the arbitrators were expressly invited to question witnesses in a wide open manner, and the arbitrator, an expert in the field of highway construction, should have been expected to be demanding and probing; moreover, the department conceded the arbitrator’s alleged bias did not keep out any evidence the department sought to introduce. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

Claims Against Third Parties.

Where plaintiff contracted for construction of a federal aid project with the North Dakota Department of Transportation (DOT), plaintiff’s tort claims against defendant, who separately contracted with DOT, fell within scope of the contract and were subject to arbitration in accordance with this section. Gratech Co., Ltd. v. Wold Eng'g, P.C., 2003 ND 200, 672 N.W.2d 672, 2003 N.D. LEXIS 225 (N.D. 2003).

Irregularities in Arbitration Proceedings.

Although generally the rules of evidence are not strictly applied in arbitration proceedings, and the parties agreed the hearing would be conducted on an informal basis, irregularities in arbitration proceedings may be waived by a failure to object. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

Issue “Arising” Out of Contract.

Imposition of sanctions by highway department for contractor’s alleged violation of contract provision requiring a minimum 10 percent of minority business enterprise participation under the contract arose out of the contract and, under this section, the issue was an appropriate subject for arbitration. Byron's Constr. Co. v. North Dakota State Highway Dep't, 448 N.W.2d 630, 1989 N.D. LEXIS 231 (N.D. 1989).

Standard of Review.

The effect of applying the clearly irrational standard of review is to give to the arbitrators every benefit of every doubt. It affords them the widest latitude to exercise their authority and arrive at their decision without the customary restraints of traditional judicial review. It is but a reflection of the strong public policy favoring the arbitration process. There are no reasons compelling or persuasive enough to warrant revising the completely irrational standard of review. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

An arbitration award would not be vacated pursuant to former section 32-29-08(4) unless the award was completely irrational. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

The definitive constituents of a completely irrational award cannot be formulated in the abstract but, like all legal principles, can best be developed on a case-by-case basis. Scherbenske Excavating v. North Dakota State Highway Dep't, 365 N.W.2d 485, 1985 N.D. LEXIS 281 (N.D. 1985).

Timeliness of Demand for Arbitration.

The proper forum for determining the timeliness of the demand for arbitration of construction company’s claims under two construction contracts with the state highway department was the arbitration board and not the district court. State v. Stremick Constr. Co., 370 N.W.2d 730, 1985 N.D. LEXIS 353 (N.D. 1985).

Collateral References.

Participation in arbitration proceedings as waiver to objections to arbitrability under state law, 56 A.L.R.5th 757.

24-02-26.1. Condition precedent to contractor demand for highway construction arbitration — Claims for extra compensation.

In addition to the provisions of section 24-02-30, full compliance by a contractor with the provisions of this section is a condition precedent to the contractor’s right to demand arbitration. If the contractor believes the contractor is entitled to additional compensation for work or materials not covered in the contract or not ordered by the engineer as extra work or force account work in accordance with the contract specifications, the contractor shall, prior to beginning the work which the claim will be based upon, notify the engineer in writing of the intent to make claim for additional compensation. If the basis for the claim does not become apparent until the contractor has commenced work on the project and it is not feasible to stop the work, the contractor shall immediately notify the engineer that the work is continuing and that written notification of the intent to make claim will be submitted within ten calendar days. Failure of the contractor to give the notification required and to afford the engineer facilities and assistance in keeping strict account of actual costs will constitute a waiver of claim for additional compensation in connection with the work already performed. Notification of a claim, and the fact that the engineer has kept account of the costs involved, may not be construed as proving or substantiating the validity or actual value of the claim.

A contractor submitting a claim for compensation under this section, personally or on behalf of another person or entity, must do so in writing, not later than ninety days after the department has submitted the final estimate to the contractor. The claim must state the monetary amount of the claim, the reason for the claim, when the loss was incurred, and a short statement of the factual situation under which the claim arose. The claim must be made under oath or equivalent affirmation.

The director shall act on claims of less than three million dollars within sixty days after the claim is served upon the director. The director shall act on claims of three million dollars or more within one hundred eighty days after the claim is served upon the director. The contractor and the director may negotiate a supplemental agreement for the claim items that are accepted by the director, and the director shall immediately pay the contractor for any additional compensation resulting from the supplemental agreement. The contractor may demand arbitration on the remaining claim items within ninety days after the contractor has been notified of the director’s action on the claim.

The contractor shall make available to the department and allow the department to examine and copy all of the contractor’s records, documents, worksheets, and other data which are pertinent to the justification of the claim and to the substantiation of all costs related to the claim. The department shall also make available to the contractor all of the department’s records, documents, worksheets, and other data which are pertinent to the department’s response to the claim.

Source:

S.L. 1983, ch. 305, § 1; 1987, ch. 317, § 1; 1989, ch. 331, § 1; 2007, ch. 252, § 1.

Notes to Decisions

Lack of Timely Notice As Waiver.

Where work and materials for which contractor sought additional compensation were not part of the original contract language or a modification of the contract between the parties, nor the result of a change order or extra work order by the engineer, contractor was required to give notice under this section, as a prerequisite to claiming additional compensation beyond the contract price, and its failure to give such timely written notice constituted a waiver of its right to claim additional compensation and a failure of the condition precedent to demand arbitration of the matter. Byron's Constr. Co. v. North Dakota State Highway Dep't, 448 N.W.2d 630, 1989 N.D. LEXIS 231 (N.D. 1989).

Subcontractor was required to file a written notice of claim as a prerequisite to arbitrating its claims against the Department of Transportation (DOT) because the work for which the subcontractor sought additional compensation was not provided for in the original contract, and the arbitrators correctly determined that the subcontractor waived its right to arbitrate its claims by failing to file a notice of claim in compliance with N.D.C.C. § 24-02-26.1 and the provisions of the contract. Gratech Co., Ltd. v. N.D. DOT, 2004 ND 61, 676 N.W.2d 781, 2004 N.D. LEXIS 68 (N.D. 2004).

Notice.

The notice requirement under this section requires a contractor to give timely written notice as a prerequisite to claiming additional compensation unless the work or materials for which additional compensation is sought have been ordered by the engineer as extra work or force account work. Byron's Constr. Co. v. North Dakota State Highway Dep't, 448 N.W.2d 630, 1989 N.D. LEXIS 231 (N.D. 1989).

24-02-27. Arbitration demand — District court may appoint arbitrators if parties fail.

  1. Unless a party submits the dispute to the American arbitration association, the arbitrators must be selected in accordance with this section. The party desiring arbitration of claims for more than one hundred thousand dollars shall serve a written demand upon the adverse party. The demand must designate an arbitrator and must describe and detail all claim items that are submitted to arbitration. The party served with the demand shall respond in writing within thirty days, and the response must designate a second arbitrator and must explain the respondent’s position concerning each claim item. If the respondent does not designate the second arbitrator within thirty days, the claimant may apply to the district court of the judicial district in which the project, or any part of the project, is located for the appointment of the second arbitrator. If the two arbitrators do not designate the third arbitrator within thirty days after the second arbitrator is designated, either party may apply to the district court for the appointment of the third arbitrator. The proceedings in the district court are governed by the rules of civil procedure concerning motions.
  2. The same procedure applies to the parties for claims involving less than one hundred thousand dollars, except that the parties jointly shall select the arbitrator after the demand and response.

Source:

S.L. 1953, ch. 177, § 80; R.C. 1943, 1957 Supp., § 24-0227; S.L. 1983, ch. 306, § 1; 1989, ch. 331, § 2; 1995, ch. 261, § 2; 2011, ch. 199, § 2.

24-02-28. Procedure for arbitration.

After a board of arbitration has been appointed, a submission in writing must be executed as provided in section 32-29.3-06, but the submission must provide for the entry of judgment upon the award by the district court of the county in which the improvement, or some part thereof, involved in the contract is located. The county must be specified in the submission. The submission must be executed by the director. After submission of the arbitration agreement, the arbitration must proceed in accordance with the provisions of chapter 32-29.3, unless a party submits the dispute to arbitration in accordance with the construction industry arbitration rules of the American arbitration association. If the rules of the American arbitration association conflict with North Dakota law, North Dakota law governs. The decision of the arbitrators must be in writing and must state the basis for the decision.

Source:

S.L. 1953, ch. 177, § 81; R.C. 1943, 1957 Supp. § 24-0228; S.L. 1987, ch. 408, § 21; 1995, ch. 261, § 3; 2007, ch. 252, § 2.

24-02-29. Arbitration may proceed although one party fails to agree.

If either party refuses to submit to arbitration as provided in this chapter, that party must be deemed to have waived all claims and demands, and the arbitrators shall proceed to determine the controversies set forth by the moving party according to the justice of the case. Judgment must be entered upon the award of such arbitrators in all things the same as though the submission to arbitration has been signed by both parties.

Source:

S.L. 1953, ch. 177, § 82; R.C. 1943, 1957 Supp., § 24-0229.

24-02-30. Conditions precedent to demand for arbitration against director.

No right exists to demand arbitration against the director until the conditions specified in this section have been complied with. The contractor shall give the director notice in writing that the contractor claims the contract has been or will be performed fully on a day stated, which may not be less than ten days after the giving of such notice. At the time stated in the notice the director shall cause the work to be inspected, and if the director claims the work has not been completed, the director, with all reasonable dispatch, having regard to the early completion of the work, shall specify the particulars in which it is incomplete and shall direct that it be completed accordingly, or if the director considers further work necessary to bring the project up to the desired standard for acceptance either by the director or the federal highway administration, even though the director considers such contract complete, the director likewise may specify any such additional work. The contractor shall proceed with all reasonable dispatch, having due regard to weather conditions, with the performance of all such additional work with a view to a speedy completion of the project. When the contractor claims in good faith, supported by affidavit furnished to the director, that the contractor has completed such additional work according to the specifications furnished to the contractor, and the director fails for ten days to accept such work as completed, the contractor has the right to institute proceedings under this chapter.

Source:

S.L. 1953, ch. 177, § 83; R.C. 1943, 1957 Supp., § 24-0230; 2017, ch. 57, § 5, effective August 1, 2017.

Notes to Decisions

Timeliness of Demand for Arbitration.

The proper forum for determining the timeliness of the demand for arbitration of construction company’s claims under two construction contracts with the state highway department was the arbitration board and not the district court. State v. Stremick Constr. Co., 370 N.W.2d 730, 1985 N.D. LEXIS 353 (N.D. 1985).

24-02-31. Arbitrators shall determine all controversies — May give directions.

The arbitrators shall determine all controversies between the parties growing out of the contract, including the question whether it had been performed at the time claimed by the contractor and whether the additional work required by the director as specified has been done, and if not done they shall specify the particulars in which it has not been done, give appropriate directions with reference thereto, and shall make a proper award for any extra work they find the contractor entitled to, making such award so far as it is practicable upon the basis of the contract price, having due regard to what is just and equitable between the parties under the facts and circumstances of the case.

Source:

S.L. 1953, ch. 177, § 84; R.C. 1943, 1957 Supp., § 24-0231.

Notes to Decisions

Timeliness of Demand for Arbitration.

The proper forum for determining the timeliness of the demand for arbitration of construction company’s claims under two construction contracts with the state highway department was the arbitration board and not the district court. State v. Stremick Constr. Co., 370 N.W.2d 730, 1985 N.D. LEXIS 353 (N.D. 1985).

24-02-32. Further arbitration permitted.

If after the making of an award which requires the contractor to do further work, any controversies arise between the parties as to the doing of such work, the controversies may be submitted to the same arbitrators on five days’ notice for further determination.

Source:

S.L. 1953, ch. 177, §§ 85, 86; R.C. 1943, 1957 Supp., § 24-0232; S.L. 1989, ch. 331, § 3.

Notes to Decisions

Timeliness of Demand for Arbitration.

The proper forum for determining the timeliness of the demand for arbitration of construction company’s claims under two construction contracts with the state highway department was the arbitration board and not the district court. State v. Stremick Constr. Co., 370 N.W.2d 730, 1985 N.D. LEXIS 353 (N.D. 1985).

DECISIONS UNDER PRIOR LAW

Extension of Period of Limitation.

Highway commissioner had no authority to extend six months’ period of limitation, nor did construction company have any right to demand arbitration upon expiration of such period. Lamb v. Northern Improvement Co., 71 N.D. 481, 3 N.W.2d 77, 1942 N.D. LEXIS 81 (N.D. 1942).

District court had no authority to enter judgment upon award of arbitrators made after expiration of six months’ period. Lamb v. Northern Improvement Co., 71 N.D. 481, 3 N.W.2d 77, 1942 N.D. LEXIS 81 (N.D. 1942).

Six Month Period of Limitation.

Under statute providing for the arbitration of controversies between the state highway commission and parties contracting therewith, proceedings had to be held within six months after the right to arbitration arose. Lamb v. Northern Improvement Co., 71 N.D. 481, 3 N.W.2d 77, 1942 N.D. LEXIS 81 (N.D. 1942).

24-02-33. Judgment against director — How collected.

When judgment has been entered against the director, the same is not collectible or enforceable by execution, but if the same provides for the payment of money by the director, it must be paid in the same manner, to the same extent, and out of the same funds as though the claims thus established had been recognized and allowed without arbitration. The performance of the duty of the director with reference to payment or other compliance with such judgment may be enforced by mandamus proceedings in the district courts of the state.

Source:

S.L. 1953, ch. 177, § 87; R.C. 1943, 1957 Supp., § 24-0233.

24-02-34. Preparation of standard contract forms.

The director may prepare, adopt, or amend uniform standard forms of contracts, bonds, estimates and other forms and documents deemed essential for the efficient administration of highway matters within the department.

Source:

S.L. 1953, ch. 177, § 88; R.C. 1943, 1957 Supp., § 24-0234.

24-02-35. Contracts — For road and bridge work and materials — Awarding to residents of North Dakota and giving preference to residents of North Dakota. [Repealed]

Repealed by S.L. 1959, ch. 234, § 1.

24-02-35.1. Casual sale of road materials to local governmental units.

The department may sell road materials in small quantities on an occasional basis to local governmental units, when the local governmental units are unable to economically procure those quantities of road materials from the private sector.

Source:

S.L. 1983, ch. 308, § 1.

24-02-35.2. Deposit of sale proceeds — Continuing appropriation.

The proceeds from any sale of road materials made under section 24-02-35.1 must be deposited in the department of transportation fund. An amount not to exceed the total sum of the sales under section 24-02-35.1, but not to exceed one million dollars a year, may be withdrawn upon voucher of the department for purchasing road materials. All moneys deposited in the fund pursuant to this section are hereby appropriated to the department for the purposes of this section.

Source:

S.L. 1983, ch. 308, § 1; 2009, ch. 40, § 15.

24-02-36. State funds not used on feeder roads.

Except as provided in section 24-01-48, no state funds may be expended for feeder roads or other roads not on the state highway system except for the necessary administrative costs and for such work as is reimbursable from federal or county funds or from funds of other organizations or governmental departments for which reimbursement arrangements have been made. After completion of any such cooperative construction, all authority and control over roads off the state highway system must be returned to the local authorities under whom control was vested previously.

Source:

S.L. 1953, ch. 177, § 113; R.C. 1943, 1957 Supp., § 24-0236; S.L. 1959, ch. 235, § 3.

24-02-37. State highway fund — Priorities for expenditure — Use of investment income.

The state highway fund, created by law and not otherwise appropriated and allocated, must be applied and used for the purposes named in this section, as follows:

  1. Except for investment income as provided in subsection 3, the fund must be applied in the following order of priority:
    1. The cost of maintaining the state highway system.
    2. The cost of construction and reconstruction of highways in the amount necessary to match, in whatever proportion may be required, federal aid granted to this state by the United States government for road purposes in North Dakota. Notwithstanding any other provision of law, the department of transportation may repay the United States department of transportation for previous related expenditures from current biennium appropriations to allow the department to reobligate the federal aid to other federal aid projects.
    3. Any portion of the highway fund not allocated as provided in subdivisions a and b may be expended for the construction of state highways without federal aid or may be expended in the construction, improvement, or maintenance of such state highways.
  2. All funds heretofore appropriated or hereafter appropriated or transferred to the department, whether earmarked or designated for special projects or special purposes or not, must be placed or transferred into a single state highway fund in the office of the state treasurer and any claims for money expended by the department upon warrants prepared and issued by the office of management and budget and signed by the state auditor under this title must be paid out of the state highway fund by the state treasurer; provided, however, that the commissioner shall keep and maintain complete and accurate records showing that all expenditures have been made in accordance with legislative appropriations and authorizations.
  3. The state treasurer shall deposit the moneys in the state highway fund in an interest-bearing account at the Bank of North Dakota. The state treasurer shall deposit eighty percent of the income derived from the interest-bearing account in a special interest-bearing account in the state treasury known as the special road fund. The special road fund may be used, within the limits of legislative appropriation, exclusively for the construction and maintenance of access roads to and roads within recreational, tourist, and historical areas as designated by the special road committee. A political subdivision or state agency may request funds from the special road fund by applying to the committee on forms designated by the committee. The committee may require the political subdivision or state agency to contribute to the cost of the project as a condition of any expenditure authorized from the special road fund. Any moneys in the fund not obligated by the special road committee by June thirtieth of each odd-numbered year must be held for an additional two years after which the funds revert to the state highway fund.

Source:

S.L. 1953, ch. 177, § 114; 1957, ch. 191, § 1; R.C. 1943, 1957 Supp., § 24-0237; S.L. 1959, ch. 372, § 35; 1963, ch. 216, § 1; 1989, ch. 332, § 1; 1997, ch. 41, § 7; 1999, ch. 247, § 1; 2009, ch. 234, § 1; 2017, ch. 37, § 9, effective July 1, 2017.

Cross-References.

Highway tax distribution fund, see § 54-27-19.

DECISIONS UNDER PRIOR LAW

Gasoline Tax.

Statute which provided for one cent tax per gallon of gasoline sold by licensed dealers and its allocation to state highway fund did not violate constitutional provision that all public moneys could be paid out only by legislative appropriation. Department of State Highways v. Baker, 69 N.D. 702, 290 N.W. 257, 1940 N.D. LEXIS 200 (N.D. 1940).

Legislature had constitutional power to appropriate moneys in state treasury belonging to state highway commission, derived from motor vehicle fuel tax to pay for construction, repair, and maintenance of public highways within state and not a part of state highway system. McKenzie County v. Lamb, 70 N.D. 782, 298 N.W. 241, 1941 N.D. LEXIS 227 (N.D. 1941).

24-02-37.1. Special road advisory committee — Special road fund. [Repealed]

Repealed by S.L. 1997, ch. 41, § 11.

24-02-37.2. Special road committee.

The special road committee consists of one member of the senate and one member of the house of representatives appointed by the chairman of the legislative management, the director of the game and fish department, the director of the parks and recreation department, and the director of the department of transportation. The director of the department of transportation is chairman of the committee. The committee must meet at the call of the director to review requests for funding from the special road fund. The committee shall decide which project requests will receive funding. The director shall provide staff services to the committee. The members of the committee who are members of the legislative assembly are entitled to compensation from the department of transportation, from moneys appropriated from the special road fund, for attendance at committee meetings at the rate provided for members of the legislative assembly for attendance at interim committee meetings and are entitled to reimbursement for expenses incurred in attending the meetings in the amounts provided by law for other state officers.

Source:

S.L. 1999, ch. 247, § 2; 2009, ch. 482, § 97.

24-02-38. Additional appropriation for administration expenses. [Repealed]

Repealed by S.L. 1989, ch. 72, § 25.

24-02-39. Highway department — Building limitation. [Repealed]

Repealed by S.L. 1975, ch. 239, § 1.

24-02-40. Short-term financing.

The department is hereby authorized, whenever needed, to arrange, with any state-owned or private financing agency, including the Bank of North Dakota, short-term loans in the event that construction funds on hand are insufficient to meet current obligations. Short-term financing as provided herein must be in amounts no larger than can be repaid within four years from moneys known to be due and forthcoming. In no event may such short-term financing be used in anticipation of increased federal-aid highway grants or increased state highway user revenue funds, nor may such loans be obligated for road construction that cannot be financed from a known source of income.

Source:

S.L. 1959, ch. 224, § 1; 1993, ch. 276, § 1.

24-02-40.1. Grant or revenue anticipation financing.

Notwithstanding any other provision of law, the department, whenever needed for the liberty memorial bridge improvement project and the United States highway 2 project improvements, may arrange with any state-owned or private financing agency or underwriter, including the Bank of North Dakota, grant or revenue anticipation financing through the issuance of evidences of indebtedness on such terms and conditions as the department determines if construction funds on hand are insufficient to meet current obligations or to achieve cost-savings or efficiencies in road construction. The department may refund the evidences of indebtedness as often as it is advantageous to do so. Evidences of indebtedness may be sold at public or private sale and must mature not more than fifteen years from their date or dates, and the proceeds of the sale may be invested on such terms and conditions as the department determines. Grant or revenue anticipation financing must be in amounts no larger than can be repaid from moneys known or reasonably anticipated to be due and forthcoming. The grant or revenue anticipation financing may not be used in anticipation of increased federal aid highway grants or increased state highway user revenue funds, and the financing may not be obligated for road construction that cannot be financed from known sources of grants or revenue. The department may pledge any federal aid grants received or to be received for debt service and related issuance costs for evidences of indebtedness issued under this section directly to a trustee in trust for payment to holders of the evidences of indebtedness. The department may also pledge any biennially appropriated revenues for debt service on the evidences of indebtedness directly to a trustee in trust for payment to holders of the evidences of indebtedness. Any evidences of indebtedness issued under this section are not general obligations or debt of the state, the department, or any public officer or employee of the department or this state. The principal of and interest on the evidences of indebtedness are limited obligations payable solely from grants or revenues received or to be received by the department. The department may capitalize from proceeds of the evidences of indebtedness all expenses incidental to issuing the evidences of indebtedness, including any reserves for payment of the evidences of indebtedness.

Source:

S.L. 2005, ch. 40, § 8.

24-02-41. Department revenues to state highway fund.

All revenue in the form of charges, reimbursements, or earnings as hereinafter specified, accruing to the department or any of its agencies or divisions, must be collected and received by the director or the director’s agent, and deposited with the state treasurer monthly, who shall credit all such deposits to the state highway fund:

  1. Overload fees or charges, permit fees, proceeds from sales, and reimbursements from other entities.
  2. Service fees and charges for furnishing documents, material, information, or performing work at the request of, or for the convenience of other entities.
  3. Income resulting from ownership of rights or properties.
  4. Funds collected pursuant to a reciprocal or other agreement, which are in lieu of mile tax.
  5. Other income resulting from authorized activities of the department and the discharge of its statutory responsibilities.

Source:

S.L. 1965, ch. 199, § 1; 1977, ch. 231, § 1.

Notes to Decisions

Constitutionality.

This section and section 39-12-20 are not in violation of the provisions of N.D. Const., Art. IX, § 2. State ex rel. Backes v. Motor Vehicle, 492 N.W.2d 595, 1992 N.D. LEXIS 238 (N.D. 1992).

Overweight Vehicle Charges.

The phrase “fines for violation of state laws” referred to in N.D. Const., Art. IX, § 2, does not encompass civil penalties such as overweight vehicle charges. State ex rel. Backes v. Motor Vehicle, 492 N.W.2d 595, 1992 N.D. LEXIS 238 (N.D. 1992).

24-02-42. Scholarships authorized.

The director is authorized to establish continuing grants of financial aid for study in undergraduate coursework, which meets the needs and mission of the department, at institutions of higher learning in this state. Expenditure from highway operating funds is authorized. No individual may receive financial aid in any year exceeding the tuition of the institution for which the student is enrolled. The director shall establish the annual expenditure in the department’s budget, which includes individual student financial aid limitations to be determined by the director dependent on the available funds. Before any student shall receive the financial aid authorized by this section, the student shall enter into a contract with the department, which must provide that such student shall upon graduation accept employment with the department for a period of time at least equal to the time the student received financial aid benefits, the salary to be in the grade established for the classification assigned. In the event such student is inducted into the armed forces before graduation, such education may then be completed upon that student’s return to civil life, and in the event such induction into the armed services is made after graduation the employment contract does not take effect until after such period of service in the armed forces has been completed. Leave of absence without pay will be granted to one whose induction occurs during the period of the life of such contract and the employment will be resumed for the balance of the contract period after such employee has been discharged from the service.

If such student fails to graduate with a degree, or fails to accept employment with the department as above provided, such student shall repay the department, with interest at the rate of six percent per annum, all sums received by the student in financial aid benefits under the contract herein provided, such repayment to be made within a period equal to the time the student received such benefits. For the purpose of this section, defenses of minority or statute of limitations are removed as to any applicant granted a loan by the director and such contracts are in all respects legal and binding. Salary increases to employees having received financial aid by virtue of this section must be based on the same considerations as other employees employed by the department.

The director, with the cooperation and concurrence of the board of higher education, shall prescribe rules for determining the selection of recipients, qualifications, and courses of study. Such rules may cover any areas as may be necessary to assure a source of qualified trained employees for the department.

Source:

S.L. 1967, ch. 206, § 1; 1971, ch. 268, § 1; 1977, ch. 231, § 2; 1985, ch. 304, § 1; 1991, ch. 289, § 2; 2001, ch. 253, § 1; 2009, ch. 235, § 1.

24-02-43. Intergovernmental cooperation — Infrastructure bank.

The director may contract and cooperate with other states, with political subdivisions of this state, and with the United States government to establish, maintain, and operate a multistate infrastructure bank pursuant to section 350 of the National Highway System Designation Act of 1995 [Pub. L. 104-59; 109 Stat. 568, 618-622] and the Department of Transportation and Related Agencies Appropriations Act of 1997 [Pub. L. 104-205, title I]. The director may transfer and commit to the multistate infrastructure bank state and federal-aid highway funds, up to a maximum of ten percent of eligible federal-aid highway funds, and the required state matching funds. All funds and revenue allocated or generated under this section must be used for purposes of funding eligible projects as determined by agreement of the members of the multistate infrastructure bank and as authorized by state and federal law.

Source:

S.L. 1997, ch. 41, § 6.

24-02-44. Authority to borrow funds for a disaster — Appropriation.

The department of transportation, subject to the approval of the emergency commission, may borrow moneys from the Bank of North Dakota to advance and match federal emergency relief funds. Any moneys borrowed from the Bank of North Dakota pursuant to this section are appropriated.

Source:

S.L. 2001, ch. 254, § 1; 2003, ch. 12, § 4; 2009, ch. 40, § 16.

24-02-45. Cooperative agreements with counties or cities.

The director may enter an agreement with a county or city for the cooperative or joint administration of an activity that will enhance the efficiency and effectiveness of the state highway system. The terms of the agreement supersede sections 24-02-36 and 24-02-37 or any other state law governing the use of state, county, or city highway funds.

Source:

S.L. 2003, ch. 222, § 1.

24-02-45.1. Cooperative agreements with private entities for the construction of certain items on the state highway system.

Notwithstanding any other provision of law, the director may enter a cooperative agreement with a private entity for the construction of an item on the state highway system which will benefit the private entity and the traveling public, as determined by the director. The private entity’s cost-share of the items requested to be added to the state highway system must be paid for in advance of the construction by the private entity before the department can construct the project. Funds received by the department pursuant to this section must be deposited in the state highway fund as prescribed by section 24-02-41 and are appropriated to the department. If the department requires engineering or contracting services for a project under this section, it may provide the services or procure the services in accordance with section 24-02-07.3 and 24-02-17.

Source:

S.L. 2017, ch. 202, § 1, effective July 1, 2017; 2019, ch. 12, § 8, effective May 2, 2019.

24-02-45.2. Lease agreements with public and private entities for radio tower space — Continuing appropriation.

Notwithstanding any other provision of law, the director may lease space on the forty-five department-owned radio tower locations in existence on December 31, 2020, to private entities, if the private entities have been unable to secure space on an existing tower that would provide comparable service coverage. The director shall ensure market rates are charged for a lease entered with a private entity after June 30, 2021. Funds received by the department pursuant to this section must be deposited in the state highway fund as prescribed by section 24-02-41 and are appropriated to the department on a continuing basis.

Source:

S.L. 2021, ch. 217, § 1, effective July 1, 2021.

24-02-45.3. Cooperative agreements — Federal transportation-related aid and safety and mobility.

The director may enter into cooperative agreements with any transferee under section 54-27-19 or any federal agency operating a national park and may expend highway fund moneys pursuant to legislative appropriations to match federal funds for the purposes of providing assistance with the assessment, design, and construction of projects to improve the safety and mobility of people or goods in the state.

Source:

S.L. 2021, ch. 15, § 27, effective July 1, 2021.

24-02-46. Multistate highway transportation agreement.

The director may join the multistate highway transportation agreement to promote uniformity among participating jurisdictions in vehicle size and weight standards. The legislative council shall review the guidelines for eligible voting members of the cooperating committee formed by the agreement and the legislative management shall appoint a member of the house standing transportation committee and a member of the senate standing transportation committee or their designees as the legislative members representing this state to the cooperating committee formed by the agreement.

Source:

S.L. 2007, ch. 12, § 9; 2009, ch. 482, § 16.

Effective Date.

This section became effective July 1, 2007.

24-02-47. Contracts — Design-build method. [Expired]

Expired under S.L. 2009, ch. 236, § 16.

24-02-48. Use of department of transportation airplanes.

Upon request, the department of transportation shall provide air transportation services to other state agencies. Unless waived by the department, each agency using air transportation services from the department shall pay a user charge determined by the department of transportation. The department shall give priority to requests for air transportation services from the attorney general’s office when the request is for law enforcement purposes. The director of the department of transportation shall allow employees of other state agencies to operate the department’s airplanes for official purposes if the employee is properly licensed and has the proper rating and type endorsement to operate the requested airplane.

Source:

S.L. 2013, ch. 221, § 2.

24-02-50. Criminal record history checks.

The director of the department of transportation may require volunteers and final applicants for employment to submit to a statewide and nationwide criminal history record check. The nationwide criminal history record check must be conducted in the manner provided by section 12-60-24.

Source:

S.L. 2021, ch. 218, § 2, effective August 1, 2021.

CHAPTER 24-03 Construction and Maintenance of State Highway System

24-03-01. Preparation and adoption of standard plans and specifications.

The director shall prepare and adopt uniform standard plans and specifications for the establishment, construction, and maintenance of the state highways and bridges within this state. Such plans and specifications may be amended, from time to time, as the director deems advisable.

Source:

S.L. 1953, ch. 177, § 46; R.C. 1943, 1957 Supp., § 24-0301.

Law Reviews.

Highways, Environmental Legislation, and Judicial Review: The Changing Notion of Necessity, 50 N.D. L. Rev. 437.

24-03-02. Authority to construct and maintain state highway system.

The director has the authority, and is responsible for the construction, maintenance, protection, and control of the highways which comprise the state highway system. The director shall patrol and keep said system in good and safe condition for general public use.

Source:

S.L. 1953, ch. 177, § 54; R.C. 1943, 1957 Supp., § 24-0302.

Cross-References.

Closing or restricting use of highway because of weather or deterioration, see § 39-12-03.

Municipalities, duty to maintain highways, see N.D.C.C. chs. 40-39, 40-54, 40-56.

Notice of change in topography of lands under or adjacent to utility lines, see § 49-20-12.1.

Collateral References.

Interest on damages for period before judgment for injury to, or detention, loss, or destruction of property, 36 A.L.R.2d 337, 413.

Park property: construction of highway through park as violation of use to which park property may be devoted, 60 A.L.R.3d 581.

Personal injury liability of civil engineer for negligence in highway or bridge construction or maintenance, 43 A.L.R.4th 911.

Notes to Decisions

Public Duty Immunity.

State was immune to liability for a car accident under N.D.C.C. § 32-12.2-02(3)(f) where N.D.C.C. § 24-03-02 imposed a duty on the State and the Department of Transportation to maintain the highway where the accident occurred and keep it in good and safe condition for general public use, and that duty was unique to the State. Schroeder v. State, 2020 ND 167, 946 N.W.2d 718, 2020 N.D. LEXIS 163 (N.D. 2020).

24-03-03. Construction program. [Repealed]

Repealed by S.L. 1999, ch. 245, § 4.

24-03-04. Force accounts in emergencies.

In case of great emergency requiring immediate action, and if delay would cause a public injury, the work may be done by the department by force account.

Source:

S.L. 1953, ch. 177, § 56; R.C. 1943, 1957 Supp., § 24-0304.

24-03-05. Closing of roads — Penalty for passing over road or removing barricade.

Whenever, during the construction work on any state highway or at any other time, it may be necessary to prevent traffic from passing over any portion of such highway, the department may close such portion of the highway to all traffic by causing to be posted in a conspicuous manner, at the ends of the portion of the highway so closed, suitable signs warning the public that such road is closed under authority of law, and by the erection of suitable barricades, fences, or other obstructions. The driver, or owner, or both, of any vehicle, self-propelling or otherwise, passing through, over, or around any such barricade, fence, or other obstruction so placed, or any person opening, removing, or defacing any such barricade, fence, or other obstruction, or any such warning sign, without written permission from the engineer in charge of the work, or in charge of such highway, or any person willfully causing any damage to the work under construction, is guilty of a class A misdemeanor.

Source:

S.L. 1953, ch. 177, § 57; R.C. 1943, 1957 Supp., § 24-0305; S.L. 1975, ch. 106, § 260.

Cross-References.

Closing or restricting use of highway because of weather or deterioration, see § 39-12-03.

Detours, acquiring temporary easements for, see § 24-01-29.

Injury, removal, or destruction of official signs, see §§ 24-12-04, 24-12-05.

Railroad changing highway must provide detour during work, see § 49-11-01.

Restricted access, see § 39-10-20.

Restrictions on use of controlled-access roadway, see § 39-10-21.

Temporary easements for highway construction, maximum duration, see § 47-01-22.

24-03-06. Method of construction of highway ditches.

All highways constructed or reconstructed by the department, board of county commissioners, board of township supervisors, their contractors, subcontractors, or agents, or by any individual firm, corporation, or limited liability company must be so designed as to permit the waters running into the ditches to drain into coulees, rivers, and lakes according to the surface and terrain where the highway or highways are constructed in accordance with the stream crossing standards prepared by the department and the department of water resources so as to avoid the waters flowing into and accumulating in the ditches to overflow adjacent and adjoining lands. In the construction of highways the natural flow and drainage of surface waters to the extent required to meet the stream crossing standards prepared by the department and the department of water resources may not be obstructed, but the water must be permitted to follow the natural course according to the surface and terrain of the particular terrain. The department, county, township, their contractors, subcontractors, or agents, or any individual firm, corporation, or limited liability company is not liable for any damage caused to any structure or property by water detained by the highway at the crossing if the highway crossing has been constructed in accordance with the stream crossing standards prepared by the department and the department of water resources.

Source:

S.L. 1953, ch. 177, § 58; R.C. 1943, 1957 Supp., § 24-0306; S.L. 1993, ch. 54, § 106; 1999, ch. 248, § 1; 2021, ch. 488, § 11, effective August 1, 2021.

Notes to Decisions

Authority to Install Culverts.

A board of township supervisors, not a water resource district, has the authority to install culverts beneath township roads when necessary to preserve the natural drainage of surface waters. Ness v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793, 1998 N.D. LEXIS 197 (N.D. 1998).

Culverts.

Township had a duty to construct a culvert in township road so as to prevent obstruction of the natural drainage of surface waters. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, 583 N.W.2d 817, 1998 N.D. LEXIS 183 (N.D. 1998), limited, Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

Property owner’s petition for writ of mandamus, compelling a township to install a bigger culvert to aid in drainage, was properly denied because, although better drainage could have been provided, the law did not require perfect drainage, and the court found that the rain event, which the owner claimed demonstrated the drainage problems and the failure to meet the stream crossing standards on his property, was a cataclysmic event, and in excess of a 100-year flood, not a 10-year event as contemplated by the stream crossing standards for a township road. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112, 2006 N.D. LEXIS 207 (N.D. 2006).

Equal Drainage.

In constructing relocated grade, county was bound to furnish drainage to adjoining farm, equal to that existing prior to relocation, but it was not under duty to furnish perfect drainage. Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Flood Control Plan.

The County did not abuse its discretion in adopting the flood control plan, and the trial court did not err in ruling the plan complied with the writ of mandamus even though the landowners may have had a “better” plan where the County balanced many considerations, including the safety of persons who use the roads, the amount of road usage, the concerns of upstream and downstream landowners, and the costs of the various plans and available funding. Fandrich v. Wells County Bd. of County Comm'rs, 2000 ND 181, 618 N.W.2d 166, 2000 N.D. LEXIS 205 (N.D. 2000).

Injunction.

Where township was under mandatory injunction to provide for an outlet for surface water restricted by highway construction but failed so to provide in accordance with sound engineering practices, landowners were entitled to an order enforcing the injunction specifically. Viestenz v. Arthur Township, 129 N.W.2d 33, 1964 N.D. LEXIS 106 (N.D. 1964).

Suit Against County.

Where a bridge opening had been designed to allow water flow of three thousand cubic feet per second, which was more than adequate for any predictable rainfall within a hundred-year span, but an unprecedented rainfall created a flow of nine thousand cubic feet per second, the resulting damage to plaintiff’s land was not proximately caused by bridge and roadway upstream, even if negligently constructed, but by an act of God for which county and state were not liable. Frank v. County of Mercer, 186 N.W.2d 439, 1971 N.D. LEXIS 174 (N.D. 1971).

Surface Water.

When a township road is constructed or reconstructed, this section imposes three obligations on the township board of supervisors: (1) the natural flow and drainage of surface waters must be permitted to follow the natural drainage pattern according to the natural terrain of the land; (2) drainage must be provided for any water that might accumulate in ditches along roadways in order to prevent overflowing onto adjoining lands; and (3) the best method of finding the natural outlet for the surface waters must be determined by the township in accordance with good engineering practices. Ness v. Ward County Water Resource Dist., 1998 ND 191, 585 N.W.2d 793, 1998 N.D. LEXIS 197 (N.D. 1998).

24-03-07. Drains across state highways.

The director, when notified by the board of drain commissioners of any drainage district that it is necessary to run a drain across any state or federal-aid highway, shall make the necessary opening through such highway and shall build and keep in repair suitable culverts or bridges, as provided in title 61.

Source:

S.L. 1953, ch. 177, § 59; R.C. 1943, 1957 Supp., § 24-0307.

24-03-08. Determinations of surface water flow and appropriate highway construction.

Whenever and wherever a highway under the supervision, control, and jurisdiction of the department or under the supervision, control, and jurisdiction of the board of county commissioners of any county or the board of township supervisors has been or will be constructed over a watercourse or draw into which flow surface waters from farmlands, the department of water resources, upon petition of the majority of landowners of the area affected or at the request of the board of county commissioners, township supervisors, or a water resource board, shall determine as nearly as practicable the design discharge that the crossing is required to carry to meet the stream crossing standards prepared by the department and the department of water resources. When the determination has been made by the department of water resources, the department of transportation, the board of county commissioners, or the board of township supervisors, as the case may be, upon notification of the determination, shall install a culvert or bridge of sufficient capacity to permit the water to flow freely and unimpeded through the culvert or under the bridge. The department, county, and township are not liable for any damage to any structure or property caused by water detained by the highway at the crossing if the highway crossing has been constructed in accordance with the stream crossing standards prepared by the department and the department of water resources.

Source:

S.L. 1953, ch. 177, § 60; R.C. 1943, 1957 Supp., § 24-0308; S.L. 1999, ch. 248, § 2; 2021, ch. 488, § 12, effective August 1, 2021.

Notes to Decisions

Flood Control Plan.

The County did not abuse its discretion in adopting the flood control plan, and the trial court did not err in ruling the plan complied with the writ of mandamus even though the landowners may have had a “better” plan where the County balanced many considerations, including the safety of persons who use the roads, the amount of road usage, the concerns of upstream and downstream landowners, and the costs of the various plans and available funding. Fandrich v. Wells County Bd. of County Comm'rs, 2000 ND 181, 618 N.W.2d 166, 2000 N.D. LEXIS 205 (N.D. 2000).

Installation of Culvert.

Property owner’s petition for writ of mandamus, compelling a township to install a bigger culvert to aid in drainage, was properly denied because, although better drainage could have been provided, the law did not require perfect drainage, and the court found that the rain event, which the owner claimed demonstrated the drainage problems and the failure to meet the stream crossing standards on his property, was a cataclysmic event, and in excess of a 100-year flood, not a 10-year event as contemplated by the stream crossing standards for a township road. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112, 2006 N.D. LEXIS 207 (N.D. 2006).

24-03-09. Warning signs of road construction.

Whenever the department or any county or township enters into a contract for the construction and improvement of any road or culvert, or bridge thereon, it, as a condition of such contract, shall provide therein that the contractor shall place warning signs and devices which are in conformity with chapter 39-13. When a highway is so marked, the traveler shall proceed only with great care and diligence, but nothing contained in this section makes any township, county, or the state liable for the failure of any contractor to erect such warning signs.

Source:

S.L. 1953, ch. 177, § 61; R.C. 1943, 1957 Supp., § 24-0309; S.L. 1961, ch. 204, § 1; 1979, ch. 327, § 1.

Cross-References.

Injury, removal, or destruction of official signs, see §§ 24-12-04, 24-12-05.

Collateral References.

Highway contractor’s liability to highway user for highway surface defects, 62 A.L.R.4th 1067.

24-03-10. Public officers — Warning sign placement duty.

Whenever a township, county, or the department shall construct, improve, or repair any road, culvert, or bridge, or shall gravel any road, and such work renders travel on such road, culvert, or bridge unsafe or dangerous, the board of supervisors of any such township, the board of county commissioners of any such county, or the director or any foreman or other person in charge of such work, shall place such warning signs as provided in section 24-03-09.

Source:

S.L. 1953, ch. 177, § 62; R.C. 1943, 1957 Supp., § 24-0310.

Notes to Decisions

Failure to Place Signs.

In absence of a specific agreement to the contrary, responsibility for placement of warning signs lies with the township, and a party injured as a result of failure to place such signs has no action against a party who contracted to deliver gravel for township use unless there is an obvious hazard created by the method in which it is delivered. Anderson v. Stokkeland, 125 N.W.2d 665, 1964 N.D. LEXIS 78 (N.D. 1964).

24-03-11. Penalty for failure to erect warning signs.

Any person in charge of any work or repairs on any public road, culvert, or bridge who fails or neglects to erect and maintain suitable warning signs as provided in sections 24-03-09 and 24-03-10 is guilty of a class B misdemeanor.

Source:

S.L. 1953, ch. 177, § 63; R.C. 1943, 1957 Supp., § 24-0311; S.L. 1975, ch. 106, § 261.

24-03-12. Authority to acquire equipment.

The office of management and budget, acting as a central purchasing agency of the state, has authority to purchase, lease, or acquire all road material, road machinery, tools, equipment, and supplies necessary for use in constructing, maintaining, controlling, and administering the state highway system. However, the office of management and budget may delegate such authority to the director, and in such instances the director has the authority to purchase, lease, or acquire, as the director deems necessary, all road material, road machinery, tools, equipment, and supplies necessary for the construction, maintenance, and control of the state highway system.

Source:

S.L. 1953, ch. 177, § 64; R.C. 1943, 1957 Supp., § 24-0312; S.L. 1959, ch. 372, § 36.

Cross-References.

Department of accounts and purchases, see N.D.C.C. ch. 54-44.

24-03-13. Equipment and materials may be purchased without advertising for bids.

The office of management and budget or the director, when the authority to purchase is delegated to the director, may purchase equipment, materials, supplies, or other personal property useful to the department, from the United States government, or any of its officers, agents, agencies, or corporations, without compliance with the provisions of section 24-02-17.

Source:

S.L. 1953, ch. 177, § 65; R.C. 1943, 1957 Supp., § 24-0313; S.L. 1959, ch. 372, § 38.

24-03-14. Authority to acquire buildings for equipment.

The director has authority to construct, rent, or purchase for the state the necessary land and buildings for the storage and housing of road materials, road machinery, equipment, and tools.

Source:

S.L. 1953, ch. 177, § 66; R.C. 1943, 1957 Supp., § 24-0314; S.L. 1959, ch. 372, § 37; 1999, ch. 474, § 2.

24-03-15. Sale of obsolescent highway equipment.

The director is authorized to sell, exchange, or otherwise dispose of all obsolescent road machinery, equipment, and material no longer needed, required, or useful for highway purposes. All such obsolescent road machinery, equipment, and material offered for sale to political subdivisions must be sold by negotiation to the purchasing political subdivision at the department’s established market value. All such obsolescent road machinery, equipment, and material which is offered at general sale and valued at more than three thousand dollars must be sold by public auction or by sealed bids at the highest and best bid, reserving the right to reject all bids, with no money deposit required of any bidder prior to sale. Any funds or money derived from the sale of such property must be credited to the funds from which such purchase was made originally.

Source:

S.L. 1953, ch. 177, § 67; R.C. 1943, 1957 Supp., § 24-0315; S.L. 1975, ch. 179, § 2.

24-03-16. Inspection and testing of materials.

The director has the authority to inspect and test all materials, supplies, equipment, and machinery used by the department and to develop methods and procedures for this purpose.

Source:

S.L. 1953, ch. 177, § 48; R.C. 1943, 1957 Supp., § 24-0316.

Collateral References.

Highway meridian barriers, governmental tort liability as to, 58 A.L.R.4th 559.

24-03-17. Testing laboratory.

The director has the authority to maintain and develop a testing laboratory to carry out the requirements of section 24-03-16. The department may, upon request of any division or agency of government, make available the services and facilities of said testing laboratory, and make a reasonable charge therefor.

Source:

S.L. 1953, ch. 177, § 49; R.C. 1943, 1957 Supp., § 24-0317.

Collateral References.

Highway meridian barriers, governmental tort liability as to, 58 A.L.R.4th 559.

24-03-18. Preparation of manuals of methods and procedures.

The director shall, to the extent practicable, prepare, print, and distribute manuals of standard and uniform methods for any of the activities, divisions, or work of the department, or for general road and bridge construction, design, land acquisition, traffic control, maintenance, marking, and kindred purposes in this state.

Source:

S.L. 1953, ch. 177, § 50; R.C. 1943, 1957 Supp., § 24-0318.

24-03-19. Research on highway development.

The director has the authority to gather, investigate, and compile information concerning the use, construction, and maintenance of highways, the practices and methods of efficient highway organization, financing, and such other information, data, and statistics of this state or other states as deemed advisable, and the extent of the natural resources of roadbuilding materials within this state. The director has the further authority to enter into agreements with other states or research organizations to carry on research and test projects involving highway development and to expend highway funds for this purpose. The director shall disseminate all such information, together with any recommendations the director deems advisable.

Source:

S.L. 1953, ch. 177, § 51; R.C. 1943, 1957 Supp., § 24-0319.

24-03-20. Traffic surveys.

The director has the authority to collect, analyze, and interpret all physical and economic data needed to measure existing and estimated future street and highway traffic characteristics, such as, origin and destination, volumes, speeds, accidents, congestion, parking, pedestrian use of streets, and the economic loss caused by inferior traffic facilities, including the preparation of traffic plans and recommendations.

Source:

S.L. 1953, ch. 177, § 52; R.C. 1943, 1957 Supp., § 24-0320.

24-03-21. Preparation of road maps — Publication of tourist information.

The commissioner shall prepare for general distribution road maps of the state highway system and other roads as the commissioner determines necessary. Any tourist-oriented material printed on road maps must be prepared by the department of commerce division of tourism at no cost to the department of transportation.

Source:

S.L. 1953, ch. 177, § 53; R.C. 1943, 1957 Supp., § 24-0321; S.L. 1961, ch. 205, § 1; 1965, ch. 15, § 2; 1969, ch. 262, § 1; 1981, ch. 528, § 8; 1991, ch. 95, § 31; 1991, ch. 640, § 4; 1993, ch. 80, § 4; 2001, ch. 488, § 15.

24-03-22. Highway maintenance radio net.

The department is hereby authorized to purchase, install, and maintain a department of transportation radio communications network out of funds now and hereinafter designated as state highway maintenance funds. The department is further authorized to enter into an agreement with the federal civil defense administration for the purchase of radio equipment for said radio communications network on a fifty-fifty fund matching basis.

Source:

S.L. 1959, ch. 225, § 1.

24-03-23. Encroachments on state highways.

No part of the right of way for state highways may be encroached upon by erection thereon of any structure, or placing thereon any personal property, other than a temporary parking of a motor vehicle, without a written permit from the director. Any encroachment may be caused to be removed, obliterated, or corrected by order of the director and the total cost thereof must be paid by the person responsible for the encroachment. Property other than motor vehicles left upon highway right of way for a period exceeding seventy-two hours, the ownership of which cannot be determined after reasonable effort has been made to do so, must be deemed abandoned and may be removed from the right of way and stored at the nearest site available for thirty days and if it is not claimed by the owner during such period, and the cost of removal and storage paid, it may be disposed of in the manner prescribed by the director. Abandoned motor vehicles are subject to the provisions of chapter 23.1-15. If such property is disposed of it must, except as otherwise provided by this section, be sold or disposed of in the manner provided in chapter 23.1-15. The receipts therefrom must be deposited in the state treasury as provided in section 1 of article IX of the Constitution of North Dakota and credited to the common schools trust fund unless a commercial towing service lawfully disposes of the abandoned vehicle.

Source:

S.L. 1965, ch. 200, § 1; 1973, ch. 319, § 13; 2017, ch. 203, § 1, effective April 5, 2017; 2017, ch. 199, § 31, effective April 29, 2019.

CHAPTER 24-04 Federal Aid

24-04-01. Assent to federal aid given.

The legislative assent required by section 1 of the Act of Congress approved July 11, 1916, Public Law No. 156, entitled “An Act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes,” is hereby given. The director is authorized and empowered to make all contracts and to do all things necessary to cooperate with the United States government in the construction of roads under the provisions of the said Act or other Act of Congress that hereafter may be enacted, including the Federal Aid Highway Act of 1950 regarding secondary roads.

Source:

S.L. 1953, ch. 177, § 22; R.C. 1943, 1957 Supp., § 24-0401.

Note.

Provisions of the various Federal Aid Highway Acts appear in 23 USCS. Provisions on highway relocation assistance, succeeding those formerly compiled in that title, now appear at 42 USCS § 4601 et seq.

Collateral References.

Constitutionality of state legislation to reimburse public utilities for cost of relocating their facilities because of highway construction, conditioned upon federal reimbursement of the state under the terms of Federal Aid Highway Act (23 USCS § 123). 75 A.L.R.2d 419.

Park and recreation lands: construction and application of § 4(f) of Department of Transportation Act of 1966 (49 USCS § 1653 (f), as amended, and § 18 (a) of Federal Aid Highway Act of 1968 (23 USCS § 138) requiring secretary of transportation to determine that all possible planning for highways has been done to minimize harm to public park and recreation lands. 19 A.L.R. Fed. 904.

24-04-02. Federal-aid highways included in highway systems of state.

In the selection and designation of highway systems, as provided for under this title, due consideration must be given to those highways on which federal-aid funds have been expended, and when practicable and justifiable, such federal-aid highways must be included in said systems.

Source:

S.L. 1953, ch. 177, § 23; R.C. 1943, 1957 Supp., § 24-0402.

24-04-03. Feeder roads and rural transportation assistance programs — Director may cooperate with federal government.

The director may receive and expend any funds within the limits of legislative appropriations made available by the Congress of the United States to be applied on the county road system, and other roads or streets not on the state highway system and to assist in the development and improvement of surface transportation systems in rural and small urban areas, including projects and programs for the construction of public roads not on any federal-aid system, correction of safety hazards and replacement of bridges, development of parking facilities to serve buses and other means of public transportation of passengers, and for the purchase of buses used in public transportation service. The director may carry out the intent and purpose of rural transportation assistance programs authorized by Congress to the same extent that the director now may cooperate legally with federal-aid highway construction and maintenance programs, except as hereinafter provided. The director may not engage in or provide state funds for the operation of any public bus transportation system except by contract with a local governmental entity or a private operator and may expend no revenue derived from gas tax or motor vehicle licensing in the establishment or operation of such public bus transportation system.

Source:

S.L. 1953, ch. 177, § 24; R.C. 1943, 1957 Supp., § 24-0403; S.L. 1975, ch. 240, § 1.

24-04-04. Municipalities may aid federal highway construction.

A municipality, through its governing body, wherever a federal-aid highway is routed through such municipality, may participate in the financing, planning, construction, and acquisition of right of way of said highway.

Source:

S.L. 1953, ch. 177, § 26; R.C. 1943, 1957 Supp., § 24-0404; S.L. 1959, ch. 228, § 3.

Cross-References.

Municipality may enter into agreement with highway department or county for certain improvements, see § 40-22-06.

24-04-05. Municipalities may pay share of highway cost by taxes or special assessments.

Any municipality may raise funds for the purpose of meeting its share of the cost of construction, financing, planning, or acquiring a right of way of a federal-aid highway through general taxes to be levied at large throughout such municipality, or where such highway in the opinion of the governing body of said municipality particularly and materially benefits property abutting thereon, may provide said sum through special assessment.

Source:

S.L. 1953, ch. 177, § 27; R.C. 1943, 1957 Supp., § 24-0405.

24-04-06. General laws govern taxes and special assessments to pay highway costs.

All provisions of law relating to the levying of taxes for internal improvements of municipalities and the levying of special assessments for such improvements are applicable to sections 24-04-04 and 24-04-05 insofar as they are not inconsistent with the general purpose thereof, namely, to permit such municipalities to participate in federal-aid highway construction, financing, planning, and acquisition of right of way, through and within their limits.

Source:

S.L. 1953, ch. 177, § 28; R.C. 1943, 1957 Supp., § 24-0406.

CHAPTER 24-05 County Roads

24-05-01. County road system and construction plan — County road and bridge tax levy — Allocation and use of funds.

The board of county commissioners of any county shall periodically prepare a proposed county construction program of roads on the county road system, setting forth a general description of the roads to be constructed, the location of bridges constituting a part of the program, the approximate total mileage, and the priority of construction.

  1. The board of county commissioners may levy a tax not exceeding a tax rate of ten mills per dollar of the taxable valuation of property in the county for the improvement of county roads and bridges.
  2. When authorized by a majority of the qualified electors voting upon the question at a regular or special election in the county, the county commissioners may levy and collect an additional tax for county road and bridge purposes not exceeding a tax rate of ten mills per dollar of the taxable valuation of property in the county. The levy pursuant to such an election may be discontinued by the board of county commissioners or, upon petition of five percent of the qualified electors of such county, the question of discontinuance of the levy must be submitted to the qualified electors of the county at any regular or special election and, upon a favorable vote to discontinue the levy of a majority of the qualified electors voting, such levy must be discontinued.
  3. When a county requires levy authority for county road and bridge purposes in excess of the limitations under subsections 1 and 2 and the county is authorized by a majority of the qualified electors voting upon the question at a regular or special election in the county, the board of county commissioners may levy and collect an additional tax not exceeding a tax rate of ten mills per dollar of the taxable valuation of property in the county. The levy pursuant to an election under this subsection may be discontinued by the board of county commissioners or, upon petition of five percent of the qualified electors of such county, the question of discontinuance of the levy must be submitted to the qualified electors of the county at any regular or special election and, upon a favorable vote to discontinue the levy of a majority of the qualified electors voting, such levy must be discontinued.
  4. Additional levy authority authorized by electors of a county under this section or section 57-15-06.3 before January 1, 2015, remains in effect under the provisions of law at the time the levy was authorized for the time period authorized by the electors but not exceeding ten taxable years, unless discontinued earlier by the board of county commissioners or the electors of the county. After January 1, 2015, approval or reauthorization by electors of increased levy authority under this section may not be effective for more than ten taxable years.
  5. The county treasurer shall retain and deposit in a fund known as the county road and bridge fund the county share of the tax under this section and any proceeds of this tax totaling less than twenty dollars in a taxable year which is collected on account of property situated within any city. Proceeds of the county share of the tax under this section must be expended in the improvement of highways as provided in this chapter under the direction of the board of county commissioners. The provisions of this section in regard to allocation apply to the proceeds of any tax originally levied for other purposes if appropriated or transferred to the county road and bridge fund or for expenditure for road and bridge purposes.

Of the proceeds of the tax collected under levy authority under this subsection on account of property situated within any city, by the county treasurer of the county in which the city is located, twenty percent must be turned over by the treasurer to the auditor of the city, in the manner provided in section 11-13-06 to be expended under the direction of the governing body of the city in the improvement of its streets and highways.

Any unobligated balance in the farm to market and federal aid roads fund and county road fund on or after August 1, 2015, must be transferred to the county road and bridge fund, and the farm to market and federal aid roads fund and county road fund must be closed out.

Source:

S.L. 1893, ch. 69, § 1; R.C. 1895, § 1081; R.C. 1899, § 1081; S.L. 1903, ch. 162, § 1; 1905, ch. 160, § 1; R.C. 1905, § 1372; S.L. 1913, ch. 122, § 1; C.L. 1913, § 1945; R.C. 1943, § 24-0501; S.L. 1953, ch. 179, § 1; 1957 Supp., § 24-0501; S.L. 1973, ch. 223, § 1; 1977, ch. 232, § 1; 1979, ch. 328, § 1; 1983, ch. 593, § 19; 1983, ch. 606, § 36; 1985, ch. 235, § 57; 1995, ch. 262, § 1; 2015, ch. 439, § 29, effective January 1, 2015; 2021, ch. 219, § 1, effective August 1, 2021.

Cross-References.

Allocations by state to counties and political subdivisions, see § 57-58-01.

County highway engineer, see N.D.C.C. ch. 11-31.

County may issue bonds for construction and maintenance of highways, see § 21-03-06.

Mutual or cooperative telephone company exempt from, see § 57-34-11.

Road tax paid in cash, see § 24-06-17.

DECISIONS UNDER PRIOR LAW

Cooperative Projects.

Road tax did not become a special levy for local improvement by becoming subject to disbursement on state or federal aid projects in cooperation with state highway commission. Great N. Ry. v. Ward County, 54 N.D. 75, 208 N.W. 768, 1926 N.D. LEXIS 115 (N.D. 1926).

Restrictions on Tax Levies.

County road tax fell within limitation on general tax levies and was not included in special exception for levies for local improvements. Great N. Ry. v. Ward County, 54 N.D. 75, 208 N.W. 768, 1926 N.D. LEXIS 115 (N.D. 1926).

Transfer of Funds to City.

The language of this section is free from ambiguity in providing that twenty percent of the proceeds of any taxes collected arising from real or personal property situated within a city in a county over two thousand population for the improvement of such county’s highway shall be turned over to the treasurer of the municipality by the treasurer of the county, whether such taxes were originally levied for the improvement of highways, or originally levied for other purposes and subsequently transferred to the county road fund. City of Grand Forks v. Grand Forks County, 139 N.W.2d 242, 1965 N.D. LEXIS 89 (N.D. 1965).

24-05-02. Fund — How expended.

The county road and bridge fund created by section 24-05-01 may be expended only for road machinery and for grading, ditching, and surfacing, and implementation of the proposed county construction program of roads on the county road system.

Source:

S.L. 1893, ch. 69, § 2; R.C. 1895, § 1082; R.C. 1899, § 1082; S.L. 1903, ch. 162, § 2; R.C. 1905, § 1373; C.L. 1913, § 1946; S.L. 1915, ch. 108, § 1; 1917, ch. 131, § 13; 1925 Supp., § 1946; R.C. 1943, § 24-0502; 2015, ch. 439, § 30, effective January 1, 2015.

Notes to Decisions

Approval of Board.

Individual members of the board of county commissioners, acting alone, cannot bind the county to road construction contracts unless specifically authorized by law. Rolette State Bank v. Rolette County, 56 N.D. 571, 218 N.W. 637, 1928 N.D. LEXIS 176 (N.D. 1928).

Cooperative Projects.

A county taxpayer cannot enjoin the expenditure of money from the county road and bridge fund to secure an additional right of way in connection with the erection of an overpass on a city street on the ground that it violates the statutory provision stipulating the uses for such fund where the overpass was to be erected on a federal highway under the supervision of the highway commissioner. Cummings v. Minot, 67 N.D. 214, 271 N.W. 421, 1937 N.D. LEXIS 75 (N.D. 1937).

Individual Action.

In acting as agent for board of commissioners, individual commissioner was performing duties of county road supervisor when he viewed proposed highways. State v. Borstad, 27 N.D. 533, 147 N.W. 380, 1914 N.D. LEXIS 77 (N.D. 1914).

Special Fund.

Special fund within the road and bridge fund expressly intended to finance the construction of “new county equipment shop building” established from proceeds of sale of land was not restricted to expenditures for only road machinery, grading, ditching and surfacing highways or parts of highways. Brusegaard v. Schroeder, 201 N.W.2d 899, 1972 N.D. LEXIS 102 (N.D. 1972).

24-05-03. Payments made for completed work only.

The board of county commissioners, in case of each improvement ordered by it, shall designate the place of beginning and the direction in which the work must proceed, and shall require the same to be completed mile [1.61 kilometers] by mile [1.61 kilometers] or in parts of miles [kilometers] continuously, as ordered, and no payment may be made except for work so completed. It also may require the supervision of the work by the county surveyor, so far as deemed necessary, and shall require the county surveyor to compute and estimate the amount of completed work and to certify the same to the county auditor at the end of each month, and all the work contracted for must be completed prior to the first day of November next following. The provisions of this section and the orders and directions of the board made in pursuance thereof must constitute a part of the provisions and conditions of every such contract, whether expressed therein or not.

Source:

S.L. 1893, ch. 69, § 5; R.C. 1895, § 1085; R.C. 1899, § 1085; R.C. 1905, § 1375; C.L. 1913, § 1948; R.C. 1943, § 24-0503.

24-05-04. Contracts to be advertised — Road construction — Requirements for rental contracts.

  1. If a contract for a highway improvement exceeds one hundred thousand dollars, the board of county commissioners shall seek bids by publishing an advertisement at least once each week for two consecutive weeks in the official newspaper of the county and in other newspapers as the board deems advisable. The first publication must be made at least fifteen days before the day set for the opening of the bids. For any contract for a highway improvement that exceeds fifty thousand dollars but does not exceed one hundred thousand dollars, the county, when possible, shall seek quotes from at least two contractors.
  2. Except as provided in section 54-44.4-13, a purchase of county road machinery and any rental contract or agreement for the use of road machinery and other articles, except necessary repairs for road machinery, which exceeds the sum of one hundred thousand dollars must be advertised by publishing an advertisement for bids at least once each week for two consecutive weeks in the official newspaper of the county and in any other newspapers as the board deems advisable. The first publication must be made at least fifteen days before the day set for the opening of the bids. The board of county commissioners may not enter a rental contract or agreement for the use of road machinery and other articles for a longer period than twelve months from the date of the rental contract or agree to pay rental for the use of road machinery and other articles which would result in the lessor receiving rental at a rate in excess of twenty percent per year of the cash sale price of the road machinery or other articles. The cash sale price of the road machinery and other articles must be clearly set forth in any rental contract for road machinery and other articles and failure to include this data in any rental contract for the use of road machinery and other articles renders the rental contract void. A payment made under a void rental contract is recoverable from the county commissioners making the contract, jointly and severally.
  3. Notwithstanding the provisions of this section relating to the duration of rental contracts, the board of county commissioners may enter lease-purchase agreements for the road machinery and articles covered by this section if those agreements provide for the complete performance and full payment of the purchase price of the machinery or articles within seven years from the date of the execution of the lease-purchase agreement according to section 44-08-01.1.
  4. Notwithstanding the provisions of this section relating to bidding of road machinery, the board of county commissioners or its designee may purchase used road machinery at public auction or as surplus property from the office of management and budget.
  5. Bids received under this section must be opened and awarded under the procedure provided in section 48-01.2-07.

Source:

S.L. 1915, ch. 108, § 2; 1925 Supp., § 1946a1; S.L. 1941, ch. 172, § 1; R.C. 1943, § 24-0504; S.L. 1951, ch. 177, § 1; 1957, ch. 109, § 2; 1957 Supp., § 24-0504; S.L. 1971, ch. 269, § 1; 1977, ch. 92, § 2; 1979, ch. 329, § 1; 1981, ch. 292, § 1; 1985, ch. 305, § 1; 1997, ch. 238, § 1; 2011, ch. 200, § 2; 2013, ch. 222, § 1; 2017, ch. 204, § 1, effective August 1, 2017; 2019, ch. 224, § 1, effective August 1, 2019.

Cross-References.

Advertising for bids, see §§ 11-11-26, 11-11-27.

Special election for extraordinary outlays, requirement inapplicable to lease-purchase agreements for road machinery, see § 11-11-18.

Notes to Decisions

Individual Action.

Orders given for culverts and signed individually by members of the board were not binding contract because not signed by board as a whole. Northwestern Sheet & Iron Works v. Sioux County, 76 N.D. 451, 36 N.W.2d 605, 1949 N.D. LEXIS 66 (N.D. 1949).

Interference with Bidding.

The interference of fraud or collusion in preventing competitive bidding on culvert contract was rebutted by evidence which showed that signing of orders for culverts by individual commissioners was necessary because the culverts were under control of war production board. Northwestern Sheet & Iron Works v. Sioux County, 76 N.D. 451, 36 N.W.2d 605, 1949 N.D. LEXIS 66 (N.D. 1949).

Collateral References.

Differences in character or quality of materials, articles, or work as affecting acceptance of it for public contract, 27 A.L.R.2d 917.

Determination of amount involved in contract within statutory provision requiring public contracts involving sums exceeding specified amount to be let to lowest bidder, 53 A.L.R.2d 498.

Personal services: contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

Validity and construction of “no damage” clause with respect to delay in building or construction contract, 74 A.L.R.3d 187.

Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake or that of his employee, 2 A.L.R.4th 991.

Public contracts: authority of state or its subdivisions to reject all bids, 52 A.L.R.4th 186.

24-05-04.1. County not to lease its equipment for less than cost of operation.

No county, city, or township may lease, rent, or enter into a contract or agreement for the use of any road construction or maintenance equipment belonging to any county, city, or township on other than county, city, or township roads or projects at a rate which is less than the current equipment rental rates adopted by the North Dakota department of transportation as shown in its Standard Specifications for Road and Bridge Construction manual.

Source:

S.L. 1969, ch. 263, § 1; 1977, ch. 233, § 1.

Cross-References.

Sale, purchase and lease of township road machinery, see § 24-06-07.

24-05-04.2. Contracts to be advertised — Road construction. [Repealed]

Source:

S.L. 2011, ch. 200, § 1; repealed by 2017, ch. 204, § 3, effective August 1, 2017.

24-05-05. County auditor to issue warrants.

Upon the filing of the surveyor’s certificate as provided in section 24-05-03, the county auditor shall issue warrants accordingly on the county treasurer in favor of the contractor, payable out of the county road and bridge fund appropriated thereto, and the same must be paid by the treasurer.

Source:

S.L. 1893, ch. 69, § 6; R.C. 1895, § 1086; R.C. 1899, § 1086; R.C. 1905, § 1376; C.L. 1913, § 1949; R.C. 1943, § 24-0505; 2015, ch. 439, § 31, effective January 1, 2015.

24-05-06. Compensation of county surveyor. [Repealed]

Repealed by S.L. 1953, ch. 115, § 2.

24-05-07. County may deviate from section lines — Condemn or purchase right of way.

Whenever the expense of constructing a highway or any part thereof is to be borne by the county, the board of county commissioners thereof has the power to deviate from section and township lines and to condemn and purchase right of way for such highway, if in its opinion the cost of constructing and maintaining such highway must be decreased materially. The cost of obtaining such right of way must be borne by the county.

Source:

S.L. 1911, ch. 147, § 1; C.L. 1913, § 1922; R.C. 1943, § 24-0507.

Cross-References.

Eminent domain, see N.D. Const., Article I, § 16; N.D.C.C. ch. 32-15.

Interest taken for highway purposes limited to easement, see § 32-15-03.2.

Validation of pre-1929 proceedings for acquisition of right of way, see § 1-06-02.

Notes to Decisions

Petition to Alter.

Board of county commissioners had jurisdiction to receive and act upon a petition to alter or lay out a highway. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

24-05-08. Highways on state line.

Whenever the board of county commissioners of any county bordered by a state line deems it for the best interests of such county to open and improve a highway on said state line, it may negotiate with the proper officials of the adjoining county or state, and may make contracts or agreements pertaining to the opening up of such state line and the construction of a highway thereon. If the board of county commissioners deems it proper, it may agree with the officials of the adjoining county or state for the allotment of the highway on said state line, and may assume the obligation of construction and maintenance of certain parts of the said highway in return for the assumption of like obligations by the officials of the adjoining county or state as to a like portion of the state line forming the boundary of the said county.

Source:

S.L. 1923, ch. 228, § 1; 1925 Supp., § 2047a; R.C. 1943, § 24-0508.

24-05-09. Purchase or condemnation of right of way.

The board of county commissioners of any county of the state, by resolution or order, as part of the cost of constructing, reconstructing, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining, any highway in said county, may purchase, acquire, take over, or, subject to section 32-15-01, condemn, under the right and power of eminent domain, for such county, any and all lands which it deems necessary for the present use, either temporary or permanent, and to provide adequate drainage in the improvement, constructing, reconstructing, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining of any highways in said county, and by the same means it may acquire said lands notwithstanding the fact that the title thereto is vested in the state or any of its subdivisions. Whenever the board of county commissioners determines, by resolution or order, that the public necessity requires the taking of land as aforesaid, it shall cause said lands to be surveyed and described and a plat thereof prepared and recorded in the office of the recorder of the county wherein the same is located. The board of county commissioners, or its duly authorized agents and employees, may enter upon any land for the purpose of making such survey, examination, or test, but in case of damages to the premises the board of county commissioners forthwith shall pay to the owner of said premises the amount of such damages.

Source:

S.L. 1935, ch. 121, § 1; 1941, ch. 173, § 1; R.C. 1943, § 24-0509; S.L. 2001, ch. 120, § 1; 2007, ch. 293, § 14.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

Notes to Decisions

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

Collateral References.

Damage to private property caused by negligence of governmental agents as “taking,” “damage,” or “use” for public purposes, in constitutional sense. 2 A.L.R.2d 677.

Access: abutting owner’s right to compensation for loss of access because of limited access highway or street, 43 A.L.R.2d 1072; 42 A.L.R.3d 13; 42 A.L.R.3d 148.

Conveyance of land as bounded by street, road, or other way as giving grantee right to compensation upon taking for public highway, 46 A.L.R.2d 461, 490.

Billboards: municipal regulation of billboards and outdoor advertising as taking property without compensation, 58 A.L.R.2d 1314.

Access: power to directly regulate or prohibit, without making compensation, abutter’s access to street or highway, 73 A.L.R.2d 652.

Parkway: right of owners of property abutting street to be compensated for loss of their interest in parkway in center of street on its appropriation for other uses, 81 A.L.R.2d 1436.

Grade change: use or improvement of highway as establishing grade necessary to entitle abutting owner to compensation on subsequent change, 2 A.L.R.3d 985.

Excess condemnation: right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Abutting owner’s right to damages for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 13.

Measure and elements of damage for limitation of access caused by conversion of conventional road into limited-access highway, 42 A.L.R.3d 148.

Salting for snow removal as taking or damaging abutting property for eminent domain purposes, 64 A.L.R.3d 1239.

24-05-10. Damages — How ascertained — Special board.

If the board of county commissioners is unable to purchase the lands required for the purposes mentioned in section 24-05-09 at a price that the board determines reasonable, the board by order or resolution shall declare the necessity for the taking of the lands. The board of county commissioners shall appoint a special board consisting of the county auditor or the county official responsible for the duties of the auditor and two other officials of the county to fix the damages for the taking.

Source:

S.L. 1935, ch. 121, § 2; R.C. 1943, § 24-0510; S.L. 2001, ch. 120, § 1; 2007, ch. 253, § 1.

Notes to Decisions

Appeal.

The determination by the board of commissioners declaring the necessity for taking of land is subject to appeal. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

24-05-11. Hearing before special board — Notice.

Within fifteen days after the making of an order or the passing of a resolution as provided in section 24-05-10, the special board therein specified shall fix a time and place not later than thirty days from and after the passage of said order or resolution for hearing all persons or parties interested or aggrieved by such taking, and it shall cause notice of said hearing to be served upon all parties interested either by registered or certified mail or by publication thereof, once each week for two successive weeks prior to the date of hearing, stating the time and place where the hearing must be held, together with a description of the property to be appraised. Such published notice must be in lieu of all other notices, and if notice is given by registered or certified mail, the same must be served not less than ten days prior to the date of hearing. Personal service by copy of said notice may be made in lieu of publication or service by mail when made at least ten days prior to the date of hearing, such personal service to be made as a summons in district court is served. At the time and place fixed for said hearing, the special board so organized shall proceed to fix the damages to be paid by the county and any person interested may be heard.

Source:

S.L. 1935, ch. 121, § 2; R.C. 1943, § 24-0511.

Notes to Decisions

Land for State Highways.

The only function of county commissioners when land is taken for state highways is to assess the damages and to make an award to owner of lands taken upon request by state highway commissioner. Peterson v. State Hwy. Comm’r, 63 N.W.2d 138 (N.D. 1954), overruled on other grounds, MacDonald v. North Dakota Comm’n on Medical Competency, 492 N.W.2d 94 (N.D. 1992), distinguished, Haman v. McHenry County, 72 N.W.2d 630, 1955 N.D. LEXIS 142 (N.D. 1955), overruled, MacDonald v. North Dakota Comm'n on Medical Competency, 492 N.W.2d 94, 1992 N.D. LEXIS 205 (N.D. 1992).

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

24-05-12. Payment or deposit of damages — Receipt.

When damages have been awarded by the special board, the board of county commissioners shall pay or cause to be paid to the clerk of the district court, for the benefit of the persons interested, the sum awarded by said board, said amount to be paid in cash. Every owner entitled to such an award, before receiving the same, shall execute a receipt, to be received by the clerk of said district court, containing a description of the premises covered by said award and an acknowledgment of full and complete satisfaction for all damages sustained. In case the owner fails or refuses to accept such award and execute such receipt within ten days after being notified of the amount awarded to the owner, the clerk of the court to whom said amount has been paid shall execute a receipt reciting a deposit of such award and a description of the premises covered thereby.

Source:

S.L. 1935, ch. 121, § 2; R.C 1943, § 24-0512.

Notes to Decisions

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

24-05-13. Receipt for payment to be recorded if no appeal taken.

If no appeal is taken from an award made as provided in section 24-05-11, then at the expiration of thirty days from the date of the deposit of the amount awarded, the receipt of the owner of said premises, or of the clerk of the district court, must be recorded in the office of the recorder of the county in which said real estate is situated, and the title of the land so taken thereupon must be vested in the county so condemning the same.

Source:

S.L. 1935, ch. 121, § 2; R.C. 1943, § 24-0513; S.L. 2001, ch. 120, § 1.

Notes to Decisions

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

24-05-14. Appeal — How taken — Jury trial.

Any party aggrieved by the award made as provided in section 24-05-11 shall have the remedy now provided by law for an appeal from any determination of the board of county commissioners in the taking of lands by a county for highway purposes. Appeal from such award must be taken without bond and by the service of a notice of appeal on the board of county commissioners in the manner in which a summons in a civil action is served. The issues involved in the appeal so taken must be tried and determined at the next term of the district court. The damages must be assessed by a jury, unless a trial by jury is waived, and no fees may be collected by the clerk of the district court for the filing of said appeal.

Source:

S.L. 1935, ch. 121, § 3; R.C. 1943, § 24-0514.

Cross-References.

Service of summons, see N.D.R.Civ.P. 4.

Notes to Decisions

Failure to Appeal.

Property owner who acquiesced in relocation of highway for ten years, and did not appeal such relocation, was enjoined from committing a public nuisance by obstructing the highway. McLean County v. Rathjen, 41 N.D. 73, 169 N.W. 580, 1918 N.D. LEXIS 125 (N.D. 1918).

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

State Highways.

This section has no application to proceedings by state highway commissioner in taking lands for state highways. Peterson v. State Highway Comm'r, 63 N.W.2d 138, 1954 N.D. LEXIS 67 (N.D. 1954), overruled, MacDonald v. North Dakota Comm'n on Medical Competency, 492 N.W.2d 94, 1992 N.D. LEXIS 205 (N.D. 1992).

Time of Appeal.

Where no appeal was taken from relocation order of highway by county commissioners, after lapse of a year, the order became final. McLean County v. Rathjen, 41 N.D. 73, 169 N.W. 580, 1918 N.D. LEXIS 125 (N.D. 1918).

24-05-15. Appeal does not stay proceedings.

Notwithstanding the taking of an appeal as provided for in section 24-05-14, the board of county commissioners may proceed with the use of the property so condemned and is liable for any additional amount awarded to the appellant upon such appeal.

Source:

S.L. 1935, ch. 121, § 4; R.C. 1943, § 24-0515.

Cross-References.

Municipality as condemner, procedure for immediate possession of right of way, see § 40-22-05.

Possession by condemner pending final conclusion of litigations, see § 32-15-29.

Notes to Decisions

Quick Take Procedure Applicable.

N.D.C.C. § 24-01-01 and N.D.C.C. §§ 24-05-09 through 24-05-15 authorizes a board to condemn property for roads using quick take procedures under N.D. Const. art. I, § 16; therefore, a trial court erred by granting a temporary injunction restraining a board of commissioners from surveying or condemning land for use as a public road, which constituted a public use. Eberts v. Billings County Bd. of Comm'rs, 2005 ND 85, 695 N.W.2d 691, 2005 N.D. LEXIS 93 (N.D. 2005).

24-05-16. County road system — Designation.

The county road system must be the roads designated and selected by the boards of county commissioners. The director must be informed of the system so designated. Any changes of the original designation which can be justified and based on new developments must be made by the board of county commissioners and the director must be notified of such changes. In designating and selecting roads on the county road system, the boards of county commissioners of the several counties shall take into account such factors as the actual or potential traffic volumes, the conservation and development of the county’s natural resources, the general economy of the communities, and the desirability of integrating such county roads into the general scheme of the statewide network of county roads.

Source:

S.L. 1953, ch. 180, §§ 1 to 3; 1957, ch. 194, § 1; R.C. 1943, 1957 Supp., § 24-0516; S.L. 1983, ch. 302, § 2; 2015, ch. 439, § 32, effective January 1, 2015.

24-05-17. Responsibility for county road system.

The boards of county commissioners in their respective counties have the sole authority and responsibility to acquire land for, construct, maintain, and operate the county road system as designated and selected by them.

Source:

S.L. 1953, ch. 177, § 43; R.C. 1943, 1957 Supp., § 24-0517.

Cross-References.

Weed control along county highways, see § 63-01.1-09.

24-05-18. Counties may cooperate with department — Procedure.

Whenever any board of county commissioners of any county decides that any county road or roads in such county must be improved or constructed in cooperation with the department, such board shall make written application to the director for the improvement and construction thereof. If the director approves such application, the director, in writing, shall notify the said board of such approval, and at the same time shall submit to the said board an estimate of the cost of such improvement, including the cost of engineering, the purchase or acquirement of right of way, and all other expenses, and the share or portion thereof which such county shall bear. However, the director may not require any county to pay for the cost or expense of acquiring right of way for the state highway system. Whenever the board of county commissioners aforesaid shall elect to proceed with such improvement, the said board shall adopt a resolution signifying such election and in such resolution must set aside out of such funds as are or may become available the amount necessary to pay the county’s share of the cost of such improvement. Upon written demand of the director, the board of county commissioners shall instruct and direct the county auditor by resolution to draw a warrant or warrants on the county treasurer in favor of the contractor, or of the department, for the county’s share of such amount or amounts as may become due during the progress of such improvement. The county shall also draw additional warrants in favor of the department as may be necessary to reimburse it for the county’s share of the cost of engineering and the acquisition of right of way. Such warrants must be drawn by the county treasurer upon the certificate of the director.

Source:

S.L. 1953, ch. 177, § 44; R.C. 1943, 1957 Supp., § 24-0518; S.L. 1959, ch. 228, § 2.

24-05-19. County bound to provide its share of cost.

The election to proceed with an improvement as provided in section 24-05-18 by the board of county commissioners constitutes an agreement and contract with the director and the board of county commissioners shall provide sufficient funds in accordance with law to defray its share of the cost of such improvement or shall levy sufficient taxes therefor. Construction on such improvement must be commenced within one year.

Source:

S.L. 1953, ch. 177, § 45; R.C. 1943, 1957 Supp., § 24-0519.

24-05-20. County and township road grades and ditches to be back sloped — Planting of grass — Plant pest control.

All county and township roads shall be constructed with back sloped grades and ditches. Such grades and ditches shall be sloped to a sufficient degree to permit farm implements used for cutting and gathering hay to operate thereon, and such grades and ditches shall be cleared of all stones or other obstructions that would hinder the operation of such implements. Upon completion of such newly constructed or reconstructed roads, the governing body having authority over such roads shall plant grass upon the back slopes of the grades and ditches. The grass or hay growing upon or within the right of way of such roads may be cut for hay by any owner or tenant of lands adjoining the right of way.

  1. The governing body of a township or a county may control, or cause to be controlled, grasshoppers and other plant pests which are infesting vegetation in the road rights of way under their authority. Only pesticides that are labeled for use on forage crops may be used so that the forage may be cut and used for hay. At least three days prior to treatment, the governing body of the township or county shall provide written notice to all of the landowners or tenants, or both, of all land adjacent to the rights of way to be treated. The notice must include the approximate date of treatment, the name of the pesticide that will be used, and any restrictions on the harvest and use of the treated forage. If a landowner or occupant of land adjacent to the road right of way to be treated gives notice opposing the treatment to the governing body of the township or county prior to the treatment date that section of the right of way must be excluded from treatment. The landowner or tenant of the land is responsible for clearly marking or flagging the section of the right of way to be excluded from treatment.
  2. The governing body of a county may enter into agreements with the department of transportation for the purpose of controlling grasshoppers and other plant pests in state highway system rights of way. The governing body of a township may enter into agreements with the governing body of a county for controlling grasshoppers and other plant pests in rights of way of the county road system. The governing body of a county may use the county emergency fund, as provided for in section 57-15-28, to pay for the cost of control in rights of way of the county road system. The county emergency fund may also be used to cost share with townships for control expenses in township rights of way. The electors of an organized township may appropriate funds as provided for in section 57-15-19 for controlling grasshoppers and other plant pests in rights of way controlled by the township.

Source:

S.L. 1955, ch. 179, § 1; R.C. 1943, 1957 Supp., § 24-0520; S.L. 1991, ch. 290, § 1.

24-05-21. Roads and approaches intersecting with county or township roads — Requirement.

All roads and approaches constructed after July 1, 1973, which intersect with county or township roads, must have a graded inslope at the place of intersection of at least a three-to-one ratio, thus permitting vehicles which may accidentally leave any county or township road and strike the inslope a reasonably safe access over the road or approach.

Source:

S.L. 1973, ch. 224, § 1.

24-05-22. Graded inslope requirement — Exceptions.

The requirement of section 24-05-21 as to a graded inslope of all roads and approaches does not apply:

  1. Where the governing body having authority over such roads and approaches exempts such roads and approaches from the requirement of section 24-05-21 due to factors causing an unduly prohibitive cost of compliance.
  2. To roads and approaches of the state highway system which intersect county or township roads.
  3. To roads and approaches which intersect county roads constructed in compliance with requirements of the federal-aid system.

Source:

S.L. 1973, ch. 224, § 2.

24-05-23. Encroachment upon county roads, ditches, approaches — Liability for damages.

A landowner who encroaches upon a county road or its ditches or approaches must be given notice by the board of commissioners for that county that the encroachment has been discovered. If the landowner fails to remedy the encroachment within twenty days after receiving the notice, that landowner is liable to the county for damages resulting from the encroachment. The board of commissioners for that county shall issue to the landowner written notice of the amount of damages determined to be a result of the encroachment. If the landowner fails to pay the county for the damages, the expense of the repair must be charged to the land of the landowner. The expenses charged become a part of the taxes to be levied against the land for the ensuing year and must be collected in the same manner as other real estate taxes are collected and placed to the credit of the county that incurred the expense of the repair.

Source:

S.L. 1991, ch. 291, § 1.

24-05-24. County and township road rights of way — Removal of obstructions.

The governing body having authority over the right of way of a county or township road may develop and implement rules governing the disposal of any stored hay or other obstruction placed on the right of way.

Source:

S.L. 1997, ch. 239, § 1.

CHAPTER 24-06 Local Road Improvements

24-06-01. Board of township supervisors has supervision over township roads.

The board of township supervisors of any township in the state has general supervision over the roads, highways, and bridges throughout the township.

Source:

S.L. 1893, ch. 112, § 4, subch. 2; 1895, ch. 91, § 1; R.C. 1895, §§ 1114, 2668; R.C. 1899, §§ 1114, 2668; S.L. 1905, ch. 176, § 1; R.C. 1905, §§ 1404, 3209; C.L. 1913, §§ 1977, 4265; R.C. 1943, § 24-0601.

Cross-References.

Overseer of highways, duty when carcass of dead animal found, see § 36-14-20.

Overseer of highways to fill wells on state and school lands, see § 23-13-07.

Township may issue bonds for highway and bridge purposes, see § 21-03-06.

Township overseer of highways, see N.D.C.C. ch. 58-12.

Weed control, see § 63-01.1-13.

Notes to Decisions

Bridges.

Township has power to build bridges in the township, but such power must be exercised by the electors. Caterpillar Tractor Co. v. Detman Township, 62 N.D. 465, 244 N.W. 876, 1932 N.D. LEXIS 205 (N.D. 1932).

Culverts.

It is the duty of the board of township supervisors to inspect and make plans for culverts to be constructed where necessary. Lemer v. Koble, 86 N.W.2d 44, 1957 N.D. LEXIS 166 (N.D. 1957).

Drains.

The township has a duty not only to provide for the drainage of surface waters when building roads, but also to maintain such drains. The owner of land damaged by the unlawful obstruction of surface water by a township road is entitled to an injunction directing the township to maintain such drains as exist or provide a new drain. Rynestad v. Clemetson, 133 N.W.2d 559, 1965 N.D. LEXIS 165 (N.D. 1965).

Eminent Domain.

Where township took private property for use as a culvert, it was liable to the owner thereof for reasonable value of such land. Township of Noble v. Aasen, 8 N.D. 77, 76 N.W. 990, 1898 N.D. LEXIS 11 (N.D. 1898).

Established Roads.

A city may construct a bridge only on a highway legally established. Manning v. City of Devils Lake, 13 N.D. 47, 99 N.W. 51, 65 L.R.A. 187, 112 Am. St. Rep. 652 (1904), decided prior to the enactment of § 40-60-01 N.D.C.C.

Liability for Negligence.

A township is not liable for the loss suffered by a landowner from the increased flow of surface water upon his land resulting solely from the improvement of a highway in the ordinary manner without negligence. Carroll v. Rye Township, 13 N.D. 458, 101 N.W. 894, 1904 N.D. LEXIS 71 (N.D. 1904).

Private Roads.

Construction of a road by private individuals and by private subscription did not impose duty of maintaining and keeping it in repair upon the township in which it was situated. Manning v. City of Devils Lake, 13 N.D. 47, 99 N.W. 51, 65 L.R.A. 187, 112 Am. St. Rep. 652 (1904), decided prior to the enactment of § 40-60-01 N.D.C.C.

Section Line.

Section 24-12-02(4) does not limit a board’s authority over a traveled section line by allowing it to be plowed without permission when that activity does not obstruct usual travel. State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Isolated crossing and drainage culvert did not improve section line enough to impose the restrictions against plowing in section 24-12-02(2). State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

District court erred in ruling that a township had no duty of care with regard to a section line because parents alleged that a property owner told two township board members that the section line was in a hazardous or dangerous condition and such allegation was sufficient to raise a genuine issue of material fact as to whether or not the township had actual knowledge of the condition. Kappenman v. Klipfel, 2009 ND 89, 765 N.W.2d 716, 2009 N.D. LEXIS 96 (N.D. 2009).

DECISIONS UNDER PRIOR LAW

Immunity of Township.

To the extent that a township could repair and maintain highways and bridges it was an instrumentality of the state, and in absence of a statute fixing liability was immune from liability for the acts or negligence of its officers as to repairs and defects in roads and bridges. Vail v. Town of Amenia, 4 N.D. 239, 59 N.W. 1092 (1894), overruled, Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D. 1974) which abolished governmental immunity as to political subdivisions except for acts which were discretionary in character.

24-06-02. Township may purchase road machinery — Credit terms.

The board of supervisors of any township may contract for and purchase, upon credit or otherwise, any road machinery, implements, or equipment for the use of such township.

Source:

S.L. 1899, ch. 140, §§ 1, 2; R.C. 1899, §§ 1115a, 1115b; S.L. 1901, ch. 147, § 1; R.C. 1905, §§ 1406, 1407; C.L. 1913, §§ 1979, 1980; S.L. 1917, ch. 201, § 1; 1925 Supp., § 1980; R.C. 1943, § 24-0602; S.L. 1951, ch. 178, § 1; 1957 Supp., § 24-0602; S.L. 1979, ch. 187, § 40.

Notes to Decisions

Purchase of Grader.

A grader may be purchased by a township board without authority from the freeholders. Bank of Park River v. Norton, 14 N.D. 143, 104 N.W. 525, 1905 N.D. LEXIS 60 (N.D. 1905).

24-06-03. Election required if road machinery costs more than four hundred dollars. [Repealed]

Repealed by S.L. 1975, ch. 241, § 1.

24-06-04. Cost of township road machinery — How paid.

Road implements purchased by a township must be paid out of the highway taxes of the township and may be paid in not to exceed five annual installments. A copy of the note or contract issued upon the purchase must be filed in the office of the township clerk, and such township clerk shall present a statement of the sum due thereon to the board of township supervisors at each regular meeting held thereafter for the audit of the township claims and charges, and the board shall audit the same. Not more than one-half of the highway taxes of the township may be applied to the payment thereof in any one year.

Source:

S.L. 1899, ch. 140, § 2; R.C. 1899, § 1115b; S.L. 1901, ch. 147, § 1; R.C. 1905, § 1407; C.L. 1913, § 1980; S.L. 1917, ch. 201, § 1; 1925 Supp., § 1980; R.C. 1943, § 24-0604.

Cross-References.

Township tax levies, see §§ 57-15-19, 57-15-19.2 to 57-15-22.

24-06-05. Overseer responsible for machinery.

Each overseer of highways is responsible personally for the proper use and care of all implements while in the overseer’s charge, or in use in the overseer’s district, and any overseer of highways, or other person who, through negligence or willfully injures or damages such implements or permits them to be injured, is liable for such damage to the township, in an action to be brought by the chairman of the board of township supervisors in the township or any adjoining township.

Source:

S.L. 1899, ch. 140, § 3; R.C. 1899, § 1115c; R.C. 1905, § 1408; C.L. 1913, § 1981; R.C. 1943, § 24-0605; S.L. 1981, ch. 320, § 40; 1991, ch. 326, § 67.

Cross-References.

Township overseer of highways, see N.D.C.C. ch. 58-12.

24-06-06. Storage of implements.

Each board of township supervisors shall provide suitable places for the storage and proper housing of all tools, implements, and machinery owned by the township and shall cause such tools, implements, and machinery to be stored and housed therein when not in use.

Source:

S.L. 1899, ch. 140, § 4; R.C. 1899, § 1115d; R.C. 1905, § 1409; C.L. 1913, § 1982; R.C. 1943, § 24-0606.

24-06-07. Road machinery — Sale, purchase, lease.

In townships owning road machinery, the board of township supervisors may make such disposition of the same as in its discretion is best for the interests of the township, or it may purchase or lease such machinery as may be necessary.

Source:

S.L. 1895, ch. 91, § 6; R.C. 1895, § 2673; R.C. 1899, § 2673; S.L. 1905, ch. 181, § 1; R.C. 1905, § 3213; S.L. 1911, ch. 146, § 1; C.L. 1913, § 4269; R.C. 1943, § 24-0607; S.L. 1951, ch. 178, § 2; 1957 Supp., § 24-0607; S.L. 1979, ch. 187, § 41.

24-06-08. Contracts for township road improvements — Notice — Bids. [Repealed]

Repealed by S.L. 1953, ch. 181, § 1.

24-06-09. Contract for township road and bridge work by county, township, or soil conservation district.

The board of supervisors of any township may enter into a contract with the board of county commissioners of the county, the board of supervisors of another township, or the directors of a soil conservation district for the construction, improvement, or repairing of township roads and bridges without the necessity of advertising for bids.

Source:

S.L. 1931, ch. 301, § 1; R.C. 1943, § 24-0609; S.L. 1951, ch. 178, § 4; 1957 Supp., § 24-0609.

24-06-10. Roads contiguous to municipality — Grades — How established.

In all places where highways are improved and graded under the contract system in a township where land contiguous to, adjoining, and outside of the limits of any city has been surveyed into a block or blocks and divided into city lots, the person to whom such contract is awarded shall comply strictly with the ordinances of such city as to roads, streets, grades, space for sidewalks, berms, and gutters, if, in the opinion of the board of township supervisors having control of the same, the cost of such grading is one hundred dollars or upwards. An estimate, profile, and cross section of such desired improvement must be made by the county surveyor of said county, and the contract for such improvement must be let to the lowest responsible bidder not a member of the said board and the work done under such contract may not be accepted or paid for until said surveyor has reported that the said contract has been complied with substantially. All roads and streets in city additions of outlots must be graded according to the requirements of such city ordinance or custom as to space for sidewalks, berms, and gutters.

Source:

S.L. 1905, ch. 118, § 1; R.C. 1905, § 1447; C.L. 1913, § 2036; R.C. 1943, § 24-0610; S.L. 1967, ch. 323, § 79.

Cross-References.

Grades and ditches, grass planting, specifications, see § 24-05-20.

24-06-11. Construction of crossings over ditches, drains, and roads.

Whenever a township constructs a ditch or drain in connection with road building, and such ditch, drain, or road interferes with the ingress or egress of any owner of adjoining land, the township shall install crossings at such point or points as will afford the owner or owners of the premises suitable ingress thereto or egress therefrom.

Source:

S.L. 1931, ch. 300, § 1; R.C. 1943, § 24-0611.

24-06-12. Townships may unite efforts.

The electors of any township, at the annual township meeting, may direct such portion of the road tax to be expended on the highways in an adjoining township as they deem conducive to the interests of the township. In such instance, labor and taxes must be expended under the joint direction of the townships interested and furnishing the same.

Source:

S.L. 1929, ch. 235, § 8; R.C. 1943, § 24-0612.

24-06-13. Townships composed of more than one congressional township — Expenditure of road taxes.

Where more than one congressional township is included within a civil township, the road taxes raised within the limits of each congressional township must be expended within such congressional township, unless raised to be expended outside of such civil township.

Source:

S.L. 1929, ch. 235, § 8; R.C. 1943, § 24-0613.

24-06-14. District overseer of highways.

In unorganized territory, the board of county commissioners shall appoint a district overseer of highways whose power and duties are the same as in an organized township, and whose compensation must be fixed by the board of county commissioners to be paid on presentation of a verified bill at the regular meeting of the board of county commissioners. The board may, by resolution, appoint one or more of its members as district overseers.

Source:

S.L. 1913, ch. 92, § 1; C.L. 1913, § 1990m; S.L. 1915, ch. 260, § 1; 1925 Supp., § 1990m; R.C. 1943, § 24-0614; S.L. 1999, ch. 102, § 2.

Cross-References.

Township overseer of highways, see N.D.C.C. ch. 58-12.

24-06-15. Road taxes in unorganized territory — How expended.

The board of county commissioners shall order the expenditure of all road taxes paid into the county treasury from unorganized territory in the improvement of the highways, paying the district overseer of highways, purchasing implements, and repairing bridges in the road district in which such taxes were levied, under such regulations as it may deem most expedient for the public interests, and for this purpose shall order the payment of such sum by the treasurer to the persons performing such labor upon the certificate of the overseer of highways.

Source:

Pol. C. 1877, ch. 29, § 70; R.C. 1895, § 1108; R.C. 1899, § 1108; R.C. 1905, § 1398; C.L. 1913, § 1971; R.C. 1943, § 24-0615.

Cross-References.

Levies in unorganized townships, see §§ 57-15-21, 57-15-22.

Notes to Decisions

Individual Action.

Board of county commissioners must act collectively and as a board, and county was not bound by any action taken by county commissioners as individuals. Rolette State Bank v. Rolette County, 56 N.D. 571, 218 N.W. 637, 1928 N.D. LEXIS 176 (N.D. 1928).

Organized Counties.

This section has no application to counties formed into townships. Blue Grass Township v. Morton County, 21 N.D. 557, 132 N.W. 148, 1911 N.D. LEXIS 132 (N.D. 1911).

24-06-16. Report of district overseer of highways.

On or before the first Monday in January in each year, each district overseer of highways appointed by the board of county commissioners shall make a report to the board of the overseer’s doings as such during the preceding year, the amount of labor performed, and the number of days’ labor necessarily performed by the overseer in the discharge of the overseer’s duties, and the board of county commissioners thereupon shall cause a warrant to be drawn on the county treasurer in favor of such overseer for such services.

Source:

Pol. C. 1877, ch. 29, § 73; R.C. 1895, § 1112; R.C. 1899, § 1112; S.L. 1903, ch. 155, § 1; R.C. 1905, § 1402; C.L. 1913, § 1975; R.C. 1943, § 24-0616.

24-06-17. Road taxes must be paid in cash.

All road taxes and assessments upon persons or property must be paid in cash, and the township clerk, immediately after the board of township supervisors has made the levy of taxes for road purposes, shall notify the county auditor of the amount of the levy. The county auditor shall enter the same upon the county tax lists to be collected by the county treasurer in the same manner as other township taxes are collected. Such taxes, when collected, constitute a road fund belonging to the township in which it is levied, and must be returned by the county treasurer to the township treasurer.

Source:

S.L. 1913, ch. 92, § 3; C.L. 1913, § 1990o; R.C. 1943, § 24-0617.

24-06-18. Road taxes to be paid to local subdivisions. [Repealed]

Repealed by S.L. 1953, ch. 179, § 2.

24-06-19. Expenditure of road taxes.

The board of township supervisors shall order the expenditure of all road taxes paid into the township treasury in the improvement of the highways under such regulations as it may deem most expedient for the public interests, and for this purpose, shall issue a warrant upon the road funds of the township upon the certificate of the township overseer that such work has been performed satisfactorily; provided, however, that not over fifty percent of the township road and bridge fund, collected within each tax year may be expended upon highways which are a part of a state or county highway system as designated under the provisions of section 24-01-02, 24-01-05, or 24-05-16, unless such expenditure is specifically authorized by resolution adopted by a majority of the electors of the township present and voting at any special or annual township meeting. This limitation also applies to any special road fund as set up under section 57-15-19.2.

Source:

S.L. 1913, ch. 92, § 5; C.L. 1913, § 1990q; R.C. 1943, § 24-0619; S.L. 1955, ch. 180; 1957 Supp., § 24-0619.

Cross-References.

Township tax levies, see §§ 57-15-19, 57-15-19.2 to 57-15-22.

24-06-20. Work on roads to proceed upon levy of taxes.

The officers charged with the duty of expending road taxes may proceed at once, upon the levy of taxes, with the work upon the roads in their districts and may cause warrants to be issued in payment thereof in anticipation of the current year’s taxes.

Source:

S.L. 1895, ch. 91, § 4; R.C. 1895, § 2671; R.C. 1899, § 2671; R.C. 1905, § 3211; S.L. 1913, ch. 92, § 6; C.L. 1913, §§ 1990r, 4267; R.C. 1943, § 24-0620.

24-06-21. Road tax may be worked out. [Repealed]

Repealed by S.L. 1951, ch. 178, § 5.

24-06-22. Supervisors to fix compensation for road work, when. [Repealed]

Repealed by S.L. 1951, ch. 178, § 5.

24-06-23. County commissioners to fix rate, when. [Repealed]

Repealed by S.L. 1951, ch. 178, § 5.

24-06-24. Compensation for road work when not fixed. [Repealed]

Repealed by S.L. 1951, ch. 178, § 5.

24-06-25. Work done prior to August first. [Repealed]

Repealed by S.L. 1951, ch. 178, § 5.

24-06-26. Ditches to drain highways — Proceedings to establish.

Whenever any overseer of highways files with the board of township supervisors or with the board of county commissioners, as the case may be, the overseer’s affidavit stating that a certain road in the overseer’s district runs into or through swamp, bog, meadow, or other lowland, and that it is necessary or expedient that a ditch should be constructed and maintained through land belonging to any person, and also stating the probable length of such ditch and the width and depth of the same as near as may be, the point at which it is to commence, its general course and the point at or near which it is to terminate, the names of the persons owning the land, if known, and a description of the land over which such ditch must pass, the board of township supervisors or board of county commissioners, as the case may be, if the right to construct and maintain such ditch is not given voluntarily by the person owning the land over which it is to pass, shall cause proceedings to be instituted in its name under the provisions of chapter 32-15 to acquire the right to construct and maintain the same.

Source:

S.L. 1883, ch. 112, § 87, subch. 2; R.C. 1895, § 1151; R.C. 1899, § 1151; R.C. 1905, § 1452; C.L. 1913, § 2041; R.C. 1943, § 24-0626.

Cross-References.

Culverts furnished at county expense, see § 24-08-02.1.

Township and county roads, grades and ditches to be back sloped and grass planted, see § 24-05-20.

Notes to Decisions

Compensation.

Where township deems it necessary to take property to construct a ditch, it must give the owner thereof compensation. Township of Noble v. Aasen, 8 N.D. 77, 76 N.W. 990, 1898 N.D. LEXIS 11 (N.D. 1898).

24-06-26.1. Township road and drainage construction standards.

When the construction or reconstruction of a township road or bridge, the insertion of a culvert in a township road, or the construction or reconstruction of a ditch or drain in connection with a township road affects the flow of surface waters and increases the surface waterflow through ditches, drains, bridges, and culverts in other townships, the board of township supervisors or the township overseer of highways of the township undertaking the construction or reconstruction shall give notice to the boards of township supervisors or township overseers of highways in all townships affected by the construction or reconstruction projects.

The boards of township supervisors of townships affected by any road or bridge construction that changes or increases the flow of surface waters shall cooperate in the construction projects expending on any portion of the projects the portions of the road and bridge tax as deemed conducive to the interests of the township. The board of township supervisors shall construct the ditches, drains, bridges, and culverts in accordance with stream crossing standards prepared by the department and the department of water resources. A township, board of township supervisors, and township overseer of highways are not liable for any damage caused to any structure or property by water detained by the highway at the crossing if the highway crossing has been constructed in accordance with the stream crossing standards prepared by the department and the department of water resources.

Source:

S.L. 1951, ch. 180, §§ 1, 2; R.C. 1943, 1957 Supp., § 24-06261; S.L. 1999, ch. 248, § 3; 2021, ch. 488, § 13, effective August 1, 2021.

24-06-26.2. Maintenance of township road ditches — Limited duty.

The party with an interest in land adjacent to a township road is not responsible for maintaining that ditch unless improper conservation practices on that party’s adjoining land have led to unreasonable wind and water erosion, not commonly experienced in the locality, which resulted in conditions adversely affecting the ditch. On the occurrence of such improper conservation practices, the board of township supervisors may require the adjoining party with an interest in the land to clean the ditch at that party’s expense. If that party fails to clean the ditch, the procedures applicable to the duty to cut weeds under chapter 63-05 apply with respect to the cleaning of the ditch.

Source:

S.L. 1987, ch. 318, § 1.

24-06-26.3. Maintenance of township road ditches by private party — Power of board of township supervisors — Approval — Standards of construction.

The board of township supervisors may authorize any private party to maintain, clean, or shape a ditch along a township road at that party’s own expense and in accordance with this section. In maintaining, cleaning, or shaping a ditch, the private party may not spread any soil or debris from that ditch along adjoining land without the permission of all parties with an interest in that land. The ditch may be on a continuous grade from the bottom of the upstream water outlet to the bottom of the downstream water outlet structure. The grade ratio in that distance must be a slope that, in light of the soil types and potential for vegetative cover in the ditch, will resist erosion. In order for any action to be considered maintenance of a ditch in accordance with this section, the ditch must be entirely contained within the township right of way, must have a bottom that is not wider than twelve feet [3.66 meters], and may not alter the side slope of the ditch to a slope steeper than the existing side slope. The board of township supervisors may not approve private maintenance of a ditch that does not comply with the standards of this section. If the board of township supervisors denies permission to maintain a ditch under this section, the petitioner may appeal that decision to the water resource board that has jurisdiction over the ditch. This section does not relieve any person from compliance with any requirements for a drainage permit which are required by statute or rule.

Source:

S.L. 1987, ch. 319, § 1.

24-06-27. Penalty for injuring ditch.

Any person who obstructs or in any way injures any ditch opened as provided in section 24-06-26 is liable to pay to the overseer of highways of such road district double the damages caused by such injury, which must be assessed by the jury or court, and also is guilty of a class B misdemeanor, and the civil damages, when collected by the overseer, must be deposited in the road fund established by section 24-06-17, and must be expended in accordance with section 24-06-19.

Source:

S.L. 1883, ch. 112, § 92, subch. 2; R.C. 1895, § 1152; R.C. 1899, § 1152; R.C. 1905, § 1453; C.L. 1913, § 2042; R.C. 1943, § 24-0627; S.L. 1975, ch. 106, § 262.

Notes to Decisions

Injunctive Relief.

Owner of land over which natural drainage had been unlawfully obstructed by road embankments was entitled to injunction against township supervisors directing them to provide outlet for surface waters. Viestenz v. Arthur Township, 78 N.D. 1029, 54 N.W.2d 572, 1952 N.D. LEXIS 93 (N.D. 1952).

24-06-28. Obstruction of section lines prohibited — Exception — Certain fences not considered obstructions — Obstructions and traffic safety hazards — Penalty.

  1. A person may not place or cause to be placed any permanent obstruction within the vertical plane of thirty-three feet [10.06 meters] of any section line or within the right of way of any highway, unless written permission is first secured from the board of county commissioners or the board of township supervisors, as appropriate. The permission must be granted where the section line has been closed pursuant to section 24-07-03 or where the topography of the land along the section line is such that in the opinion of the board of county commissioners or board of township supervisors, as the case may be, the construction of a road on the section line is impracticable.
  2. A person may not place or cause to be placed any obstruction or traffic safety hazard within the vertical plane of thirty-three feet [10.06 meters] of any section line or within the right of way of any highway, unless written permission is first secured from the board of county commissioners or board of township supervisors, as appropriate.
  3. Subsection 1 may not be construed to prohibit construction of fences:
    1. Along or across section lines which have been closed pursuant to section 24-07-03 or which have not been opened because construction of a road is impracticable due to the topography of the land along the section line, but such fences are subject to removal as provided in section 24-06-30.
    2. Across section lines which have not been closed pursuant to section 24-07-03 if cattle guards are provided in accordance with chapter 24-10 where fences cross the section lines.
  4. The construction of fences pursuant to subsection 3 may not be considered an obstruction of section lines and any person who damages any fence or who opens and fails to close any gate constructed under subsection 3 is guilty of an infraction.
  5. Subsection 2 does not apply to a railroad company performing maintenance and repair work of railroad track, crossings, or other railroad facilities.

Source:

S.L. 1919, ch. 142, § 1; 1925 Supp., § 2037a1; R.C. 1943, § 24-0628; S.L. 1953, ch. 182, § 1; 1955, ch. 181, § 1; 1957 Supp., § 24-0628; S.L. 1975, ch. 242, § 1; 1977, ch. 234, § 1; 1993, ch. 277, § 1; 1995, ch. 263, § 1; 2009, ch. 237, § 1; 2011, ch. 201, § 1.

Notes to Decisions

Amendment.

Fact that 1975 amendment to this section was made after entry of judgment requiring removal of fences constructed across section lines was not grounds for vacating judgment under subdivisions (5) or (6) of N.D.R.Civ.P. 60(b). Small v. Burleigh County, 239 N.W.2d 823, 1976 N.D. LEXIS 205 (N.D. 1976).

Approval of Encroachment.

A county board of commissioners cannot arbitrarily approve an encroachment that prevents the public from travelling on an open section line that is free of natural obstacles. Burleigh County Water Resource Dist. v. Burleigh County, 510 N.W.2d 624, 1994 N.D. LEXIS 2 (N.D. 1994).

Construction.

Section requires construction of cattle guards and gateways at every point where fence line crosses section line, permitting free movement of vehicles over cattle guards and bypass of cattle guard for livestock movement through adjacent gateway, which must include gate. Saetz v. Heiser, 240 N.W.2d 67 (N.D. 1976), overruled on other grounds, First Nat’l Bank v. Dangerud, 316 N.W.2d 102 (N.D. 1982), decided prior to 1977 amendment.

Prior written permission requirement of this section applies to fences, gateways, gates and cattle guards; board may grant permission only where topography of land along section line is such as to preclude construction of road there. Saetz v. Heiser, 240 N.W.2d 67 (N.D. 1976), overruled on other grounds, First Nat’l Bank v. Dangerud, 316 N.W.2d 102 (N.D. 1982), decided prior to 1977 amendment.

Easement for Public Travel.

Although fee title to real property extends to and includes the section line, it is subject to an easement for public travel which extends two rods on either side of every section line, and provisions of this section permitting fencing on the lines do not deprive the public of its easement rights; if section line is actually traveled, a person who fences the line may be required to remove his fence. Small v. Burleigh County, 225 N.W.2d 295 (N.D. 1974), decided prior to 1975 amendment.

Evidence Sufficient.

Given in part defendant's testimony that he placed a rock on the section line, and testimony describing where the accident occurred as a section line, a rational fact finder could have determined that defendant placed the rock on a section line, and there was sufficient evidence to support the conviction, and defendant's claim that the trial court erred in not granting his acquittal motion was rejected. State v. Bear, 2015 ND 36, 859 N.W.2d 595, 2015 N.D. LEXIS 30 (N.D. 2015).

Obstruction of Travel.

Only when an obstruction effectively deprives the public of the ability to travel on an open section line is the public’s right to travel violated. Burleigh County Water Resource Dist. v. Burleigh County, 510 N.W.2d 624, 1994 N.D. LEXIS 2 (N.D. 1994).

Permanent Obstruction.

This section does not mandate that a board of supervisors remove permanent obstructions. Burleigh County Water Resource Dist. v. Burleigh County, 510 N.W.2d 624, 1994 N.D. LEXIS 2 (N.D. 1994).

Rock did not completely obstruct or deprive the public of the ability to travel, but based on the evidence, including the size of the rock and the damage done to the vehicle, a rational fact finder could have determined the rock was a permanent obstruction placed on a section line. State v. Bear, 2015 ND 36, 859 N.W.2d 595, 2015 N.D. LEXIS 30 (N.D. 2015).

Prosecution.

State did not consent to a compromise or feel compromising was the appropriate method to resolve the matter because defendant's placement of the rock on a section line violated state law, and his actions led to an accident which damaged a state vehicle; because pursuing a criminal prosecution of a violation of the statute is within the bounds of the law, it was within the prosecutor's broad discretion to enforce the statute and criminally prosecute defendant. State v. Bear, 2015 ND 36, 859 N.W.2d 595, 2015 N.D. LEXIS 30 (N.D. 2015).

Removal of Home.

A board of county commissioners had no immediate legal duty to move the home of landowners which extended at least seven feet into the public right of way along an open section line where the record did not reflect that the partial encroachment completely blocked the public from using this section. Burleigh County Water Resource Dist. v. Burleigh County, 510 N.W.2d 624, 1994 N.D. LEXIS 2 (N.D. 1994).

Section Lines Not Opened.

This section did not prohibit a fence built on a section line where no road had ever been constructed along the section line and it had never been used for travel. De Lair v. County of La Moure, 326 N.W.2d 55, 1982 N.D. LEXIS 333 (N.D. 1982).

Law Reviews.

The Public Trust Doctrine in North Dakota, 54 N.D. L. Rev. 565 (1978).

24-06-29. Removal of permanent obstructions — Removal of obstructions and traffic safety hazards — Cost.

  1. If a person places or causes to be placed a permanent obstruction within the vertical plane of thirty-three feet [10.06 meters] of any section line or within the right of way of any highway, the board of county commissioners or board of township supervisors, as appropriate, when a public highway is opened, shall notify the owners of adjacent property to remove the permanent obstruction. Written notice by registered mail to the record owner of the adjacent property mailed to the owner’s last-known address and to any other persons in possession of the property constitutes valid notice. If the owners fail to remove the permanent obstruction within thirty days after the notice is mailed, the board of county commissioners or the board of township supervisors, as appropriate, shall remove the permanent obstruction. The cost of removal must be entered the same as taxes against the adjacent property and paid in the same manner as taxes.
  2. If a person places or causes to be placed an obstruction or traffic safety hazard within the vertical plane of thirty-three feet [10.06 meters] of any section line or within the right of way of any highway road surface, the board of county commissioners or board of township supervisors, as appropriate, shall issue a written order to the person who caused the obstruction or traffic safety hazard to be placed there to remove the obstruction or traffic safety hazard. If the person notified fails to remove the obstruction or traffic safety hazard as soon as practical after the notice is received, the board of county commissioners or board of township supervisors, as appropriate, shall remove the obstruction or traffic safety hazard. The person responsible for placement of the obstruction or traffic safety hazard is responsible and may be billed for any costs incurred by the county or township for removal of the obstruction or traffic safety hazard.
  3. Subsection 2 does not apply to railroad facilities.

Source:

S.L. 1919, ch. 142, § 1; 1925 Supp., § 2037a1; R.C. 1943, § 24-0629; S.L. 1993, ch. 277, § 2; 2009, ch. 237, § 2; 2011, ch. 201, § 2.

24-06-30. Removal of fences — Notice — Cost.

When a public highway is opened along any section line, the board of county commissioners or the board of township supervisors, as the case may be, shall notify the owner of adjacent property to remove any fences not constructed pursuant to subsection 2 of section 24-06-28 within thirty-three feet [10.06 meters] of the section line in the manner provided for notice to remove stones, trees, or rubbish. If the owner of adjacent property fails to remove the fences within thirty days after the notice is given, the board of county commissioners or the board of township supervisors, as the case may be, shall remove the fences. The cost of removal must be entered the same as taxes against the adjacent property and paid in the same manner as taxes.

Source:

S.L. 1919, ch. 142, § 2; 1925 Supp., § 2037a2; R.C. 1943, § 24-0630; S.L. 1955, ch. 182, § 1; 1957 Supp., § 24-0630; S.L. 1975, ch. 242, § 2; 1977, ch. 234, § 2; 1993, ch. 277, § 3.

Cross-References.

Removal of fences, see § 24-07-19.

Notes to Decisions

Availability of Section Lines for Travel.

Congressional section lines outside the limits of incorporated cities, unless closed by statutory proceedings, are open for public travel without the necessity of any prior action by a board of township supervisors or county commissioners. Small v. Burleigh County, 225 N.W.2d 295, 1974 N.D. LEXIS 151 (N.D. 1974).

24-06-31. Obstructions in highway.

Each overseer of highways having personal knowledge, or on being notified in writing, of any obstruction in the highway or public street in the overseer’s district immediately shall remove or cause any such obstruction to be removed. The overseer’s district may seek recovery of costs incurred for the removal of any obstruction from the individual who is responsible for causing or placing any obstruction in the highway or public street. If the individual responsible is an adjacent landowner, the removal cost may become a part of the taxes to be levied against the landowner for the ensuing year to be collected in the same manner as other real estate taxes are collected.

Source:

Pol. C. 1877, ch. 29, § 71; R.C. 1895, § 1110; R.C. 1899, § 1110; R.C. 1905, § 1400; C.L. 1913, § 1973; R.C. 1943, § 24-0631; 2017, ch. 205, § 1, effective August 1, 2017.

Cross-References.

Obstructions prohibited, see § 24-12-02.

Notes to Decisions

Duty.

District court erred in ruling that a township had no duty of care with regard to a section line because parents alleged that a property owner told two township board members that the section line was in a hazardous or dangerous condition and such allegation was sufficient to raise a genuine issue of material fact as to whether or not the township had actual knowledge of the condition. Kappenman v. Klipfel, 2009 ND 89, 765 N.W.2d 716, 2009 N.D. LEXIS 96 (N.D. 2009).

24-06-32. Penalty for refusal to serve as road overseer. [Repealed]

Repealed by S.L. 1949, ch. 193, § 1.

24-06-33. Method of construction of highway ditches. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

24-06-34. Notice to water resource districts.

Whenever a county or township plans to construct or reconstruct a bridge, install or modify a culvert, or construct or reconstruct a drain in connection with a roadway or railway, the county or township shall provide notice in any way to the water resource board of the water resource district in which is located the bridge, culvert, or drain. This notice must be given at least thirty days prior to the date construction or reconstruction is to begin. The water resource board may submit comments concerning the construction or reconstruction to the appropriate officials of the county or township. This section does not apply in times of emergency, unexpected events, or acts of God.

Source:

S.L. 1983, ch. 307, § 1.

Notes to Decisions

Authority to Construct Culverts.

Township, not the county water board, had the authority to decide whether to install a culvert under a township road. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, 583 N.W.2d 817, 1998 N.D. LEXIS 183 (N.D. 1998), limited, Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

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.

Source:

S.L. 1897, ch. 112, § 1; R.C. 1899, § 1050; R.C. 1905, § 1346; C.L. 1913, § 1918; R.C. 1943, § 24-0701.

Cross-References.

Adverse possession: real estate title by occupancy and accession, see N.D.C.C. ch. 47-06.

Title to highway, see § 47-10-10.

Notes to Decisions

Adverse Use.

Mere use of land by public as a highway is insufficient of itself to establish a highway by prescription or long use, it not constituting adverse use of the property by the public. Berger v. Berger, 88 N.W.2d 98, 1958 N.D. LEXIS 64 (N.D. 1958).

Although a railroad right-of-way for an operating railroad line was a public highway under former N.D. Const. art. XII, § 137 (repealed, 2006), the Supreme Court of North Dakota concluded that provision and case law did not preclude an action for an easement by prescription for a public road across a railroad’s spur line under N.D.C.C. § 24-07-01. Home of Econ. v. Burlington N. Santa Fe R.R., 2007 ND 127, 736 N.W.2d 780, 2007 N.D. LEXIS 129 (N.D. 2007).

Application.

In a case where a county was seeking a formal judicial declaration of a public road under the specific language of N.D.C.C. § 24-07-01, an owner’s reliance upon N.D.C.C. § 28-01-04 was misplaced because the action was not one seeking the recovery of real property or the possession thereof. A specific statute controlled over the general one. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Basic Requirements.

The basic requirements for establishing a road by prescription are: 1) general, continuous, uninterrupted, and adverse use of the road; 2) by the public under a claim of right; 3) for a period equal to that for the limitation of real actions, i.e., twenty years. Hartlieb v. Sawyer Township Bd., 366 N.W.2d 486, 1985 N.D. LEXIS 310 (N.D. 1985); Nagel v. Emmons County N.D. Water Resource Dist., 474 N.W.2d 46, 1991 N.D. LEXIS 134 (N.D. 1991).

Blended Proceedings.

Landowners’ rights were fully protected by blended eminent domain and road closure proceedings, and the district court did not err in its legal analysis of the effect of the road closure proceeding and its determination of the public necessity for the taking of the property. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Bridge Construction.

A city may construct a bridge only on a highway legally established. Manning v. City of Devils Lake, 13 N.D. 47, 99 N.W. 51, 65 L.R.A. 187, 112 Am. St. Rep. 652 (1904), decided prior to the enactment of § 40-60-01 N.D.C.C.

Burden of Proof.

The party asserting the establishment of a public road or highway by prescriptive use has the burden of proving the same by clear, convincing, and satisfactory evidence. Backhaus v. Renschler, 304 N.W.2d 87, 1981 N.D. LEXIS 282 (N.D. 1981).

Criminal Obstruction of Public Road.

Defendant’s conviction for obstructing a public road, section 24-12-02, was reversed, where alleged road in question was allegedly acquired by prescription, was not declared to be a public road until date of conviction at criminal trial, and there was a legitimate dispute as to whether or not necessary elements had been met to establish a public road by prescription; proper procedure to determine if a public road has been established by prescription is a civil action. State v. Meyer, 361 N.W.2d 221, 1985 N.D. LEXIS 240 (N.D. 1985).

Date of Grant.

A congressional grant of the right of way for highways over public lands which was made in 1866 was in praesenti. Walcott Township v. Skauge, 6 N.D. 382, 71 N.W. 544, 1897 N.D. LEXIS 16 (N.D. 1897).

Elements of Prescription.

To establish a highway by prescription there must have been general, continuous, uninterrupted, and adverse use by the public under a claim of right, for a period of twenty years. Berger v. Berger, 88 N.W.2d 98, 1958 N.D. LEXIS 64 (N.D. 1958).

County obtained a prescriptive easement and a road was declared to be public in nature because the requirements of N.D.C.C. § 24-07-01 were satisfied; the prescriptive period commenced when the county constructed the road in the early 1950s, and the construction and maintenance of the road supported the finding of adverse use, but a remand was necessary to determine a description of the prescriptive road. There was evidence in the record to support the trial court’s findings about the temporary use of gates and their effect on adverse public use; however, an owner was not entitled to damages for inverse condemnation because the road became a public road before she obtained an interest in the land. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Estoppel.

Where owner of land recognized the existence of a trail across his land and, upon survey to construct a road along such trail, the course of the road was moved at his request, he cannot later assert that the trail was not continuously used or that it did not follow a definite course. Berger v. Morton County, 57 N.D. 305, 221 N.W. 270, 1928 N.D. LEXIS 128 (N.D. 1928).

Extent of Easement.

Where highway was established by prescription, the public acquired only an easement of passage, and all other interest in the property remained in the owner of the fee. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Extinguishment.

Where highway which had been acquired by prescription was relocated within city limits, nonuse for a period equal to that necessary to acquire the easement would extinguish it. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

A county tax deed to a parcel of property does not extinguish a public roadway established by prescription on an adjoining parcel of property; such road is established by the public for the public’s use, and the circumstances relating to the title to adjoining property have no effect on this use. Fears v. Y.J. Land Corp., 539 N.W.2d 306, 1995 N.D. LEXIS 191 (N.D. 1995).

“Hostile Use” Defined.

Hostile use of road over private land necessary to establish prescriptive right means a use inconsistent with owner’s right to exclusive use, does not imply enmity or ill will, and is consistent with friendly relations between user of road and landowner. Berger v. Berger, 88 N.W.2d 98, 1958 N.D. LEXIS 64 (N.D. 1958).

Necessity.

A jury’s role in both an eminent domain and a road closure proceeding is limited to a determination of a landowner’s damages; therefore, it was not error for landowners to be prevented from presenting evidence to the jury on the necessity for a road closure as the issue of necessity for a particular taking ultimately remains a question for a court to review. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Obstructions.

Erection of gate or gates across road evidences an intention on part of owner to assert ownership and possession of land over which the road runs. Berger v. Berger, 88 N.W.2d 98, 1958 N.D. LEXIS 64 (N.D. 1958).

The existence of a gate across a road is indicative that use of the road by others is permissive rather than adverse. Mohr v. Tescher, 313 N.W.2d 737, 1981 N.D. LEXIS 357 (N.D. 1981).

Opening Public Highway.

A public highway need not be opened by officials, but the people may open it themselves by taking possession and using it. Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913, 1932 N.D. LEXIS 168 (N.D. 1932).

Permissive Use.

Where no evidence of hostile use of road which was used only for going upon land and not to travel across it was shown to exist before defendant’s father acquired land and his use of road thereafter was permissive, no road was established by prescription. Trautman v. Ahlert, 147 N.W.2d 407, 1966 N.D. LEXIS 153 (N.D. 1966).

Whether or not use has been permissible is an essential element in establishing a road by prescription. Hartlieb v. Sawyer Township Bd., 366 N.W.2d 486, 1985 N.D. LEXIS 310 (N.D. 1985).

Where a neighboring property owner used a railroad company’s grade crossing to access its land until the railroad company closed the crossing grade and the property owner filed suit to compel the reopening of the grade by claiming that a public road by prescription had been established, the trial court did not err in rendering judgment in favor of the railroad company because the property owner’s use of the crossing grade was a use permitted by the railroad company; because a permissive use was not one hostile to the rights of the owner of the land, it could not ripen into title through prescription. Home of Econ. v. Burlington N. Santa Fe R.R., 2010 ND 49, 780 N.W.2d 429, 2010 N.D. LEXIS 50 (N.D. 2010).

There were genuine issues of material fact as to whether a public road by prescription existed because an owner alleged that the road was used with the permission of the landowners, which raised an issue of whether the use of the road was permissive, rather than adverse. Wagner v. Crossland Constr. Co., 2013 ND 219, 2013 N.D. LEXIS 223 (N.D. 2013).

Trespass.

Defendant was charged with criminal trespass and criminal mischief under N.D.C.C. §§ 12.1-22-03, 12.1-21-05, based on allegations that he drove his vehicle on his ex-wife’s property and damaged flax planted over the passable portion of the section line. The district court erred in denying defendant’s motion to dismiss and motion for judgment of acquittal, because there existed a legitimate dispute as to whether the road upon which he was alleged to have trespassed became a public road by prescription under N.D.C.C. § 24-07-01. State v. Herzig, 2012 ND 247, 825 N.W.2d 235, 2012 N.D. LEXIS 256 (N.D. 2012).

Twenty-Year Period.

Where quarter line on farm was traveled as a road from 1871 to 1896, there was a public highway along quarter line at the end of 1891. Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913, 1932 N.D. LEXIS 168 (N.D. 1932).

Width of Highway.

If the owner of land permits a public highway to be established by prescription, it is assumed he intends road of statutory width, and the erection of a fence cannot affect width of road acquired before the fence was built. Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913 (1932), explained, Small v. Burleigh County, 225 N.W.2d 295 (N.D. 1974), decided prior to the enactment of N.D.C.C. § 24-01-01.1.

The width of a prescriptive public road established in the absence of a law specifying its width is determined from the extent of the actual use of the property for roadway purposes over the prescriptive period; such width is not limited to the actual traveled surface areas of the roadway, but includes adjacent land such as ditches, shoulders, and slopes that are reasonably necessary for the prescription to be maintained as a public road. Keidel v. Rask, 290 N.W.2d 255, 1980 N.D. LEXIS 201 (N.D. 1980).

The width of a prescriptive public road includes the portion of the road actually traveled as well as the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion. Keidel v. Rask, 304 N.W.2d 402, 1981 N.D. LEXIS 280 (N.D. 1981).

DECISIONS UNDER PRIOR LAW

Claim by Prescription.

To have valid claim of highway by prescription, adverse use must have dated from a period of twenty years prior to January 1, 1896, or subsequent to March 29, 1897. Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082, 1912 N.D. LEXIS 104 (N.D. 1912).

Defectively Laid Road.

S.L. 1897, ch. 112, § 1 was applicable retroactively only to roads which had been laid out by proper authorities, but in a defective manner. Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082, 1912 N.D. LEXIS 104 (N.D. 1912).

Establishing a Highway.

The statutory right of establishing a highway did not exist in 1922, although it had existed prior to 1897. Hillsboro Nat'l Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657, 1922 N.D. LEXIS 160 (N.D. 1922).

Subsequent to S.L. 1897, ch. 112, the common-law rule of establishing a highway by prescription was in effect. Berger v. Morton County, 57 N.D. 305, 221 N.W. 270, 1928 N.D. LEXIS 128 (N.D. 1928).

Collateral References.

Adverse possession: width and boundaries of public highway acquired by prescription or adverse use, 76 A.L.R.2d 535.

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.

Source:

S.L. 1897, ch. 112, § 2; R.C. 1899, § 1051; R.C. 1905, § 1347; C.L. 1913, § 1919; R.C. 1943, § 24-0702.

Notes to Decisions

Public Highway Established.

In plaintiffs’ action against defendants claiming that defendants improperly denied them access to their farmland, the trial court did not err in finding a road running through defendants’ property to be a public highway because it was established by the county board of commissioners; there was no evidence in the record that the road had been formally discontinued by the county board of commissioners. Howard v. Trotter, 2012 ND 258, 825 N.W.2d 857, 2012 N.D. LEXIS 264 (N.D. 2012).

Section Line Not Road.

Private crossing built to give access from a slaughterhouse to the highway was not of itself a highway for purposes of statute requiring bell or whistle to be sounded when crossing highway, although located on a section line which could be opened as a road by board of supervisors. Reynolds v. Great Northern R. Co., 69 F. 808, 1895 U.S. App. LEXIS 2436 (8th Cir. N.D. 1895).

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 40-50.1-17 or recorded prior to July 1, 1987, under former chapter 40-50, the congressional 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.

Source:

S.L. 1897, ch. 112, § 3; 1899, ch. 97, § 1; R.C. 1899, § 1052; R.C. 1905, § 1348; C.L. 1913, § 1920; R.C. 1943, § 24-0703; S.L. 1965, ch. 201, § 1; 1967, ch. 210, § 1; 1977, ch. 234, § 3; 1977, ch. 235, § 1; 1987, ch. 501, § 18; 1997, ch. 240, § 1.

Cross-References.

Obstruction of section lines, see §§ 24-06-28, 24-06-29.

Notes to Decisions

Date of Easement.

A congressional grant of the right of way for highways over public lands which was made in 1866 was in praesenti. Walcott Township v. Skauge, 6 N.D. 382, 71 N.W. 544, 1897 N.D. LEXIS 16 (N.D. 1897).

Ejectment.

Owner of fee over which street has been dedicated by statute making section lines public roads may maintain ejectment against owner of buildings erected on the public street. Northern Pac. Ry. v. Lake, 10 N.D. 541, 88 N.W. 461 (1901), decided prior to the adoption of North Dakota Constitution, art. 1, § 16; distinguished, Donovan v. Allert, 11 N.D. 289, 91 N.W. 441, 1902 N.D. LEXIS 131 (N.D. 1902).

Fee Ownership.

Where person owns land on both sides of the section line on which is located a highway, he owns the fee title and the public acquires merely an easement of passage. Rutten v. Wood, 79 N.D. 436, 57 N.W.2d 112, 1953 N.D. LEXIS 53 (N.D. 1953).

The owner of the adjacent lands is the owner of the fee in the roads declared by this section, subject to the public easement. Lalim v. Williams County, 105 N.W.2d 339, 1960 N.D. LEXIS 89 (N.D. 1960).

Grade Construction.

Although construction of public highway grade may be performed by private individual on contract basis, work must be under direction of district overseer of highways where construction of grade on section line in unorganized township is involved; private individual who performs work becomes agent of county and county remains subject to all statutory provisions applicable to improvement as if it were being constructed by county. Zueger v. Boehm, 164 N.W.2d 901, 1969 N.D. LEXIS 104 (N.D. 1969).

Highways.

Section lines are often referred to as highways. State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

Improved Roads.

This section does not impose a duty on a county or township to maintain an improved road on a section line, nor can a county or township be held legally liable for injuries to persons using a portion of a designated public road which the county or township has not undertaken to improve. De Lair v. County of La Moure, 326 N.W.2d 55, 1982 N.D. LEXIS 333 (N.D. 1982).

Indian Reservations.

When former Indian reservations of state were thrown open to settlement, township supervisors were entitled to open a highway along the section lines, without compensating the owners of the land for right of way occupied and taken. Faxon v. Lallie Civil Township, 36 N.D. 634, 163 N.W. 531, 1917 N.D. LEXIS 212 (N.D. 1917), writ of error dismissed, 250 U.S. 634, 39 S. Ct. 491, 63 L. Ed. 1182, 1919 U.S. LEXIS 1790 (U.S. 1919).

Legislative Surrender.

Highways established on the section lines had not been surrendered by any subsequent legislation. Huffman v. Board of Supervisors, 47 N.D. 217, 182 N.W. 459, 1921 N.D. LEXIS 111 (N.D. 1921).

Order of Board.

Order of board of supervisors attempting to locate and establish a highway along the section line was unnecessary unless it became necessary to deviate from the section line. Huffman v. Board of Supervisors, 47 N.D. 217, 182 N.W. 459, 1921 N.D. LEXIS 111 (N.D. 1921).

In plaintiffs’ action against defendants claiming that defendants improperly denied them access to their farmland, the trial court did not err in finding a road running through defendants’ property to be a public highway because it was established by the county board of commissioners; there was no evidence in the record that the road had been formally discontinued by the county board of commissioners. Howard v. Trotter, 2012 ND 258, 825 N.W.2d 857, 2012 N.D. LEXIS 264 (N.D. 2012).

Right of Way over Section Lines.

Public easement for right of way over congressional section lines was granted by Act of Congress in 1866 and accepted by the Session Laws of the Dakota Territory in 1871, and the right of the public to travel over land within two rods on either side of a section line has never been surrendered. Small v. Burleigh County, 225 N.W.2d 295, 1974 N.D. LEXIS 151 (N.D. 1974).

Because a section line was a public road under N.D.C.C. § 24-07-03, the recreational use immunity statutes, N.D.C.C. ch. 53-08, did not apply. Kappenman v. Klipfel, 2009 ND 89, 765 N.W.2d 716, 2009 N.D. LEXIS 96 (N.D. 2009).

Section Line Not Outside Incorporated City Limits.

Section line is not a public road pursuant to this section where the section line is not outside the limits of an incorporated city. De Lair v. County of La Moure, 326 N.W.2d 55, 1982 N.D. LEXIS 333 (N.D. 1982).

Section 24-12-02(2).

A section line is a “public highway or right of way” under section 24-12-02(2). State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

Survey.

A section line is a public road, and may be opened upon compliance with the statutes without a survey, except where necessary because of natural obstacles, by the officials having jurisdiction thereover. Hillsboro Nat'l Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657, 1922 N.D. LEXIS 160 (N.D. 1922).

Width.

Roads on section lines are four rods wide when no greater width is specified. Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913 (1932), explained, Small v. Burleigh County, 225 N.W.2d 295 (N.D. 1974), decided prior to the enactment of N.D.C.C. § 24-01-01.1.

Law Reviews.

The Public Trust Doctrine in North Dakota, 54 N.D. L. Rev. 565 (1978).

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.

Source:

S.L. 2007, ch. 254, § 1.

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.

Source:

S.L. 1897, ch. 112, § 4; R.C. 1899, § 1053; R.C. 1905, § 1349; S.L. 1913, ch. 88, § 1; C.L. 1913, § 1921; R.C. 1943, § 24-0704; S.L. 1967, ch. 323, § 80.

Cross-References.

Powers and duties of board of township supervisors, see § 58-06-01.

Powers of board of county commissioners, see § 11-11-14.

Notes to Decisions

Board of County Commissioners.

The board of county commissioners has jurisdiction to receive and act upon a petition to lay out or alter a highway. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

The board of county commissioners has no power to control, supervise, or grant a right of way to a public service corporation over a state highway within the county. Morton County v. Hughes Elec. Co., 53 N.D. 742, 208 N.W. 108, 1926 N.D. LEXIS 29 (N.D. 1926).

In plaintiffs’ action against defendants claiming that defendants improperly denied them access to their farmland, the trial court did not err in finding a road running through defendants’ property to be a public highway because it was established by the county board of commissioners; there was no evidence in the record that the road had been formally discontinued by the county board of commissioners. Howard v. Trotter, 2012 ND 258, 825 N.W.2d 857, 2012 N.D. LEXIS 264 (N.D. 2012).

Board of Township Supervisors.

Board of supervisors was empowered to open a highway along section lines of former state Indian reservations. Faxon v. Lallie Civil Township, 36 N.D. 634, 163 N.W. 531, 1917 N.D. LEXIS 212 (N.D. 1917), writ of error dismissed, 250 U.S. 634, 39 S. Ct. 491, 63 L. Ed. 1182, 1919 U.S. LEXIS 1790 (U.S. 1919).

The board of township supervisors of an organized township has jurisdiction to receive and act upon a petition to vacate a highway situated within the township. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

City’s Governing Body.

Governing body of city has exclusive power to vacate a public way located within its limits. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Collateral Attack.

Collateral attack was not allowed upon a record of the county board which, upon its face showed all the jurisdictional steps to have been taken. Ekwortzell v. Blue Grass Township, 28 N.D. 20, 147 N.W. 726, 1914 N.D. LEXIS 93 (N.D. 1914).

Continuous Highway.

Fact that highway situated within a township forms portion of continuous highway originating and terminating at points outside of township boundaries does not divest board of supervisors of jurisdiction over portion of highway actually situated within township boundaries. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

Section Lines Open for Public Travel.

Congressional section lines outside the limits of incorporated cities, unless closed by statutory proceedings are open for public travel without the necessity of any prior action by a board of township supervisors or county commissioners. Small v. Burleigh County, 225 N.W.2d 295, 1974 N.D. LEXIS 151 (N.D. 1974).

Township.

A township has the right to take land for road purposes. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

District court did not err in granting a township's motion to dismiss because a property owner's appeal was untimely; the owner did not file his notice of appeal thirty days after the township filed with the township clerk both its order to alter highway and statement of damages, which made a determination and stated the amount to be awarded to the owner. Owego Twp. v. Pfingsten, 2018 ND 68, 908 N.W.2d 123, 2018 N.D. LEXIS 70 (N.D. 2018).

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.

Source:

S.L. 1897, ch. 112, § 5; 1889, ch. 97, § 1; R.C. 1899, § 1054; R.C. 1905, § 1350; S.L. 1911, ch. 148, § 1; C.L. 1913, § 1923; S.L. 1915, ch. 105, § 1; 1925 Supp., § 1923; R.C. 1943, § 24-0705; S.L. 1985, ch. 235, § 58.

Cross-References.

Closing of roads for surface coal mining operations, see §§ 38-01-07.1, 38-01-07.2.

Partition, setting aside of streets and highways prior to sale or, see § 32-16-13.

State highway, vacation, see § 24-01-28.

Streets and alleys, opening and vacating of, see N.D.C.C. ch. 40-39.

Notes to Decisions

Sufficient Description.

A description whereby a competent surveyor can locate a road is deemed sufficient. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899, 1897 N.D. LEXIS 38 (N.D. 1897).

If the description was such as to make the route clear to any reasonable intelligent man, it was sufficient. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

A petition to lay out a highway must be so definite in its description as to enable a survey to be made or to locate the highway. Kleppe v. Odin Tp., 40 N.D. 595, 169 N.W. 313, 1918 N.D. LEXIS 109 (N.D. 1918).

Township Supervisors.

The board of township supervisors of an organized township has jurisdiction to receive and act upon a petition to vacate a highway situated within the township. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

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.

Source:

S.L. 1911, ch. 148, § 1; C.L. 1913, § 1923; S.L. 1915, ch. 105, § 1; 1925 Supp., § 1923; R.C. 1943, § 24-0706; S.L. 2003, ch. 223, § 1.

Notes to Decisions

Adequate Description.

A description whereby a competent surveyor can locate a road is deemed sufficient. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899, 1897 N.D. LEXIS 38 (N.D. 1897).

Qualifying Tract of Land.

Where there was nothing in the record establishing size of tracts in original subdivision, judicial notice was taken that patents to public land were generally for 160 acres, so that forty-acre tract to which there was no highway access qualified under this section. Hector v. Board of Township Supervisors, 177 N.W.2d 547, 1970 N.D. LEXIS 117 (N.D. 1970).

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.

Source:

S.L. 1915, ch. 105, § 1; 1925 Supp., § 1923; R.C. 1943, § 24-0707.

Cross-References.

Acts or proceedings of board of county commissioners or state highway commission irregularly done to acquire land for state highways validated, see § 1-06-02.

Notes to Decisions

Adequate Description.

A description whereby a competent surveyor can locate a road is deemed sufficient. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899, 1897 N.D. LEXIS 38 (N.D. 1897).

Order Governs.

Survey made upon order of county commissioners which specified a certain route could not alter the route, and the order was the governing document. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

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.

Source:

S.L. 1899, ch. 97, § 1; R.C. 1899, § 1054; R.C. 1905, § 1350; S.L. 1911, ch. 148, § 1; C.L. 1913, § 1923; S.L. 1915, ch. 105, § 1; 1925 Supp., § 1923; R.C. 1943, § 24-0708.

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.

Source:

S.L. 1897, ch. 112, § 6; 1899, ch. 97, § 1; R.C. 1899, § 1055; R.C. 1905, § 1351; C.L. 1913, § 1924; R.C. 1943, § 24-0709.

Notes to Decisions

Lack of Notice.

Where appellant did not object to irregularity of proceedings through failure to give the prescribed statutory notice, such objection could not be raised for the first time on appeal. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

Posting Before Action.

The term “any action” referred to action by the board of county commissioners upon a petition for the establishment of a highway, and the posting of notice before action was taken by the board did not nullify the proceedings. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

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.

Source:

S.L. 1897, ch. 112, § 7; 1899, ch. 97, § 1; R.C. 1899, § 1056; R.C. 1905, § 1352; S.L. 1911, ch. 150, § 1; C.L. 1913, § 1925; R.C. 1943, § 24-0710.

Notes to Decisions

Posting Petitions.

Under C.L. 1913, § 1925, posting of petitions was sufficient when posted more than twenty days before meeting and hearing on petition, although not posted more twenty days before posting and service of notices of meeting. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

Collateral References.

Inclusion or exclusion of first and last days in computing time for giving notice of hearing for location of public highway, which notice must be given a certain number of days before a known future date, 98 A.L.R.2d 1331.

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.

Source:

S.L. 1911, ch. 150, § 1; C.L. 1913, § 1925; R.C. 1943, § 24-0711; S.L. 1985, ch. 235, § 59.

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.

Source:

S.L. 1911, ch. 150, § 1; C.L. 1913, § 1925; R.C. 1943, § 24-0712.

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.

Source:

S.L. 1897, ch. 112, § 8; 1899, ch. 97, § 1; R.C. 1899, § 1057; R.C. 1905, § 1353; S.L. 1911, ch. 150, § 2; C.L. 1913, § 1926; R.C. 1943, § 24-0713; S.L. 1985, ch. 235, § 60.

Notes to Decisions

Appeal.

Any person has a right of appeal to district court from the determination of the board of county commissioners upon a petition to lay out or alter a highway, and, upon appeal, a trial de novo may be had before the district court and jury. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

Hearing.

The only prerequisite to right of board to proceed to hearing is satisfaction on their part that the notices required have been duly served. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

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.

Source:

S.L. 1897, ch. 112, § 9; 1899, ch. 97, § 1; R.C. 1899, § 1058; R.C. 1905, § 1354; C.L. 1913, § 1927; R.C. 1943, § 24-0714.

Cross-References.

Ownership to center of road presumed, see § 47-01-16.

Notes to Decisions

Acquiescence of Landowner.

A property owner does not waive the right to a determination of damages by the board of county commissioners merely by acquiescence in the proceedings. Rothecker v. Wolhowe, 39 N.D. 96, 166 N.W. 515, 1918 N.D. LEXIS 6 (N.D. 1918).

Failure to File Order.

The phrase “deemed to have decided against said application” refers to a disputable presumption, and its main purpose was fixing of time in which either party might appeal. Kleppe v. Odin Tp., 40 N.D. 595, 169 N.W. 313, 1918 N.D. LEXIS 109 (N.D. 1918).

Statement of Damages.

District court did not err in granting a township's motion to dismiss because a property owner's appeal was untimely since the owner did not file his notice of appeal thirty days after the township filed with the township clerk both its order to alter highway and statement of damages, which stated the amount to be awarded to the owner; thee township's process in issuing its statement of damages was consistent with the requirements of the statute. Owego Twp. v. Pfingsten, 2018 ND 68, 908 N.W.2d 123, 2018 N.D. LEXIS 70 (N.D. 2018).

Sufficient Description.

If the proceedings under a statute to create a highway are so definite and certain that a competent surveyor could locate the road, it is sufficient. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899, 1897 N.D. LEXIS 38 (N.D. 1897).

A petition to lay out a highway must be so definite in its description as to enable a survey to be made or to locate the highway. Kleppe v. Odin Tp., 40 N.D. 595, 169 N.W. 313, 1918 N.D. LEXIS 109 (N.D. 1918).

Surveyor’s Notes.

The plat and notes of the surveyor were only presumptively correct and if they did not describe the highway as originally established, the presumption was overcome. Dunstan v. Jamestown, 7 N.D. 1, 72 N.W. 899, 1897 N.D. LEXIS 38 (N.D. 1897).

Vacation.

Unless there has been a change in conditions since its establishment, a highway recently established should not be vacated. Miller v. Oakwood Tp., 9 N.D. 623, 84 N.W. 556 (1900).

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.

Source:

S.L. 1897, ch. 112, § 10; 1899, ch. 97, § 1; R.C. 1899, § 1059; R.C. 1905, § 1355; C.L. 1913, § 1928; R.C. 1943, § 24-0715.

Notes to Decisions

Failure to File.

Where landowner has acquiesced in use and improvement of trail across his land into a public highway, he cannot avail himself of fact that order of board was not filed with the county auditor. Kleppe v. Odin Tp., 40 N.D. 595, 169 N.W. 313, 1918 N.D. LEXIS 109 (N.D. 1918).

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.

Source:

S.L. 1897, ch. 112, § 11; 1899, ch. 97, § 1; R.C. 1899, § 1060; R.C. 1905, § 1356; C.L. 1913, § 1929; R.C. 1943, § 24-0716.

Cross-References.

Damages, amount of, as within scope of review upon appeal, see § 24-07-27.

Notes to Decisions

Farming of Land.

If presence of road damages landowner and interferes with his farming of the land, he may recover for this. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Grades and Improvements.

This section does not apply to the grading and improving of highways since the state is not laying out, changing the course of, or discontinuing a road. King v. Stark County, 66 N.D. 467, 266 N.W. 654, 1936 N.D. LEXIS 189, 1936 N.D. LEXIS 190 (N.D. 1936).

Laches.

Where property owner has stood by and allowed expensive improvements to be constructed upon his land, and the property to be taken for public use, his only remedy will be action for damages. Rothecker v. Wolhowe, 39 N.D. 96, 166 N.W. 515, 1918 N.D. LEXIS 6 (N.D. 1918).

Statement of Damages.

District court did not err in granting a township's motion to dismiss because a property owner's appeal was untimely since the owner did not file his notice of appeal thirty days after the township filed with the township clerk both its order to alter highway and statement of damages, which stated the amount to be awarded to the owner; because the parties did not agree on the damages resulting from the township's actions, the filing of the statement of damages complied with the statute. Owego Twp. v. Pfingsten, 2018 ND 68, 908 N.W.2d 123, 2018 N.D. LEXIS 70 (N.D. 2018).

Waiver of Damages.

Fact that one signed petition for highway which would run through his land was not in itself a waiver of his right to damages for the taking of his property. Rothecker v. Wolhowe, 39 N.D. 96, 166 N.W. 515, 1918 N.D. LEXIS 6 (N.D. 1918).

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.

Source:

S.L. 1897, ch. 112, § 12; R.C. 1899, § 1061; R.C. 1905, § 1357; C.L. 1913, § 1930; R.C. 1943, § 24-0717; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Railroad Grant.

Congressional Act of 1866 which granted right of way for highways over public lands not reserved for public use was not a taking of railroad’s property granted under Congressional Act of 1864, where railroad failed to file certified plat of definite location until 1873. Wenberg v. Gibbs Tp., 31 N.D. 46, 153 N.W. 440 (1915).

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.

Source:

S.L. 1897, ch. 112, § 13; 1899, ch. 97, § 1; R.C. 1899, § 1062; R.C. 1905, § 1358; C.L. 1913, § 1931; R.C. 1943, § 24-0718.

Notes to Decisions

One-Year Lapse.

In case no appeal is taken, after the lapse of one year, the order of the county commissioners in altering or discontinuing a highway becomes final. McLean County v. Rathjen, 41 N.D. 73, 169 N.W. 580, 1918 N.D. LEXIS 125 (N.D. 1918).

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.

Source:

S.L. 1897, ch. 112, § 14; 1899, ch. 97, § 1; R.C. 1899, § 1063; R.C. 1905, § 1359; C.L. 1913, § 1932; R.C. 1943, § 24-0719; S.L. 1977, ch. 234, § 4.

Cross-References.

Removal of fences upon opening of highway along section line, see § 24-06-30.

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.

Source:

S.L. 1897, ch. 112, § 15; R.C. 1899, § 1064; R.C. 1905, § 1360; C.L. 1913, § 1933; R.C. 1943, § 24-0720.

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.

Source:

S.L. 1897, ch. 112, § 16; R.C. 1899, § 1065; R.C. 1905, § 1361; C.L. 1913, § 1934; R.C. 1943, § 24-0721.

Cross-References.

Bridges over ditches or canals, duty of owner to construct and maintain, see § 61-14-09.

Bridges part of highway, see § 24-08-04.

Changing highway by railroad, see § 49-11-01.

Changing railroad crossing, see § 24-09-10.

Railroad crossings, construction, see § 49-11-06.

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.

Source:

S.L. 1897, ch. 112, §§ 17, 20; R.C. 1899, §§ 1066, 1069; R.C. 1905, §§ 1362, 1365; C.L. 1913, §§ 1935, 1938; R.C. 1943, § 24-0722; S.L. 1981, ch. 320, § 41; 1989, ch. 83, § 12; 1991, ch. 326, § 68.

Notes to Decisions

Constitutionality.

Provision in this section for judicial review is not unconstitutional delegation of legislative authority to courts, provided, however, that courts restrict themselves to review of issues of fact and not policy and do not substitute their judgment for that of township board unless board’s determination of fact is arbitrary, capricious, or unreasonable. Hector v. Board of Township Supervisors, 177 N.W.2d 547, 1970 N.D. LEXIS 117 (N.D. 1970).

Amount of Damages.

Where amount of damages claimed exceeds one hundred dollars, the appeal must be taken to the district court. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

Appeal Period.

Section 24-01-22, which permits vesting of title in state thirty days after award, is inconsistent with provision that appeal may be taken thirty days after filing of award, which may or may not be filed on day of award, and the former section must yield. Haman v. McHenry County, 72 N.W.2d 630, 1955 N.D. LEXIS 142 (N.D. 1955), overruled, MacDonald v. North Dakota Comm'n on Medical Competency, 492 N.W.2d 94, 1992 N.D. LEXIS 205 (N.D. 1992).

Application.

Statute was inapplicable because a property owner's land was taken by a township, not a county, and the township did not claim to take the property using quick take procedures but used N.D.C.C. ch. 24-07 to establish the need for and value of the land; the process and procedures in ch. 24-07 did not authorize the township to effectuate quick take condemnation or to take possession of the owner's property before actually paying him for the taking. Owego Twp. v. Pfingsten, 2018 ND 68, 908 N.W.2d 123, 2018 N.D. LEXIS 70 (N.D. 2018).

Collateral Attack.

Party who did not raise issue of validity of appeal and who participated in trial of appeal from award of township supervisors for highway land could not later collaterally attack such appeal. Hulett v. Snook, 57 N.D. 338, 221 N.W. 879, 1928 N.D. LEXIS 134 (N.D. 1928).

District Court.

An appeal as to the amount of damages and all matters referred to in the notice of appeal may be taken to district court from the board of county commissioners. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

Failure to Appeal.

Where commissioners relocated road and constructed bridge on landowner’s property, his failure to appeal, after one year lapse, caused relocation order to become final. McLean County v. Rathjen, 41 N.D. 73, 169 N.W. 580, 1918 N.D. LEXIS 125 (N.D. 1918).

District court did not err in granting a township's motion to dismiss because a property owner's appeal was untimely; the owner did not file his notice of appeal thirty days after the township filed with the township clerk both its order to alter highway and statement of damages, which made a determination and stated the amount to be awarded to the owner. Owego Twp. v. Pfingsten, 2018 ND 68, 908 N.W.2d 123, 2018 N.D. LEXIS 70 (N.D. 2018).

Recently Established Road.

A road which has only recently been established should not be vacated unless new facts have arisen rendering road unnecessary. Miller v. Oakwood Tp., 9 N.D. 623, 84 N.W. 556 (1900).

Route and Damages.

An appeal as to the route to be taken and the damages to be awarded may be taken from the determination by the board of county commissioners. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

Trial De Novo.

Any person has a right to appeal to district court from the determination of the board of county commissioners upon a petition to lay out or alter a highway and, upon appeal, a trial de novo may be had before the district court and jury. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

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.

Source:

S.L. 1897, ch. 112, §§ 18, 20; R.C. 1899, §§ 1067, 1069; R.C. 1905, §§ 1363, 1365; C.L. 1913, §§ 1936, 1938; R.C. 1943, § 24-0723.

Notes to Decisions

Defects.

Failure to indemnify state highway commissioner in the first instance when undertaking has been filed that corresponds to statutory requirements does not render undertaking void. Haman v. McHenry County, 72 N.W.2d 630, 1955 N.D. LEXIS 142 (N.D. 1955), overruled, MacDonald v. North Dakota Comm'n on Medical Competency, 492 N.W.2d 94, 1992 N.D. LEXIS 205 (N.D. 1992).

Jury Trial.

If the court determines that there is necessity for the taking, then issue of compensation must be submitted to a jury. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.

Scope of Appeal.

Appeal lies from determination of commissioners, both as to route to be taken and damages to be awarded. Semerad v. Dunn County, 35 N.D. 437, 160 N.W. 855, 1916 N.D. LEXIS 176 (N.D. 1916).

Appealing party may challenge not only the amount of preliminary damages awarded, but also the necessity for the taking. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.; distinguished, State ex rel. Northern States Power Co. v. Teigen, 80 N.W.2d 110, 1956 N.D. LEXIS 165 (N.D. 1956).

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.

Source:

S.L. 1897, ch. 112, §§ 18, 20; R.C. 1899, §§ 1067, 1069; R.C. 1905, §§ 1363, 1365; C.L. 1913, §§ 1936, 1938; R.C. 1943, § 24-0724; S.L. 1981, ch. 320, § 42; 1991, ch. 326, § 69.

Notes to Decisions

Failure to Approve.

Failure of district court judge or county auditor to approve undertaking for costs is a nonjurisdictional omission which may be supplied with permission of court granted upon appellant’s application. Haman v. McHenry County, 72 N.W.2d 630, 1955 N.D. LEXIS 142 (N.D. 1955), overruled, MacDonald v. North Dakota Comm'n on Medical Competency, 492 N.W.2d 94, 1992 N.D. LEXIS 205 (N.D. 1992).

24-07-25. Trial in county court. [Repealed]

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.

Source:

S.L. 1897, ch. 112, § 20; R.C. 1899, § 1069; R.C. 1905, § 1365; C.L. 1913, § 1938; R.C. 1943, § 24-0726.

Notes to Decisions

Jury Trial.

Issue of compensation for private property taken or damaged for a public use must be submitted to a jury, unless jury is waived. Kessler v. Thompson, 75 N.W.2d 172 (N.D. 1956), decided prior to the enactment of Art. I, § 16 of the N.D. Const.

Trial De Novo.

Appeal from determination of board results in a trial de novo of the issues before court and jury. Morton County v. Forester, 40 N.D. 281, 168 N.W. 787, 1918 N.D. LEXIS 87 (N.D. 1918).

Waiver.

Where appeal has been perfected and no attack made on jurisdiction of board of commissioners, such attack will be deemed to have been waived. Mercer County v. Sailer, 47 N.D. 203, 181 N.W. 885, 1921 N.D. LEXIS 100 (N.D. 1921).

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.

Source:

S.L. 1897, ch. 112, § 20; R.C. 1899, § 1069; R.C. 1905, § 1365; C.L. 1913, § 1938; R.C. 1943, § 24-0727.

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.

Source:

S.L. 1897, ch. 112, § 19; R.C. 1899, § 1068; R.C. 1905, § 1364; C.L. 1913, § 1937; R.C. 1943, § 24-0728; S.L. 1981, ch. 320, § 44; 1991, ch. 326, § 70.

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.

Source:

S.L. 1897, ch. 112, §§ 19, 20; R.C. 1899, §§ 1068, 1069; R.C. 1905, §§ 1364, 1365; C.L. 1913, §§ 1937, 1938; R.C. 1943, § 24-0729.

Cross-References.

Costs and disbursements, see N.D.C.C. ch. 28-26.

Costs taxed by clerk, see N.D.R.Civ.P. 54(e).

Notes to Decisions

Applicability.

Neither N.D.R.Civ.P. 68, nor section 24-07-29 is applicable to an inverse condemnation action. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

Inverse Condemnation.

Where litigation remained an inverse condemnation action under Chapter 32-15, defendant condemnors could not claim the benefit of this section to the exclusion of section 32-15-32, which governed the award of costs. Gissel v. Kenmare Township, 512 N.W.2d 470, 1994 N.D. LEXIS 42 (N.D. 1994).

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.

Source:

S.L. 1897, ch. 112, § 21; 1899, ch. 97, § 1; R.C. 1899, § 1070; R.C. 1905, § 1366; C.L. 1913, § 1939; R.C. 1943, § 24-0730.

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.

Source:

S.L. 1897, ch. 112, § 5; 1899, ch. 97, § 1; R.C. 1899, § 1054; R.C. 1905, § 1350; S.L. 1911, ch. 148, § 1; C.L. 1913, § 1923; S.L. 1915, ch. 105, § 1; 1925 Supp., § 1923; R.C. 1943, § 24-0731.

Notes to Decisions

Non-use.

Where right of way was acquired by prescription and later relocated by state highway department, nonuse for period required to establish highway would have extinguished prescriptive right. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Summary judgment was inappropriately granted in favor of the township on the landowner’s action to quiet title to an easement where some affiants claimed to have used the road in question over the past several decades, while another affiant claimed the road went unused for a period of approximately 15 years; when a trial court was presented with “battling affidavits,” wrought with concerns over witness credibility, summary judgment was improper, and given that N.D.C.C. § 24-07-31 required a 10-year period of non-use, the dispute involved an issue of material fact rendering summary judgment inappropriate. Charles McCauley P'ship v. Tyrone Twp., 2004 ND 214, 689 N.W.2d 410, 2004 N.D. LEXIS 355 (N.D. 2004).

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.

Source:

Pol. C. 1877, ch. 29, § 32; R.C. 1895, § 1076; R.C. 1899, § 1076; R.C. 1905, § 1367; S.L. 1907, ch. 254, § 1; C.L. 1913, § 1940; R.C. 1943, § 24-0732.

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.

Source:

Pol. C. 1877, ch. 29, § 42; R.C. 1895, § 1078; R.C. 1899, § 1078; R.C. 1905, § 1369; C.L. 1913, § 1942; R.C. 1943, § 24-0733.

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.

Source:

S.L. 1883, ch. 112, § 95, subch. 2; R.C. 1895, §§ 1153, 1154; R.C. 1899, §§ 1153, 1154; R.C. 1905, §§ 1454, 1455; C.L. 1913, §§ 2046, 2047; R.C. 1943, § 24-0734.

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.

Source:

S.L. 1987, ch. 320, § 1.

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.

Source:

S.L. 1987, ch. 320, § 2; 1991, ch. 287, § 2.

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.

Source:

S.L. 1987, ch. 320, § 3.

CHAPTER 24-08 Bridges

24-08-01. Construction of bridges by board of county commissioners — Petition — Bids — Rejection.

Whenever a majority of the freeholders of a civil township, or a majority of the freeholders living within a radius of three miles [4.83 kilometers] of the proposed location, petition the board of county commissioners for a bridge at a specified location within such township, or within any incorporated city, if the cost of the bridge exceeds the sum of five hundred dollars, the board of county commissioners shall view and investigate the necessity of the proposed bridge. If the board approves the petition, it shall proceed to advertise in the official newspaper of the county, for a period of thirty days, the plans and specifications of the proposed bridge, asking for sealed bids for the building of such bridge, to be submitted to it at the next regular or special meeting, at which the board shall proceed to examine all proposals or bids for the building of such bridge. The board shall award the contract to the lowest responsible bidder, requiring the bidder to give a bond in a sum not less than the amount stipulated in the bid or contract, conditioned for the faithful compliance with the terms of the bid or contract, the bond to be approved by the board and filed in the office of the county auditor but the board may reject all bids. If all bids are rejected, the board shall readvertise as provided herein. Provided, however, that if the amount of the lowest responsible bid is less than fifteen thousand dollars, the board may refuse all bids received and proceed to construct the bridge under its own supervision as it deems most expedient and may enter into contracts for the labor or material to be used in the construction of the bridge.

Source:

S.L. 1890, ch. 38, § 1; R.C. 1895, § 1088; R.C. 1899, § 1088; R.C. 1905, § 1378; S.L. 1907, ch. 42, § 1; C.L. 1913, § 1951; S.L. 1919, ch. 72, § 1; 1925 Supp., § 1951; R.C. 1943, § 24-0801; S.L. 1967, ch. 323, § 81; 1969, ch. 264, § 1; 1971, ch. 270, § 1; 1977, ch. 236, § 1; 1979, ch. 330, § 1; 1983, ch. 82, § 47.

Cross-References.

Bids to show license number, see § 43-07-12.

License required by public contractor, see § 43-07-02.

Notes to Decisions

Authority to Contract.

Board of supervisors had no authority to enter into contract for purchase of bridge material unless authorized by electors at annual meeting, and any contract otherwise made was void. Caterpillar Tractor Co. v. Detman Township, 62 N.D. 465, 244 N.W. 876, 1932 N.D. LEXIS 205 (N.D. 1932).

Formalities.

To contract for the construction of a bridge, the board of county commissioners must obtain specifications, and must advertise for bids. Bayne v. Thorson, 37 N.D. 187, 163 N.W. 822, 1917 N.D. LEXIS 90 (N.D. 1917).

A taxpayer is not entitled to an injunction restraining the issuance of warrants in payment for culverts and bridges in spite of noncompliance with the statute. Backhaus v. Lee, 49 N.D. 821, 194 N.W. 887, 1923 N.D. LEXIS 59 (N.D. 1923).

Collateral References.

Duty and liability of municipality as regards barriers for protection of adult pedestrians who may unintentionally deviate from street or highway into marginal or external hazards, 44 A.L.R.2d 633.

Bids: determination of amount involved in contract within statutory provision requiring public contracts involving sums exceeding specified amount to be let to lowest bidder, 53 A.L.R.2d 498.

Lift bridge or drawbridge, liability for injury from defective condition or improper operation of, 90 A.L.R.2d 105.

Bids: contract for personal services as within requirement of submission of bids as condition of public employment, 15 A.L.R.3d 733.

Public contracts: authority of state or its subdivision to reject all bids, 52 A.L.R.4th 186.

24-08-02. Expense of bridge — How paid.

The expense of constructing a bridge built as provided in section 24-08-01 must be paid out of the county bridge fund, if such bridge is accepted and approved by the board of county commissioners.

Source:

S.L. 1890, ch. 38, § 2; R.C. 1895, § 1089; R.C. 1899, § 1089; R.C. 1905, § 1379; C.L. 1913, § 1952; R.C. 1943, § 24-0802.

Cross-References.

County may issue bonds to construct bridges, see § 21-03-06.

Notes to Decisions

Injunction against Payments.

A taxpayer is not entitled to an injunction restraining the issuance of warrants in payment for culverts and bridges in spite of noncompliance with the statute. Backhaus v. Lee, 49 N.D. 821, 194 N.W. 887, 1923 N.D. LEXIS 59 (N.D. 1923).

Irregular Contracts.

Where the board of supervisors is authorized to enter into a contract, a township is liable for the benefits received, although the contract is irregularly made. Caterpillar Tractor Co. v. Detman Township, 62 N.D. 465, 244 N.W. 876, 1932 N.D. LEXIS 205 (N.D. 1932).

24-08-02.1. County to furnish and pay for culverts on township roads.

The county shall furnish and install, at county expense, such culverts as are necessary to be used along township roads at points of intersection with established drains, in accordance with sections 24-08-01 and 24-08-02.

Source:

S.L. 1953, ch. 183, § 1; R.C. 1943, 1957 Supp., § 24-08021.

24-08-03. Bridges — Supervision, repairs, bids, signs — Liability.

  1. Each bridge built under the provisions of section 24-08-01 is under the supervision of the board of county commissioners, and the county shall pay the cost of rebuilding or repairing these bridges.
  2. If the cost of rebuilding or repairing a bridge would exceed thirty thousand dollars on estimate of the county engineer and upon the approval of the estimate by the department, the county commissioners shall advertise for bids and award the contract pursuant to section 24-08-01. If a bridge is destroyed by flood, fire, or other casualty and the public interest would suffer by the delay from advertising for bids and awaiting the contract pursuant to section 24-08-01, the county commissioners may promptly contract for the rebuilding or repair of the bridge without advertising for bids, regardless of the cost.
  3. The board of county commissioners at least every four years, and so far as time and conditions may permit, shall cause an inspection to be made of all bridges on the county road system in the county.
  4. If any bridge on the county road system is deemed unsafe for public use by the board of commissioners, it immediately shall take steps to close the bridge and prevent its use by the public.
  5. If any bridge on the county road system is deemed unsafe for loads in excess of a certain weight, the board of commissioners shall post, by January 1, 1985, load limit signs which must comply with the standards for uniform traffic control devices prescribed by the director under section 39-13-07.
  6. The county is not immune from claims or suits for damages arising out of negligent failure to perform the inspection, signing, and repair duties required by this section.

Source:

S.L. 1890, ch. 38, § 3; 1895, ch. 42, § 1; R.C. 1895, § 1090; R.C. 1899, § 1090; R.C. 1905, § 1380; S.L. 1907, ch. 42, § 1; 1911, ch. 152, § 1; C.L. 1913, § 1953; R.C. 1943, § 24-0803; S.L. 1963, ch. 217, § 1; 1969, ch. 265, § 1; 1971, ch. 270, § 2; 1977, ch. 303, § 17; 1979, ch. 330, § 2; 1981, ch. 291, § 3; 1981, ch. 293, § 1; 1983, ch. 309, § 1.

Cross-References.

Bids to show license number, see § 43-07-12.

Inspection of bridges, see § 24-01-37.

Notes to Decisions

General Rule.

To contract for the construction of a bridge, the board of county commissioners must obtain specifications, and must advertise for bids. Bayne v. Thorson, 37 N.D. 187, 163 N.W. 822, 1917 N.D. LEXIS 90 (N.D. 1917).

24-08-04. Bridges part of highway.

Bridges erected or maintained by the public constitute a part of the public highway.

Source:

Pol. C. 1877, ch. 29, § 48; R.C. 1895, § 1091; R.C. 1899, § 1091; R.C. 1905, § 1381; C.L. 1913, § 1954; R.C. 1943, § 24-0804.

24-08-05. Petition for bridges across navigable rivers.

Whenever one-third of the resident taxpayers of any county, as appears by the last preceding assessment roll of the county, petition the board of county commissioners requesting an appropriation to build a bridge across any navigable river on the line of the county, setting forth therein the location of the bridge as near as may be, its estimated cost, the necessity therefor to accommodate the general traveling public, the manner in which it is proposed to pay for the structure, and the time when it will be completed, the petition to be duly verified by the affidavits of at least fifteen of the petitioners therein named, the board of county commissioners shall publish a notice in the official newspaper of the county, once each week for three consecutive weeks, briefly stating the object of the petition and that the same will be heard and considered at the next regular meeting of such board. At the time appointed for the hearing of the petition, the board of county commissioners shall investigate the need for such bridge, and if it finds the same to be necessary and that the consent of the federal government has been obtained to span such river, it, by resolution duly entered upon the minutes of the board, shall appropriate toward the building of such bridge, from the county treasury, a sum not exceeding one-half of the estimated cost of the bridge. The appropriation must be upon condition that a sufficient bond be given, conditioned that the remaining one-half or more, as the case may be, of the cost of the bridge will be paid.

Source:

S.L. 1887, ch. 18, § 1; R.C. 1895, § 1092; R.C. 1899, § 1092; R.C. 1905, § 1382; C.L. 1913, § 1955; R.C. 1943, § 24-0805; S.L. 1983, ch. 82, § 48.

Cross-References.

Drainage ditches, bridges over, see § 61-21-32.

Irrigation canals, bridges over, see § 61-14-09.

24-08-06. Board of county commissioners may act with representatives of other governmental agency.

If the remaining one-half of the cost of any bridge to be constructed as provided in section 24-08-05 is made up by an appropriation from any neighboring state or by any municipality in this state, to be expended under a commission or through any other agency, the board of county commissioners shall appoint a committee from its own number, of three or more, to meet such other municipal agency, confer with its members, and advise and assist in the accomplishment of such improvement in the best possible manner, and when the work is completed and approved jointly by such agency and committee, such approval to be in writing and duly reported to such board and recorded in the minutes thereof, the board shall direct the county auditor to draw the county auditor’s warrant upon the treasurer in favor of the contractor for the amount due the contractor from such county.

Source:

S.L. 1887, ch. 18, § 2; R.C. 1895, § 1093; R.C. 1899, § 1093; R.C. 1905, § 1383; C.L. 1913, § 1956; R.C. 1943, § 24-0806.

Cross-References.

Construction of bridges by cities, see § 40-05-02.

24-08-07. Issuance of bonds to meet expenses of construction of bridge.

When one-half, or such other proportion as may be provided, of the cost of a bridge to be constructed as provided in section 24-08-05 is provided by any municipality within this state, it may issue bonds for this purpose in accordance with chapter 21-03. In case the limit of indebtedness of such municipality would be exceeded thereby, then it is lawful for such municipality to provide funding from revenues derived from its general fund levy authority.

Source:

S.L. 1887, ch. 18, § 3; R.C. 1895, § 1094; R.C. 1899, § 1094; R.C. 1905, § 1384; C.L. 1913, § 1957; R.C. 1943, § 24-0807; S.L. 1971, ch. 249, § 12; 2015, ch. 439, § 33, effective January 1, 2015.

Cross-References.

Bonds, see N.D.C.C. ch. 21-03.

Township tax levies for road and bridge repair and construction, see § 57-15-19.

24-08-08. Bridge funds to be turned over to city.

The county treasurer of each county wherein any city has constructed a bridge, or hereafter shall construct a bridge, over any navigable stream, shall pay to the auditor of such city whereby such bridge has been constructed or is about to be constructed, all money in the county treasury or which may come into the county treasury in the bridge fund of such county, which may have been or which shall be levied, assessed, and collected from persons and property, or either, in said city.

Source:

S.L. 1890, ch. 39, § 1; R.C. 1895, § 2500; R.C. 1899, § 2500; R.C. 1905, § 3013; C.L. 1913, § 4051; R.C. 1943, § 24-0808.

Notes to Decisions

Constitutionality.

Statute held constitutional as not being special legislation. State ex rel. Hagen v. Anderson, 22 N.D. 65, 132 N.W. 433, 1911 N.D. LEXIS 11 (N.D. 1911).

Section Inoperative.

Enactment of chapter 318 of the 1923 Session Laws, eliminating the separate bridge tax and combining and limiting the road and bridge tax to a levy of two and a half mills, effectively rendered this section inoperative; section could be made operative again if legislature were to impose a bridge tax and require it to be deposited in a bridge fund. City of Fargo v. Cass County, 286 N.W.2d 494, 1979 N.D. LEXIS 343 (N.D. 1979).

24-08-09. Cost of bridge limited.

The total cost to any county of any bridge built under the provisions of section 24-08-05 across a navigable river in no case may exceed the sum of three hundred thousand dollars.

Source:

S.L. 1887, ch. 18, § 4; R.C. 1895, § 1095; R.C. 1899, § 1095; R.C. 1905, § 1385; S.L. 1911, ch. 151, § 1; C.L. 1913, § 1958; S.L. 1917, ch. 66, § 1; 1925 Supp., § 1958; R.C. 1943, § 24-0809.

24-08-10. Counties or municipalities may assist in constructing bridge.

Any county or municipality within this state desiring to assist in the construction, maintenance, or repair of a bridge over a navigable river, regardless of whether such county or municipality borders the river at the point where the bridge is to be built, by a majority vote of its board or governing body:

  1. May enter into an agreement for the construction, maintenance, and repair of such a bridge with other municipalities or counties, whether such municipalities or counties are located within the state of North Dakota or a state bordering North Dakota; and
  2. May appropriate any sum that to the said board or governing body may seem reasonable and shall direct the proper officer to draw a warrant on the general fund for the payment of such appropriation.

Bridges constructed pursuant to this section may not be required to comply with the provisions of sections 24-08-01 and 24-08-05, except that bridges constructed entirely within the state of North Dakota must comply with the bidding requirements of section 24-08-01.

Source:

S.L. 1917, ch. 66, § 1; 1925 Supp., § 1958; R.C. 1943,§ 24-0810; S.L. 1975, ch. 243, § 1.

Cross-References.

Construction of bridges by cities, see § 40-05-02.

Notes to Decisions

City Bridges.

A city may construct a bridge only on a highway legally established. Manning v. City of Devils Lake, 13 N.D. 47, 99 N.W. 51, 65 L.R.A. 187, 112 Am. St. Rep. 652 (1904) decided prior to the enactment of § 40-60-01 N.D.C.C.

24-08-11. Plans for bridge when state aid is used in paying cost. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

24-08-12. Bridge across Yellowstone River in McKenzie County. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

24-08-13. Liberty memorial bridge.

A bridge replacing the bridge between Mandan and Bismarck presently known as the liberty memorial bridge is designated the liberty memorial bridge upon the completion of the replacement bridge.

Source:

S.L. 2005, ch. 40, § 9.

CHAPTER 24-09 Railroad Crossings

24-09-01. Definitions. [Repealed]

Repealed by S.L. 1953, ch. 177, § 120.

24-09-01.1. Standard railroad crossing warning systems — Survey for additional warning systems.

The standard warning system at each public highway-railroad grade crossing must be railroad crossbucks and advance warning signs designed and located pursuant to section 39-13-07. These signing requirements and standards must be deemed adequate and appropriate for warning of the existence and nature of each railroad crossing for all purposes whatsoever. However, because of the availability of substantial federal funds, and for the purpose of promoting the additional safety and general welfare of the motoring public, and railroad employees, and to secure the practical and orderly development of additional warning systems beyond the standards herein, and to enable the various jurisdictional authorities to implement existing statutes authorizing the determination of need and selection of additional warning systems, and within the practical limitations of time and available public funds, the department shall conduct and systematically maintain a survey of all streets and highways as required by the Federal Highway Safety Act of 1973, to identify those railroad crossings which may need additional warning systems beyond the standard crossbucks and advance warning signs. To implement such survey and to make the determination of need and selection of additional warning systems, the department may screen, rate, and prioritize said crossings for additional warning systems and establish an installation program. In order to foster additional warning systems beyond the standards herein or improvements thereto, where such additional warnings or improvements thereto are deemed necessary by any jurisdictional authority either under this statute or any other statutes, neither the actions, proceedings, findings, or orders of any jurisdictional authority, nor the actions of the railroad regarding such additional warning or improvements thereto, prior to installation and operation thereof, are admissible in evidence in any civil action for personal injury, death, or damage to property arising out of a public highway-railroad crossing accident.

Source:

S.L. 1979, ch. 331, § 1; 1987, ch. 321, § 1.

Notes to Decisions

Federal Preemption.

Railroad’s common-law duty of care continues until the federally prescribed devices are actually installed and operating, then federal preemption occurs. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Trial court erred in dismissing an action against a railroad seeking an injunction and damages relating to the closing of a grade crossing without notice because the Interstate Commerce Commission Termination Act of 1995 did not explicitly preempt state law concerning grade crossings in 49 U.S.C.S. § 10501(b). Home of Econ. v. Burlington N. Santa Fe R.R., 2005 ND 74, 694 N.W.2d 840, 2005 N.D. LEXIS 81 (N.D. 2005).

Liability of Municipality.

Where plaintiffs did not dispute warning signs near railroad crossing met requirements and standards for a standard warning system at public highway-railroad grade crossing under this chapter, and crossing was not an unreasonably dangerous or hazardous condition, as a matter of law city did not have a duty to change grade of street or to post speed limit or other warning sign near crossing. Diegel v. City of W. Fargo, 546 N.W.2d 367, 1996 N.D. LEXIS 121 (N.D. 1996).

Question of Fact.

Where there was a question of fact whether advance warning signs and crossbucks placed at railroad intersection had lost their reflectivity, district court erred in dismissing plaintiff’s action for inadequate warning against railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

24-09-02. Uniform warning systems at railroad crossings.

The department shall adopt and prescribe uniform warning systems in conformity with sections 39-13-06 and 39-13-07 for use at public grade crossings in this state which will be deemed adequate and appropriate warning of the existence and nature of such grade crossings for all purposes whatsoever.

Source:

S.L. 1925, ch. 181, § 2; 1925 Supp., § 4688a2; R.C. 1943, § 24-0902; S.L. 1979, ch. 331, § 2; 1987, ch. 321, § 2.

24-09-03. Railroads to establish signs.

At each grade crossing in this state hereafter established and at each grade crossing where and when the existing crossing signs are replaced, the railway company operating the railroad thereat shall erect and maintain on the highway on each side of the railroad track or tracks, and within a distance of seventy-five feet [22.86 meters] from the nearest rail, one or more of such uniform home-crossing signs.

Source:

S.L. 1925, ch. 181, § 3; 1925 Supp., § 4688a3; R.C. 1943, § 24-0903.

Cross-References.

Certain vehicles to stop at all crossings, see § 39-10-43.

Notes to Decisions

Federal Preemption.

Railroad’s common-law duty of care continues until the federally prescribed devices are actually installed and operating, then federal preemption occurs. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Question of Fact.

Where there was a question of fact whether advance warning signs and crossbucks placed at railroad intersection had lost their reflectivity, district court erred in dismissing plaintiff’s action for inadequate warning against railroad. Kiemele v. Soo Line R.R., 93 F.3d 472, 1996 U.S. App. LEXIS 20889 (8th Cir. N.D. 1996).

Collateral References.

Admissibility, in railroad crossing accident case, of evidence of other functional failures of railroad crossing devices and appliances of the same kind at other times, 46 A.L.R.2d 935.

Failure of signaling device at crossing to operate as affecting railroad company’s liability, 90 A.L.R.2d 350.

24-09-04. Advance warning signs — Exceptions.

The sole signing duty of the road authority, except as otherwise designated by the commission under section 24-09-08, at public grade crossings in the state is the erection and maintenance of advance warning signs in accordance with the manual on uniform traffic control devices. The road authorities have a reasonable length of time, not exceeding two years, in which to fully implement this requirement.

Source:

S.L. 1925, ch. 181, § 4; 1925 Supp., § 4688a4; R.C. 1943, § 24-0904; S.L. 1979, ch. 331, § 3; 1981, ch. 476, § 1; 1987, ch. 321, § 3.

Notes to Decisions

Liability of Municipality.

Where plaintiffs did not dispute warning signs near railroad crossing met requirements and standards for a standard warning system at a public highway-railroad grade crossing under this chapter, and crossing was not an unreasonably dangerous or hazardous condition, as a matter of law city did not have a duty to change grade of street or to post speed limit or other warning sign near crossing. Diegel v. City of W. Fargo, 546 N.W.2d 367, 1996 N.D. LEXIS 121 (N.D. 1996).

24-09-05. Stop signs may be required.

At each grade crossing where, because of the dangers attendant upon its use, the reasonable protection to life and property makes it necessary for all persons approaching the same to stop before crossing the railroad tracks thereat, stop signs shall be installed. The department, after performing an engineering study of the crossing, may designate any crossing requiring such additional protection as a stop crossing and shall notify the road authority with jurisdiction over the roadway of such designation and of the location where the stop sign is to be installed. Within thirty days after such notification, the road authority shall erect uniform stop signs on separate posts at the designated location on each side of said crossing.

Source:

S.L. 1925, ch. 181, § 5; 1925 Supp., § 4688a5; R.C. 1943, § 24-0905; S.L. 1987, ch. 321, § 4; 1991, ch. 424, § 1.

Cross-References.

Dangerous crossings, erection of stop signs at, see § 39-10-42.

24-09-06. Vehicles carrying school children, passengers for hire, or explosives must stop at railroad crossing. [Repealed]

Repealed by S.L. 1975, ch. 347, § 25.

24-09-07. Speed limit at railroad crossing. [Repealed]

Repealed by S.L. 1961, ch. 206, § 3.

24-09-08. Additional safeguards at crossings may be required.

The commission, upon written application made to it by the director, the board of county commissioners of any county, the board of supervisors of any township, any municipality, the railroad company, or upon its own motion, shall investigate and determine whether any railroad grade crossing over any state, county, township, or municipal highway in the state is dangerous to life and property and needs protection further than that set out in this chapter, and may order the same protected in any manner it may find reasonable and proper, including a requirement that the railroad company separate the grades. In such cases, the commission shall give the railroad company interested such notice of the investigation as it deems reasonable and an opportunity to be heard before any order is made. The railroad company interested, within thirty days after the service of a copy of such order upon it, may appeal to the district court of the county within which such crossing is situated.

Source:

S.L. 1925, ch. 181, § 8; 1925 Supp., § 4688a8; R.C. 1943, § 24-0908; S.L. 1969, ch. 266, § 1.

Cross-References.

Construction and maintenance of railroad crossings, see § 49-11-06.

Notes to Decisions

Abolition of Grade Crossings.

The board of railroad commissioners, now the public service commission, may require abolition of existing grade crossings. North Dakota State Highway Comm'n v. Great N. Ry., 51 N.D. 680, 200 N.W. 796, 1924 N.D. LEXIS 65 (N.D. 1924).

Application.

Applicants must file statement of claims on which they rely, and relief sought, with the commission and a copy of such statement must be served on railroad. In re Village Bd., 77 N.D. 194, 42 N.W.2d 321 (1950), decided prior to the adoption of N.D.R.Civ.P. 12; distinguished, Krueger v. American Christian Mut. Life Ins. Co., 77 N.D. 436, 43 N.W.2d 676, 1950 N.D. LEXIS 140 (N.D. 1950).

Hearing on Own Motion.

If commission decides, on its own motion, to conduct a hearing, it must file written statement of issues to be determined, and must serve statement and notice of hearing on railroad. In re Village Bd., 77 N.D. 194, 42 N.W.2d 321 (1950), decided prior to the adoption of N.D.R.Civ.P. 12; distinguished, Krueger v. American Christian Mut. Life Ins. Co., 77 N.D. 436, 43 N.W.2d 676, 1950 N.D. LEXIS 140 (N.D. 1950).

Scope of Hearing.

Commission cannot enter order as to decrease of grades, as well as to adequate warning signals, where notice to railroad stated that hearing would be on warning signals alone. In re Village Bd., 77 N.D. 194, 42 N.W.2d 321 (1950), decided prior to the adoption of N.D.R.Civ.P. 12; distinguished, Krueger v. American Christian Mut. Life Ins. Co., 77 N.D. 436, 43 N.W.2d 676, 1950 N.D. LEXIS 140 (N.D. 1950).

Special Appearance.

Railroad making special appearance before commission and challenging latter’s jurisdiction did not waive such objection by cross-examining witnesses in favor of petition and calling witnesses to testify in opposition to it. In re Village Bd., 77 N.D. 194, 42 N.W.2d 321 (1950), decided prior to the adoption of N.D.R.Civ.P. 12; distinguished, Krueger v. American Christian Mut. Life Ins. Co., 77 N.D. 436, 43 N.W.2d 676, 1950 N.D. LEXIS 140 (N.D. 1950).

Collateral References.

Signals: customary or statutory signal from train as measure of railroad’s duty as to warning at highway crossing, 5 A.L.R.2d 112.

Flagman, duty to maintain, 24 A.L.R.2d 1161.

Signals: failure of signaling device at crossing to operate, as affecting railroad company’s liability, 90 A.L.R.2d 350.

Contributory negligence of child injured while climbing over or through railroad train blocking crossing, 11 A.L.R.3d 1168.

24-09-08.1. Department of transportation to apportion cost — Exception.

In order to promote public safety at intersections of railroad lines and all classes of highways, the department shall apportion the cost of automatic grade crossing protection devices in accordance with this section. In the event that the commission in accordance with the provisions of section 24-09-08 orders that any grade crossing must be protected by automatic grade crossing protection devices, the commission shall in its order apportion the cost thereof between the railroad interested, the political subdivision having jurisdiction of the highway involved, and the state of North Dakota. Such cost must be apportioned to such parties or to any one or more of such parties on the basis of the benefit derived respectively by highway users and the railroad from the installation of such crossing protection device. For the purpose of this section, the cost attributable to the benefit of the highway users must be apportioned to the state of North Dakota or to the political subdivision having jurisdiction of the highway involved or to both of such parties. The cost apportioned to the state of North Dakota must be paid out of the highway fund in the state treasury, provided that not more than one hundred thousand dollars may be expended for this purpose in any one biennium.

Source:

S.L. 1963, ch. 218, § 1; 1965, ch. 202, § 1; 1969, ch. 266, § 2; 1973, ch. 225, § 1; 1977, ch. 237, § 1; 1987, ch. 321, § 5.

24-09-09. Warning devices must be approved by department of transportation.

The department, so far as practicable, shall secure uniformity in the devices used to protect grade crossings. No such devices may be installed until the same have been approved by the department. Except for devices prescribed under section 24-09-08, all devices installed, which conflict with the devices approved by the department, either in their design or method of operation, so as to create a hazardous condition to travel at such crossing, must be modified immediately by the railway company controlling the same so as to conform to those approved by the department.

Source:

S.L. 1925, ch. 181, § 9; 1925 Supp., § 4688a9; R.C. 1943, § 24-0909; S.L. 1987, ch. 321, § 6.

24-09-10. Changing or closing railroad crossing — Power of public service commission — Hearing.

It is in the interest of public safety to eliminate unnecessary railroad grade crossings whenever reasonable access can be safely provided at another crossing. Whenever it is desired, either by the public officials having the necessary authority or by the railway company operating the railroad, to establish, vacate, or relocate any crossing of a public highway and a railroad, or to separate grades, and an agreement cannot be reached between the public official and the railway company, either as to the necessity for establishing, vacating, or relocating a crossing or for separating grades, as to place, manner of construction, or a reasonable division of the expense, either party may file a petition with the commission, setting forth the facts and submitting the matter to it for determination. The commission, after giving notice as it shall deem reasonable, shall conduct a hearing and shall issue its order determining whether there should be an establishment, vacation, or relocation of the crossing in question, or a separation of grades, and dividing the expense of the establishment, relocation, or separation of grades. Irrespective of the establishment, relocation, or the consideration of further reasonable protection of a crossing, if the commission finds any railroad crossing to be unnecessary or unsafe, it shall order the crossing closed after reasonable notice and hearing. Whenever a final order is entered vacating or closing a crossing, it must be vacated or closed at the railroad company’s expense.

Source:

S.L. 1925, ch. 181, § 10; 1925 Supp., § 4688a10; S.L. 1927, ch. 233, § 1; R.C. 1943, § 24-0910; S.L. 1979, ch. 331, § 4; 1993, ch. 278, § 1.

Cross-References.

Controlled-access facilities, elimination of crossings at grade, see § 24-01-33.

Detour provided by railroad while altering crossing, see § 49-11-01.

Railroad crossings, construction, see § 49-11-06.

State highways, elimination of grade crossings, see § 24-01-17.

Notes to Decisions

Effect of Condemnation by Federal Government.

Statute was inapplicable where railroad sought to fill in underground crossing in accordance with its contract with federal government which had condemned land involved; public service commission had no supervisory control over railroad’s performance of its contractual obligations and was enjoined from interfering with the work as such interference would unlawfully obstruct government’s exercise of eminent domain power. United States v. Certain Parcels of Land, 178 F. Supp. 313, 1959 U.S. Dist. LEXIS 2511 (D.N.D. 1959).

Original Determination.

When construction of state highway requires installation of railroad crossing regarding which agreement cannot be reached with railroad, controversy must be determined in first instance by public service commission. Great N. Ry. v. McDonnell, 77 N.D. 802, 45 N.W.2d 721, 1950 N.D. LEXIS 171 (N.D. 1950).

24-09-11. Overhead and underground railroad crossings may be required.

The commission may require any railroad to construct and maintain overhead or underground crossings and separate grades when in its opinion the interest and safety of the public require, and may apportion the costs therefor in such manner as the commission deems proper, and no overhead or underground crossing, nor separation of grades, may be made except upon petition therefor to the commission and with the commission’s approval.

Source:

S.L. 1925, ch. 181, § 11; 1925 Supp., § 4688a11; S.L. 1935, ch. 149, § 1; R.C. 1943, § 24-0911.

Notes to Decisions

Effect of Condemnation by Federal Government.

Statute was inapplicable where railroad sought to fill in underground crossing in accordance with its contract with federal government which had condemned land involved; public service commission had no supervisory control over railroad’s performance of its contractual obligations and was enjoined from interfering with the work as such interference would unlawfully obstruct government’s exercise of eminent domain power. United States v. Certain Parcels of Land, 178 F. Supp. 313, 1959 U.S. Dist. LEXIS 2511 (D.N.D. 1959).

Collateral References.

Bridge: injury or damage resulting from motor vehicle striking bridge or underpass because of insufficient vertical clearance, 67 A.L.R.2d 1364.

24-09-12. Advertising signs not to obstruct or resemble crossing signs.

No person, firm, corporation, or limited liability company may place or maintain any advertising sign or other similar obstruction upon, over, or adjacent to any highway between any approach sign and the grade crossing which it marks, nor may any person, firm, corporation, or limited liability company place or maintain, upon, over, or adjacent to any public highway in this state any sign or symbol in any manner resembling the signs provided for in this chapter.

Source:

S.L. 1925, ch. 181, § 12; 1925 Supp., § 4688a12; R.C. 1943, § 24-0912; S.L. 1993, ch. 54, § 106.

Cross-References.

Advertising signs not to interfere with view of railroad crossing, see § 24-01-12.

24-09-13. Injuring crossing signs — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

24-09-14. Failure to stop at crossing does not affect right to recover for injuries — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

CHAPTER 24-10 Cattle Guards and Gateways

24-10-01. Cattle guards — How permitted.

Whenever the erection of cattle guards is necessary to complete an enclosure which includes land on both sides of any highway in the state, except a highway which has been designated as part of the state highway system, or to cross a section line pursuant to section 24-06-28, the board of county commissioners, if the cattle guard is to be erected across a county road or a section line subject to jurisdiction of the board of county commissioners, or the board of township supervisors, if the cattle guard is to be erected across a township road or a section line subject to jurisdiction of the board of township supervisors, may issue permission to any person, firm, or corporation to erect a cattle guard and gateway across the highway or section line upon the conditions hereinafter prescribed.

Source:

S.L. 1931, ch. 152, § 1; R.C. 1943, § 24-1001; S.L. 1955, ch. 183, § 1; 1957 Supp., § 24-1001; S.L. 1977, ch. 234, § 5.

Cross-References.

Cattle guards, when railroad required to construct and maintain, see §§ 49-11-17, 49-11-28.

24-10-02. Cattle guards — Construction — Maintenance — Effect.

Before any cattle guard and gateway may be erected across any highway or section line as authorized in section 24-10-01, the board of county commissioners or board of township supervisors, as the case may be, shall approve written specifications of the cattle guard and gateway. Specifications approved by the board of county commissioners must be filed with the county auditor and specifications approved by the board of township supervisors must be filed with the township clerk. The specifications must include requirements for warning signs to be placed approximately three hundred feet [91.44 meters] from and plainly visible to persons approaching the cattle guard upon the highway or section line. A cattle guard must be so constructed as to permit the passage of motor vehicles through and over the same. No cattle guard may be erected upon any highway or section line unless there also is provided adjacent thereto an ample gateway in which must be erected a gate which may be opened easily and closed by the public. The person who applied for permission to erect the cattle guard shall maintain the cattle guard and gateway, unless application is otherwise assigned. Within the limits of an enclosure so completed by authorized cattle guards erected in accordance with such specifications, livestock must be permitted to run at large without liability for being upon the highway or section line.

Source:

S.L. 1931, ch. 152, § 2; R.C. 1943, § 24-1002; S.L. 1955, ch. 183, § 2; 1957 Supp., § 24-1002; S.L. 1977, ch. 234, § 6; 1985, ch. 306, § 1.

Cross-References.

Public service commission to approve cattle guards, see § 49-11-17.

Notes to Decisions

Implements of Husbandry.

The clause in this section which requires that a cattle guard permit the passage of motor vehicles applies to automobiles, pick-up trucks, and the like, but does not include all implements of husbandry. Ames v. Rose Township Bd. of Township Supervisors, 502 N.W.2d 845, 1993 N.D. LEXIS 127 (N.D. 1993).

Size of Gates and Guards.

The legislature left the precise size of gateways and cattle guards as a matter to be determined by the board of township supervisors in the exercise of its discretion in the approval of the specification for cattle guards and gateways pursuant to this section. Ames v. Rose Township Bd. of Township Supervisors, 502 N.W.2d 845, 1993 N.D. LEXIS 127 (N.D. 1993).

24-10-03. Leaving gates open — Penalty.

Any person who opens and fails to close promptly any gate provided for in this chapter is guilty of an infraction.

Source:

S.L. 1931, ch. 152, § 3; R.C. 1943, § 24-1003; S.L. 1975, ch. 106, § 263.

24-10-04. Cattle guards may be ordered removed.

The board having authority to permit the erection of a cattle guard and gateway across any highway or section line also has authority to cause the same to be removed, if the same is not kept in repair, or if in the judgment of said board, it becomes necessary to remove the cattle guard and gateway for the purpose of improving the highway or section line. If the board determines any cattle guard and gateway should be removed under this section, written notice by registered or certified mail must be sent to the occupant of the enclosure, notifying the occupant to effect such removal within thirty days from the date of mailing. If the notice is not complied with, the board, upon expiration of the period, is authorized to remove or destroy the cattle guard and gateway.

Source:

S.L. 1931, ch. 152, § 4; R.C. 1943, § 24-1004; S.L. 1977, ch. 234, § 7.

24-10-05. County and townships exercise joint authority.

If the cattle guard and gateway provided for in section 24-10-01 are sought to be erected upon any township or county line, the governing boards of the adjacent territory shall exercise joint authority and jurisdiction and the proceedings required in section 24-10-02 must be taken in both jurisdictions.

Source:

S.L. 1931, ch. 152, § 5; R.C. 1943, § 24-1005.

24-10-06. Cattle ways under highways.

Upon application to the board of county commissioners of any county or the board of township supervisors of any organized township, by any person, for permission to construct a cattle way under any public road, such board may grant the same upon condition that the cattle way may not interfere with the public travel, that the grade of the road over the cattle way may not exceed one foot [.30 meter] in ten feet [3.05 meters], and that it may not obstruct watering at any running stream. The applicant shall construct the same at the applicant’s own expense and is responsible for all damages that may arise from its construction or from failure to keep the same in repair.

Source:

S.L. 1909, ch. 138, § 1; C.L. 1913, § 2043; R.C. 1943, § 24-1006.

Notes to Decisions

Construction of Bridge.

County commissioners had authority to build structure called a “cattle pass”, which was, in fact, a bridge. Bowman County v. Board of Comm'rs, 66 N.D. 22, 262 N.W. 185, 1935 N.D. LEXIS 166 (N.D. 1935).

24-10-07. Failure to keep cattle way in repair.

If the person on whose land a cattle way is constructed fails to keep the cattle way in repair, the overseer of highways shall make all necessary repairs and shall charge the expenses to the person who requested the way be constructed or to that person’s assignee. Upon refusal by that person to pay, the county or township board in which the cattle way is situated shall recover the expenses in an action brought in the name of the county or township and the state’s attorney shall prosecute the action. The money, when collected, must be expended in improving or repairing the public roads in the road district where the cattle way is constructed.

Source:

S.L. 1909, ch. 138, § 2; C.L. 1913, § 2044; R.C. 1943, § 24-1007; S.L. 1985, ch. 306, § 2.

24-10-08. Board may prescribe regulations.

The board granting an application to construct a cattle way may prescribe such further regulations and specifications in the construction of such way as it may deem proper, not inconsistent with the provisions of sections 24-10-06 and 24-10-07.

Source:

S.L. 1909, ch. 138, § 3; C.L. 1913, § 2045; R.C. 1943, § 24-1008.

CHAPTER 24-11 Ferries [Repealed]

[Repealed by S.L. 1975, ch. 106, § 673]

CHAPTER 24-12 Miscellaneous Provisions

24-12-01. Injuries to highways.

No person may willfully dig up, remove, displace, break, or otherwise injure or destroy any public highway, right of way, or bridge, or any rest area, picnic area, or tourist camp, or improvements thereon, operated in connection with a public highway, or any private way laid out by authority of law, or any bridge upon such way without first securing permission from the person or governing body having jurisdiction and control thereof.

Source:

S.L. 1953, ch. 177, § 115; R.C. 1943, 1957 Supp., § 24-1201; S.L. 1959, ch. 236, § 1.

Cross-References.

Damaging property or public services, see N.D.C.C. ch. 12.1-21.

Notes to Decisions

Injury.

Fact that drive-in theater’s light post and fence were situated on highway right of way did not establish injury or obstruction; injunction for their removal was denied. Hjelle v. J. C. Snyder & Sons, 133 N.W.2d 625, 1965 N.D. LEXIS 139 (N.D. 1965).

24-12-02. Obstructing highways.

No person may:

  1. Obstruct any public highway in any manner with intent to prevent the free use thereof by the public;
  2. Willfully and knowingly obstruct or plow up, or cause to be obstructed or plowed up, any public highway or right of way, except by order of the officials having jurisdiction over such highway for the purpose of working or improving the same;
  3. Build or place a barbed wire fence across any well-traveled trail which has been the usual and common route of travel for not less than one year without placing on the outside of the top tier of barbed wire on said fence a board, pole, or other suitable protection, to be at least sixteen feet [4.88 meters] in length; or
  4. Plow up a section line in a manner so as to obstruct usual travel on the section line.

Source:

S.L. 1953, ch. 177, § 116; R.C. 1943, 1957 Supp., § 24-1202; S.L. 1967, ch. 211, § 1; 1987, ch. 322, § 1.

Notes to Decisions

Agent’s Negligence.

Nonresident landowner not liable for injuries received by team of horses which ran into barbed wire fence erected, at his direction, across common trail, where agent failed to follow owner’s directions to provide guardrails. Kuhnert v. Angell, 10 N.D. 59, 84 N.W. 579, 1900 N.D. LEXIS 9 (N.D. 1900).

Evidence.

To support a verdict for damages for obstructing a highway, there must be evidence connecting the defendant with the unlawful act. Kuhnert v. Angell, 8 N.D. 198, 77 N.W. 1015, 1898 N.D. LEXIS 48 (N.D. 1898); Kuhnert v. Angell, 10 N.D. 59, 84 N.W. 579, 1900 N.D. LEXIS 9 (N.D. 1900).

Obstruction.

Fact that drive-in theater’s light post and fence were situated on highway right of way did not establish injury or obstruction; injunction for their removal was denied. Hjelle v. J. C. Snyder & Sons, 133 N.W.2d 625, 1965 N.D. LEXIS 139 (N.D. 1965).

Conclusion farmer did not violate this section by plowing section line did not wholly acquit him, because trial court did not instruct jury on subsection (2) and there was evidence farmer parked machinery on section line or otherwise acted to obstruct usual travel from which jury might properly have convicted him, and he would be retried with jury properly instructed. State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Defendant was convicted of criminal trespass under N.D.C.C. § 12.1-22-03, based on allegations that he drove his vehicle on his ex-wife’s property and damaged flax planted over the passable portion of the section line; the district court erred in denying defendant’s motion for judgment of acquittal, because there existed a legitimate dispute as to whether the road upon which he was alleged to have trespassed became a public road by prescription. The section line road had never been closed under a proceeding permitted by statute; in addition, his ex-wife barricaded, plowed up, and planted over the established section line road despite the statutory prohibitions against all these acts under N.D.C.C. § 24-12-02. State v. Herzig, 2012 ND 247, 825 N.W.2d 235, 2012 N.D. LEXIS 256 (N.D. 2012).

Public Road by Prescription.

Defendant’s conviction for obstructing a public road was reversed, where alleged road in question was allegedly acquired by prescription, was not declared to be a public road until date of conviction at criminal trial, and there was a legitimate dispute as to whether or not necessary requirements had been met to establish a public road by prescription; proper procedure to determine if a public road has been established by prescription is a civil action. State v. Meyer, 361 N.W.2d 221, 1985 N.D. LEXIS 240 (N.D. 1985).

County obtained a prescriptive easement and a road was declared to be public in nature because the requirements of N.D.C.C. § 24-07-01 were satisfied; the prescriptive period commenced when the county constructed the road in the early 1950s, and the construction and maintenance of the road supported the finding of adverse use, but a remand was necessary to determine a description of the prescriptive road. There was evidence in the record to support the trial court’s findings about the temporary use of gates and their effect on adverse public use; however, an owner was not entitled to damages for inverse condemnation because the road became a public road before she obtained an interest in the land. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Section Line.

This section was not applicable to a fence and gate built by property owner on a section line where, under section 24-07-03, the section line was not considered a public road and it was not a well-traveled trail. De Lair v. County of La Moure, 326 N.W.2d 55, 1982 N.D. LEXIS 333 (N.D. 1982).

Section applied to section lines. State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

A section line is a “public highway or right of way” under this section. State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

This section unambiguously proscribes plowing of a section line, irrespective of whether or to what degree that action obstructs the section line. State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

By enacting this section, the legislature has declared that plowing a section line constitutes interference with the public’s easement for travel. State v. Silseth, 399 N.W.2d 868, 1987 N.D. LEXIS 246 (N.D. 1987).

Farmer is not required to request permission from township board before plowing unimproved, though traveled, section line. State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Subsection (4) does not limit a township board’s authority over a traveled section line by allowing it to be plowed without permission when that activity does not obstruct usual travel. State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Subsection (4) is intended to permit plowing of unimproved and traveled section lines if it does not “obstruct usual travel,” while continuing the prohibition against plowing along improved public highways. State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Isolated crossing and drainage culvert did not improve section line enough to impose the restrictions against plowing in subsection (2). State v. Brossart, 1997 ND 119, 565 N.W.2d 752, 1997 N.D. LEXIS 123 (N.D. 1997).

Collateral References.

Pole: liability of governmental unit for injury to traveler from collision with privately owned pole standing within highway boundaries, 3 A.L.R.2d 6.

Liability of governmental unit for collision with safety and traffic-control devices in traveled way, 7 A.L.R.2d 226.

Trees: liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.

Holiday, entertainment, parade, or other special event, liability of municipality for injury or death resulting from temporary condition or obstruction in street in connection with, 84 A.L.R.2d 508.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection, 22 A.L.R.4th 624.

Liability of private landowner for vegetation obscuring view at highway or street intersection, 69 A.L.R.4th 1092.

24-12-03. Garbage deposited on highways. [Repealed]

Repealed by S.L. 1991, ch. 277, § 21.

24-12-04. Injury to mileboards, guideposts, traffic-control signals, signs, or markings.

No person may remove, injure, or destroy any mileboard, milestone, or guidepost, traffic-control signals, signs, or markings, or any inscription thereon, erected or placed upon any highway, road, or street by any public authority or by any contractor, subcontractor, or employee engaged in construction activities pursuant to a contract with a public authority therefor.

Source:

S.L. 1953, ch. 177, § 118; R.C. 1943, 1957 Supp., § 24-1204; S.L. 1961, ch. 204, §§ 2, 3; 1979, ch. 327, § 2.

24-12-04.1. Rewards authorized.

The director or any political subdivision of this state is hereby authorized to offer a reward, the amount of which must be determined by the director or the governing body of the political subdivision not exceeding, however, the sum of three hundred dollars, for any information leading to the conviction of any person or persons violating the provisions of this chapter.

Source:

S.L. 1979, ch. 327, § 3.

24-12-05. Penalties.

Any person who violates any provision of this title for which another penalty is not specifically prescribed is guilty of a class B misdemeanor.

Source:

S.L. 1953, ch. 177, § 119; R.C. 1943, 1957 Supp., § 24-1205; S.L. 1975, ch. 106, § 264.

24-12-06. Penalty for running tollgate. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

CHAPTER 24-13 Wartime Provisions [Repealed]

[Repealed by S.L. 1971, ch. 266, § 4]

CHAPTER 24-14 Public Safety Division [Repealed]

[Repealed by S.L. 1963, ch. 267, § 3]

CHAPTER 24-15 Temporary Roadblocks

24-15-01. Definition.

For the purpose of this chapter, a temporary roadblock means any structure, device, or means used by police, sheriffs, deputy sheriffs, game wardens, highway patrolmen, agents of the federal bureau of investigation, or officers of the United States border patrol, for the purpose of controlling traffic through a point on a highway, road, or street, whereby all vehicles may be slowed or stopped.

Source:

S.L. 1959, ch. 284, § 1.

Cross-References.

Word defined by statute always has same meaning, see § 1-01-09.

24-15-02. Authority to establish roadblocks.

The duly authorized law enforcement officers are hereby authorized to establish in their respective jurisdictions, or in other jurisdictions within the state, temporary roadblocks upon the highways, roads, and streets of this state for the purpose of apprehending persons wanted for violation of the laws of this state, or of any other state, or of the United States of America, and using the highways, roads, or streets of this state for the purpose of escape.

Source:

S.L. 1959, ch. 284, § 2.

Collateral References.

Validity of routine roadblocks by state or local police for purpose of discovery of vehicular or driving violation, 37 A.L.R.4th 10.

Validity of police roadblocks or checkpoints for purpose of discovery of alcoholic intoxication — post-Sitz cases, 74 A.L.R.5th 319.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations, 82 A.L.R.5th 103.

24-15-03. Minimum requirements.

For the purpose of warning and protecting the traveling public, the minimum requirements to be met by such officers establishing temporary roadblocks are:

  1. The temporary roadblock must be established at a point on the highway clearly visible at a distance of not less than three hundred feet [91.44 meters] in either direction.
  2. At a point of the temporary roadblock, at least one red light must be placed at the point of the temporary roadblock which must display an intermittent or flashing beam of light, clearly visible to the oncoming traffic at a distance of not less than three hundred feet [91.44 meters] under normal atmospheric conditions. The intermittent or flashing beam of light may be provided by lighting which is part of the equipment of a class A authorized emergency vehicle.

Source:

S.L. 1959, ch. 284, § 3; 1983, ch. 310, § 1.

24-15-04. Existing law preserved.

Nothing in this chapter may be deemed to limit or encroach upon the existing authority of North Dakota law enforcement officers in the performance of their duties involving traffic control and criminal apprehension.

Source:

S.L. 1959, ch. 284, § 4.

24-15-05. Penalty.

Any person who proceeds or travels through a roadblock without submitting to the traffic control so established is guilty of a class B misdemeanor.

Source:

S.L. 1959, ch. 284, § 5; 1975, ch. 106, § 265.

CHAPTER 24-16 Establishment of Junkyards Adjacent to Highways

24-16-01. Legislative intent.

The legislative assembly declares that the establishment, use, and maintenance of junkyards in areas adjacent to the state highway system should be controlled to protect the public health, welfare, and morals; conserve the public investment in such highways; promote the safety and recreational value of public highways; and preserve natural beauty.

Source:

S.L. 1967, ch. 212, § 1.

24-16-02. Definitions.

  1. “Automobile graveyard” means any establishment or place of business or location that is maintained, used, or operated for storing, keeping, buying, or selling wrecked, scrapped, abandoned, ruined, or dismantled motor vehicles, motor vehicle parts, or machinery of all types.
  2. “Commissioner” means the director of the department of transportation or authorized agents as provided by section 24-02-01.3.
  3. “Highway” means any highway as defined in subsection 22 of section 24-01-01.1.
  4. “Junk” means old or scrap paper, copper, brass, rope, rags, batteries, paper, trash, rubber, debris, or waste or junked, dismantled, or wrecked automobiles or parts thereof or iron, steel, and other old or scrap ferrous or nonferrous material.
  5. “Junkyard” means a business establishment or a place which is maintained, operated, or used for placing, storing, keeping, buying, or selling junk, or for the maintenance, use, or operation of an automobile graveyard and the term includes garbage dumps and sanitary fills.

Source:

S.L. 1967, ch. 212, § 2; 1989, ch. 72, § 11.

Cross-References.

Word defined by statute always has same meaning, see § 1-01-09.

24-16-03. Establishment of junkyards and automobile graveyards — Limitation.

No junkyards, automobile graveyards, or scrap metal processing facilities may be established and maintained within one thousand feet [304.8 meters] of the nearest edge of the right of way of a highway on the state highway system unless permission has been granted by the director. Junkyards established in violation of this chapter are hereby declared to be a public nuisance and the director may enter upon private property for the purpose of abating such nuisances without liability for such action.

Source:

S.L. 1967, ch. 212, § 3.

Cross-References.

Public officer’s power to abate public nuisance, see § 42-01-09.

Notes to Decisions

Enforcement.

While this section does not provide the director of DOT with exclusive enforcement authority to enforce N.D.C.C. ch. 24-16, other statutes relating to public nuisances provide that a public nuisance may be abated by any public body or officer, N.D.C.C. § 42-01-09, and by a state’s attorney, N.D.C.C. § 42-02-01; therefore, appellate court concluded that the DOT director had authority to sue junkyard owner to abate the public nuisance created by his junkyard and auto graveyard. Mountrail County v. Hoffman, 2000 ND 49, 607 N.W.2d 901, 2000 N.D. LEXIS 54 (N.D. 2000).

Collateral References.

Public dump as nuisance, 52 A.L.R.2d 1134.

Automobile wrecking yard or place of business as nuisance, 84 A.L.R.2d 653.

Law Reviews.

A Survey of North Dakota Environmental Law, Robert E. Beck, 49 N.D. L. Rev. 1 (1972).

Solid Waste Management in North Dakota, Dean T. Massey, 49 N.D. L. Rev. 499 (1973).

24-16-04. Effect on existing junkyards — Orders of commissioner — Reimbursement.

Junkyards lawfully in existence prior to December 3, 1965, which are or may be screened by natural objects, plantings, fences, or other appropriate means so as not to be visible from the main traveled way of the state highway system must be allowed to remain within one thousand feet [304.8 meters] of the nearest edge of the right of way of any state highway; provided, however, that the owners of the junkyards which are not effectively screened shall take all the steps ordered by the commissioner to effectively screen them. When ordered by the director to screen junkyards lawfully in existence prior to December 3, 1965, the owners must be fully reimbursed for the costs expended pursuant to the director’s order and design. Should the director determine that the effective screening of any junkyard could best be done by state forces or by an independent contractor, the director may use state forces or may let a contract for the screening in the same manner that contracts are let pursuant to this title for construction and reconstruction of the state highway system and the director has the right to enter upon private property for the purpose of screening said junkyards without liability on the director’s part.

Source:

S.L. 1967, ch. 212, § 4.

24-16-05. Order to remove junkyard.

The director may order the removal of any junkyards which cannot be effectively screened within the meaning of this chapter or any junkyard which in the judgment of the director does not subserve the legislative intent as specified in section 24-16-01.

Source:

S.L. 1967, ch. 212, § 5.

24-16-06. Time limitation for removal.

Any junkyard which is within one thousand feet [304.8 meters] of the nearest edge of the right of way and visible from any highway of the state highway system which was lawfully in existence on December 3, 1965, may be maintained in existence until December 3, 1970, unless required to be removed prior thereto by order of the director.

Source:

S.L. 1967, ch. 212, § 6.

24-16-07. Compensation for removal.

Owners of junkyards lawfully in existence on December 3, 1965, which are required to be removed prior to December 3, 1970, by order of the director pursuant to this chapter, must be paid just compensation for the reasonable damages, if any, suffered by reason of such removal between the date of removal and December 3, 1970. Just compensation does not include any relocation or removal costs as specified in section 32-15-22.1; however, costs of removal may be determined to be an element of compensation within the meaning of this chapter.

Source:

S.L. 1967, ch. 212, § 7.

24-16-08. Acquisition of lands.

The director may, if the director deems it necessary to carry out the intent of this chapter, acquire lands used as junkyards by gift, purchase, exchange, or condemnation in fee simple, or such lesser interest as the director deems necessary, and in the acquisition of said lands by condemnation, the director shall use the procedure used for acquiring right of way for the improvement, construction, reconstruction, widening, altering, changing, locating, relocating, aligning, realigning, or maintaining a state highway.

Source:

S.L. 1967, ch. 212, § 8.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

Opening and vacating highways, see N.D.C.C. ch. 24-07.

24-16-09. Director to enforce rules.

The director may adopt and enforce rules for the maintenance of and establishment of junkyards consistent with the national policy set forth in 23 U.S.C. 136 and the national standards promulgated thereunder by the secretary of transportation.

Source:

S.L. 1967, ch. 212, § 9.

24-16-10. Administrative order retroactive.

The administrative order promulgated on December 3, 1965, by the director prohibiting the establishment of junkyards within one thousand feet [304.8 meters] from the nearest edge of the right of way along highways on the state highway system unless the director’s permission is obtained is hereby enacted into law with full force and effect of law, from its issuance on December 3, 1965, the same as if said order was enacted into law by the legislative assembly to take effect as of that date.

Source:

S.L. 1967, ch. 212, § 10.

24-16-11. Certain junkyards allowed.

Notwithstanding any other provision of this chapter, junkyards, automobile graveyards, and scrap metal processing facilities may be operated within areas adjacent to highways which are within one thousand feet [304.8 meters] of the nearest edge of the right of way and which are zoned under the authority of state law or which are not zoned under the authority of state law, but are used for industrial activities as determined by the director.

Source:

S.L. 1967, ch. 212, § 11.

Notes to Decisions

Junkyard Not Allowed.

Although counties have general authority to enact zoning ordinances, a local governing body cannot validly enact a zoning ordinance that contravenes federal or state law; thus, while defendant’s junkyard may not violate any of the County’s zoning ordinances, being in compliance with county ordinances does not mean “zoned under authority of state law”, and therefore, the junkyard did not fall into the exception provided under this section. Mountrail County v. Hoffman, 2000 ND 49, 607 N.W.2d 901, 2000 N.D. LEXIS 54 (N.D. 2000).

24-16-12. Penalty.

Any person who permits a junkyard, as defined in section 24-16-02, to be established on the person’s property in violation of this chapter is guilty of a class A misdemeanor.

Source:

S.L. 1967, ch. 212, § 12; 1975, ch. 106, § 266.

CHAPTER 24-17 Advertising Adjacent to Highways

24-17-01. Declaration of policy.

It is hereby declared to be in the public interest reasonably to regulate advertising devices along the highways hereinafter specified while, at the same time, recognizing that both the convenience of travel and the interests of the economy as a whole require a reasonable freedom to advertise. It is the intention of the legislative assembly in this chapter to provide a statutory basis for the reasonable regulation, but not the prohibition, of outdoor advertising through zoning principles and standards consistent with the public policy relating to the areas adjacent to the state highway system pursuant to 23 U.S.C. 131 and 23 U.S.C. 319 and rules and regulations promulgated thereunder. It is further declared to be in the public interest to review all rights now acquired by the state of North Dakota for the use and benefit of the department of transportation pertaining to the right and control over the erection, location, or maintenance of billboards, signs, or any form of advertising adjacent to the state highway system, to determine and designate such areas adjacent to the state highway system as are necessary for the restoration, preservation, and enhancement of scenic beauty and to vacate to the owner such property rights acquired in areas not so determined and designated.

Source:

S.L. 1967, ch. 291, § 1.

Cross-References.

Advertising signs not to obstruct or resemble railroad crossing signs, see § 24-09-12.

Municipal power to regulate advertising in public places, see § 40-05-01.

Regulation of advertising signs on highways, see § 24-01-12.

Notes to Decisions

Constitutionality of Chapter.

This chapter is not an unconstitutional exercise of police power nor a violation of equal protection, due process or freedom of speech. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

Collateral References.

Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.

Nuisance: billboards and other outdoor advertising signs as civil nuisance, 38 A.L.R.3d 647.

Height of free standing advertising signs, validity of regulations restricting, 56 A.L.R.3d 1207.

Eminent domain: determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

Roof signs, validity and construction of ordinance prohibiting, 76 A.L.R.3d 1162.

Governmental liability for failure to post highway deer crossing warning signs, 59 A.L.R.4th 1217.

Law Reviews.

A Survey of North Dakota Environmental Law, Robert E. Beck, 49 N.D. L. Rev. 1 (1972).

24-17-02. Definitions.

  1. “Commissioner” shall mean the director of the department of transportation of this state or authorized agents as provided in section 24-02-01.3.
  2. “Erect” means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish.
  3. “Maintain” means to exist.
  4. “Outdoor advertising” means a sign, display, or device of any kind or character including statuary, erected or maintained for outdoor advertising purposes, upon which any poster, bill, printing, painting, or other advertisement of any kind whatsoever may be placed for advertising purposes and shall include but not be limited to any card, cloth, paper, metal, painted, or wooden sign of any character placed for outdoor advertising purposes, on or affixed to the ground or any tree, wall, bush, rock, fence, building, structure, or thing, either privately or publicly owned. The terms “sign, display, or device” comprehend all forms of outdoor advertising and the use of one such term in this chapter includes all forms of outdoor advertising.
  5. “Political sign” means a temporary sign erected on private property, which includes signs which solicit votes or support for, or in opposition to, any candidate or any political party under whose designation any candidate is seeking nomination or election. Political signs may also contain messages concerning any public question on the ballot in an election held under the laws of the state. Political signs do not include signs which have been issued a legal billboard permit by a city, county, or the state of North Dakota.
  6. “State highway system” shall mean the state highway system as defined in subsection 45 of section 24-01-01.1.

Source:

S.L. 1967, ch. 291, § 2; 1983, ch. 311, § 1; 1989, ch. 72, § 12; 2011, ch. 202, § 1.

Cross-References.

Word defined by statute always has same meaning, see § 1-01-09.

24-17-03. Outdoor advertising distance limitations.

Subject to this chapter, after January 1, 1968, or any later date established by the Congress of the United States in relation to 23 U.S.C. 131, or waiver of that date pursuant to title 23 of the United States Code, no sign may be erected or maintained within six hundred sixty feet [201.17 meters] from the nearest edge of the right of way and visible from the main traveled way of any highway that is a part of the state highway system in this state except the following:

  1. Official signs and notices and directional signs and notices, including signs and notices pertaining to natural wonders, scenic and historic attractions, and outdoor recreational areas subject to the national standards to be promulgated by the secretary of transportation.
  2. Signs advertising the sale or lease of property upon which they are located.
  3. Signs specifically advertising activities conducted, services rendered, goods sold, stored, produced, or mined, or the name of the enterprise that is located on property used for the purpose advertised or on property contiguous to the advertised activity which is under the same ownership, lease, rent, or control as the property with the advertised activity.
  4. Signs in unzoned commercial or industrial areas, which now or hereafter qualify as such, pursuant to the agreement between the director and the secretary of transportation according to 23 U.S.C. 131.
  5. Signs relocated by reason of the construction or reconstruction of the state highway system.
  6. Official highway signs within interstate rights of way giving specific information for the traveling public pursuant to 23 U.S.C. 131(f) and the rules and regulations promulgated thereunder.
  7. Signs calling attention to the location of buried utility lines.
  8. Political signs temporarily installed on private property, providing the signs do not include any form of commercial advertising.

Source:

S.L. 1967, ch. 291, § 3; 1969, ch. 267, § 1; 1975, ch. 244, § 1; 1977, ch. 238, § 2; 1983, ch. 311, § 3; 1995, ch. 264, § 1; 2011, ch. 202, § 2.

Notes to Decisions

Prohibitory and Regulatory Provisions.

The prohibitory and regulatory provisions of this act became effective January 1, 1968. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

24-17-03.1. Outdoor advertising beyond distance limitations.

Subject to the provisions of this chapter, no sign may, after July 1, 1977, be erected or maintained beyond six hundred sixty feet [201.17 meters] from the nearest edge of the right of way, located outside of urban areas, visible from the main traveled way of the highway system, and erected with the purpose of their message being read from such main traveled way except the following:

  1. Directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic, and historical attractions which are required or authorized by law.
  2. Signs, displays, and devices advertising the sale or lease of property upon which they are located.
  3. Signs, displays, and devices advertising activities conducted on the property on which they are located.

Source:

S.L. 1977, ch. 238, § 1.

24-17-04. Removal of signs. [Repealed]

Repealed by S.L. 1983, ch. 311, § 10.

24-17-05. Compensation for removal of signs.

The director is directed to acquire by purchase, gift, condemnation, or exchange, signs lawfully erected which do not conform to this chapter or the rules established by the director. Owners of advertising structures, signs, displays, or devices acquired by the director pursuant to this section, and the owners of the land upon which such displays are located must be paid just compensation for the reasonable damages, if any, suffered by the reason of such removal.

Just compensation must be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected and maintained under state law, provided that federal matching funds are appropriated, allotted, and made available to this state under title 23, United States Code, for the purpose of providing just compensation for the removal of such signs, displays, or devices. A municipality, county or local zoning authority, or political subdivision may not remove or cause to be removed any advertising structures, except such structures that encroach upon the right of way, without paying compensation in accordance with this section.

Source:

S.L. 1967, ch. 291, § 5; 1975, ch. 244, § 2; 1983, ch. 311, § 4.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

Notes to Decisions

Abandoned Signs.

Trial court did not err in determining that signs which were destroyed by the elements or vandalism and not reconstructed within one year, or which contained no advertising copy for one year, were abandoned and noncompensable. Newman Signs v. Hjelle, 317 N.W.2d 810, 1982 N.D. LEXIS 257 (N.D. 1982).

Expansion, Reconstruction or Alteration of Nonconforming Sign.

State was not required to compensate nonconforming sign owner on removal of the sign for the value of the sign due to expansion, reconstruction or substantial alteration made during the five-year amortization period provided in former section 24-17-04. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

Compensation for signs lawfully erected prior to January 1, 1968, which were subsequently expanded or substantially altered, was limited to the value of the signs prior to expansion or alteration. Newman Signs v. Hjelle, 317 N.W.2d 810, 1982 N.D. LEXIS 257 (N.D. 1982).

Collateral References.

Determination of just compensation for condemnation of billboards or other advertising signs, 73 A.L.R.3d 1122.

24-17-06. Highway corridor board — Members. [Repealed]

Repealed by S.L. 1983, ch. 311, § 10.

24-17-07. Organization of the board. [Repealed]

Repealed by S.L. 1983, ch. 311, § 10.

24-17-08. Compensation of board members. [Repealed]

Repealed by S.L. 1983, ch. 311, § 10.

24-17-08.1. Agreement between board and secretary of transportation ratified.

The agreement between the board and the secretary of transportation, dated January 31, 1972, is hereby ratified on behalf of the director who shall succeed to the board’s obligations, duties, and authority under said agreement.

Source:

S.L. 1983, ch. 311, § 2.

24-17-09. Duties and powers of the director.

  1. The director is authorized:
    1. To designate tracts of land adjacent to the state highway system which are necessary for the restoration, preservation, and enhancement of scenic beauty.
    2. To regulate the erection, construction, or placing of any sign, display, or device within six hundred sixty feet [201.17 meters] of the nearest edge of the right of way and to adopt standards relating to size, lighting, and spacing thereof in conformity with 23 U.S.C. 131, provided the rules are not more restrictive than those provided thereunder.
    3. To establish permits authorizing the erection, construction, placement, replacement, repair, and maintenance of any outdoor sign, display, or device, which is within six hundred sixty feet [201.17 meters] of the nearest edge of the right of way and visible from any place on the main traveled way of the state highway system; to establish a fee schedule for such permits and to prescribe rules for the issuance thereof.
    4. To determine unzoned commercial or unzoned industrial areas along the state highway system by agreement with the secretary of transportation of the United States pursuant to 23 U.S.C. 131.
    5. The director may designate which tracts of land are necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to the state highway system. The director shall acquire, improve, and maintain said tracts of land the director deems necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to the state highway system, and said tracts of land may be beyond six hundred sixty feet [201.17 meters] of the nearest edge of the right of way.
  2. The interest in any land directed to be acquired and maintained under this section may be a fee simple or any lesser interest, as determined by the director to be reasonably necessary to accomplish the purposes of this section. The acquisition may be by gift, purchase, exchange, or, subject to section 32-15-01, condemnation under the right and power of eminent domain in the same manner that the director may acquire right of way for construction, reconstruction, widening, alteration, changing, locating, relocating, aligning, realigning, or maintaining a state highway.

Source:

S.L. 1967, ch. 291, § 9; 1983, ch. 311, § 5; 2007, ch. 293, § 15.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

Opening and vacating highway, see N.D.C.C. ch. 24-07.

Notes to Decisions

Rights of Lessees of Signs.

Where sign owners agreed, as a condition for receiving permits, to remove signs upon the expiration of the permits or any renewal period (irrespective of whether interim permitted signs were illegal or were in another category of priority for removal), the advertisers who leased advertising space on the signs did not have a clear legal right to require the Commissioner to keep the signs in place after he required sign owners to remove them. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Adoption of Rules.

The Administrative Agencies Practice Act, chapter 28-32, does not apply to the adoption of rules and regulations under the Highway Beautification Act, chapter 24-17. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

24-17-10. Rules.

The director may adopt the rules necessary to accomplish the purpose of this chapter and to comply with 23 U.S.C. 131, pursuant to chapter 28-32.

Source:

S.L. 1967, ch. 291, § 10; 1981, ch. 336, § 21; 1983, ch. 311, § 6.

Notes to Decisions

Rights of Lessees of Signs.

Where sign owners agreed, as a condition for receiving permits, to remove signs upon the expiration of the permits or any renewal period (irrespective of whether interim permitted signs were illegal or were in another category of priority for removal), the advertisers who leased advertising space on the signs did not have a clear legal right to require the Commissioner to keep the signs in place after he required sign owners to remove them. Old Broadway Corp. v. Backes, 450 N.W.2d 734, 1990 N.D. LEXIS 5 (N.D. 1990).

DECISIONS UNDER PRIOR LAW

Adoption of Rules.

The procedures in the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, for adoption of rules and regulations do not apply to the adoption of rules and regulations under the Highway Beautification Act, N.D.C.C. ch. 24-17. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

The provisions of former sections 24-17-13 and 24-17-14 governed over the conflicting provisions in this section for the procedure in the adoption of rules and regulations. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

24-17-11. Unlawful advertising.

Any advertising sign which violates the provisions of this chapter or the rules adopted by the director is hereby declared to be illegal. The director shall give thirty days’ notice, by certified mail, to the owner thereof to remove the same if it is a prohibited sign, or cause it to conform to rules promulgated by the director if it is an authorized sign. If the owner fails to act within thirty days as required in the notice, or if the director is unable to ascertain the ownership of the sign, then such sign must be deemed abandoned and the director may remove such sign, and to this end the director may enter upon private property for the purpose of removing such sign without liability for the director’s actions.

Source:

S.L. 1967, ch. 291, § 11; 1983, ch. 311, § 7.

24-17-12. Enforcement.

The director shall enforce the provisions of this chapter and the rules adopted by the director through the remedy of injunction or other appropriate legal proceedings, and may not act except through such proceedings, except as set forth in section 24-17-11. Neither the director nor any other agency nor political subdivision of this state may, by plantings, obstruct the view or in any other way interfere with the effectiveness of any sign legally in place under the provisions of this chapter and the rules adopted by the director.

Source:

S.L. 1967, ch. 291, § 12; 1983, ch. 311, § 8.

24-17-13. Hearings. [Repealed]

Repealed by S.L. 1981, ch. 336, § 24.

24-17-14. Publication of resolutions, rules or regulations. [Repealed]

Repealed by S.L. 1981, ch. 336, § 24.

24-17-15. Appeals to district court — Application of chapter 28-32.

Any person or persons, jointly and severally, aggrieved by a decision of the director under this chapter may appeal therefrom to the district court pursuant to chapter 28-32.

Source:

S.L. 1967, ch. 291, § 15; 1981, ch. 336, § 22; 1983, ch. 311, § 9.

Notes to Decisions

Applicability of Appeal Provisions.

Where board had delegated its authority to issue permits for the erection of advertising signs along interstate highways to the state highway commissioner, the effect of a denial of a permit by the commissioner was a denial of a permit by the board and the appeal provisions of this section were applicable. Newman Signs v. Hjelle, 300 N.W.2d 860, 1980 N.D. LEXIS 343 (N.D. 1980).

DECISIONS UNDER PRIOR LAW

Practice.

Except as to appeals, this section makes the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, inapplicable to proceedings under the Highway Beautification Act, chapter 24-17. Newman Signs v. Hjelle, 268 N.W.2d 741, 1978 N.D. LEXIS 137 (N.D. 1978).

CHAPTER 24-18 Limited Transportation Network

24-18-01. Primary network.

The department of transportation shall establish a limited transportation network within this state. The initial network consists of selected highways and the interstate system to serve as the foundation for this system. The department may modify the foundation through a public involvement process established by the department. The foundation for the system consists of:

  1. United States highway 83 from the South Dakota border to Minot;
  2. United States highway 85 from the South Dakota border to Williston;
  3. United States highway 52 from Minot to the Canadian border;
  4. United States highway 2 from the Montana border to the Minnesota border;
  5. Interstate highway 94 from the Montana border to the Minnesota border, subject to federal approval; and
  6. Interstate highway 29 from the South Dakota border to the Canadian border, subject to federal approval.

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.

24-18-02. Process for modification.

  1. The department of transportation shall establish a process to adjust the network by adding specific segments of the United States or state highway system. The process must include an advisory committee to provide input to the department in actions taken to adjust the system, taking into consideration the economic needs and benefits, investment and maintenance requirements, and safety.
  2. The department shall establish a request mechanism for commercial entities and for individuals who reside in the state to request specific augmentations of the system based on economic need and outcomes.

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.

24-18-03. Advisory committee.

  1. The advisory committee must be chaired by the director of the department of transportation or a designee of the director and must consist of a representative appointed by:
    1. The greater North Dakota chamber;
    2. The North Dakota association of counties;
    3. The agriculture commissioner;
    4. The commerce commissioner;
    5. The superintendent of the highway patrol;
    6. The North Dakota motor carriers association;
    7. The North Dakota league of cities; and
    8. Representatives of short line railroads operating in this state.
  2. The committee may be augmented by the department as deemed necessary in consultation with the advisory committee.

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.

24-18-04. Conditional approval for interstate highway system within North Dakota.

The department may include the interstate highway system within the state as part of the primary foundation network if approved through passage of legislation by the Congress of the United States.

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.

24-18-05. Authority to establish truck axle configuration and weight limits associated with the one hundred twenty-nine thousand pound network.

Notwithstanding any other provision of law, the department of transportation, in consultation with the advisory committee, may adopt rules to establish the required axle configurations and weight limit requirements for trucks weighing more than one hundred five thousand five hundred pounds [47854 kilograms] utilizing the network established by this chapter.

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.

24-18-06. Preservation of existing truck weight provisions.

This chapter does not modify or authorize any change to the existing weight limitations for trucks with gross vehicle weight up to one hundred five thousand five hundred pounds [47854 kilograms].

Source:

S.L. 2017, ch. 206, § 1, effective July 1, 2017.