August 19, 1991
Glenn L. Roth
Hutchinson County State's Attorney
P.O. Box 137
Olivet, SD 57052-0137
OFFICIAL OPINION NO. 91-14
Drainage district vested right filings
Dear Mr. Roth:
You have requested an official opinion from this office in regard to the following factual situation:
Hutchinson County had several drainage districts that were established during the 1910 to 1930 time period. Each drainage ditch was filed in the county auditor's office under the old law establishing these drainage ditches. These ditches run through several sections of land and affect several landowners. SDCL 46A-10A-31 as amended this past legislative session requires the recording of vested drainage rights by July 1, 1992, otherwise these drainage rights are extinguished. SDCL 46A-10A-43 allows drainage districts established three years prior to July 1, 1985 to continue in existence. Questions have arisen concerning whether drainage districts must record such rights and if so, the appropriate entity or person to file the vested drainage right--the drainage district, the individual landowners served by the ditches, or the county auditor.
Based on these facts, you have asked the following questions:
QUESTIONS:
1. In spite of SDCL 46A-10A-43, are landowners in a drainage district established three (3) years prior to July 1, 1985, required to record their existing drainage rights of the drainage ditch under SDCL 46A-10-A-31, in order to become vested?
2. If the answer to the first question is yes, is it the county auditor's duty to record the drainage district specifications with the Register of Deeds, or is it up to the individual landowner to record his or her drainage rights of the drainage ditch?
3. If it is the duty of the county auditor to make the vested rights filing, who bears the cost of doing so, like recording costs and legal work?
IN RE QUESTION NO. 1:
In 1985 the Legislature undertook a revision of the state's drainage laws and placed a wide array of powers over the drainage of agricultural lands with county government. Because drainage rights can be vested property rights, the taking of which would require just compensation, a provision was included that would help the county identify what drainage rights were claimed in each county. SDCL 46A-10A-31 provides that a "drainage right lawfully acquired prior to July 1, 1985, arising from drainage which is natural with man-made modifications or entirely man-made" is deemed vested if the landowner records the right with the register of deeds within six years of July 1, 1985. The 1991 Legislature extended the filing deadline until July 1, 1992. No filing is necessary to protect a natural drainage right.
As part of that same 1985 legislation, it was provided that certain drainage districts established under pre-1985 statutes could continue to exist. SDCL 46A-10A-43 provides in pertinent part:
Any drainage district established under the laws of this state that has functioned in its capacity as a drainage district within three years prior to July 1, 1985 or that has assessed real property in its capacity as a drainage district within three years prior to July 1, 1985 shall be allowed to continue in that status. . . .
With reference to such districts, it was also provided that "[t]he provisions of this chapter may affect drainage districts only as outlined under provisions of 46A-10A-43." SDCL 46A-10A-8. Your first inquiry seeks to determine how these three statutes fit together. In short, is a drainage district which satisfies the requirements of SDCL 46A-10A-43 excused from filing vested rights pursuant to SDCL 46A-10A-31 by virtue of SDCL 46A-10A-8? In my opinion it is.
First it is important to identify what the Legislature meant by the term "drainage district." It appears that there are two types of situations covered. Under pre-1985 law, it was possible for the board of county commissioners to create (pursuant to landowner petition) a drainage district, construct the project, and serve as the governing board of the district. See generally, SDCL ch. 46A-10 (repealed 1985). It was also possible, at least after 1955, for the management of a drainage district to be handled by a board of trustees. See SDCL ch. 46A-12 (repealed 1985). The powers exercised by the trustees were the same as those exercised by the county commissioners. SDCL 46A-10-26 (repealed 1985).
If either type of drainage district was functioning as a district or was making assessments in the three years prior to July 1, 1985, then SDCL 46A-10A-43 provides that such a district can continue in that status. That section also allows the district to dissolve by majority vote at a general election. Assuming a qualified district has not elected to dissolve, the question becomes whether it or its landowners must comply with SDCL 46A-10A-31 in order to protect the drainage rights in the district.
Under pre-1985 drainage law, those drainage rights should be recorded and indexed in a book kept in the county auditor's office. SDCL 46A-10-20 (repealed 1985). If only SDCL 46A-10A-31 was to be considered, it would be my opinion that either the district, or the individual landowners, whichever was the "owner or owners of either a dominant or servient estate," should record the rights with the register of deeds as well. It is not permissible, however, to view that statute in isolation; legislative intent is to be garnered from the statutory scheme as a whole. In Re Cancellation of the Stabio Ditch Water Right, 417 N.W.2d 391 (S.D. 1987). When SDCL 46A-10A-43 is viewed in light of the last sentence of SDCL 46A-10A-8, it is my opinion that a drainage district is not required to make a filing under SDCL 46A-10A-31 in order to protect its vested drainage rights.
The pertinent part of SDCL 46A-10A-8 provides that SDCL ch. 46A-10A applies to drainage districts only to the extent set forth in SDCL 46A-10A-43. Giving the words used in those statutes their plain meaning, I am forced to conclude that the Legislature intended to leave a functioning drainage district unaffected by the 1985 drainage laws, including the requirement of filing vested rights. Thus, while the drainage district may want to comply with SDCL 46A-10A-31 to avoid any possible challenge, it is my opinion that it is not required to do so. My answer to your first question is NO.
IN RE QUESTIONS NO. 2 AND 3:
In light of my answer to your first question, it is not necessary to address your last two inquiries. I would simply point out that should the district wish to make a filing under SDCL 46A-10A-31, it should be the "owner or owners of either a dominant or servient estate" who should make the filing. "Owner" is defined at SDCL 46A-10A-1(11). I note that there was a variety of ways in which the board of county commissioners could acquire ditches under pre-1985 drainage statutes. SDCL 46A-10-17 (repealed). In cases where the district is the "owner," it appears to be appropriate for the county auditor to make the filing, and recoup the costs through the assessment system; if the district has trustees, I assume filing would be their obligation. In instances where the district is not the "owner," or chooses not to make a filing, the individual landowners may choose to file, at their own expense, in case the district someday decides to dissolve.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
MB:HHD:do
