Eminent Domain in South Dakota: The Property Owner’s Guide

South Dakota has the strongest owner side eminent domain law of any state in this guide series, and it has been getting stronger. The state banned economic development takings outright in 2006, added a right of first refusal for former owners, built a twenty percent fee shifting rule into the condemnation chapter, and in 2025 removed carbon pipelines from the power altogether. If you are a South Dakota landowner facing condemnation, the statutes are working in your favor more than they would almost anywhere else.

The law that governs takings in South Dakota

The core procedure is SDCL Title 21, Chapter 35, Condemnation Under Power of Eminent Domain. Section 21-35-1 sets the frame: any person, group, or corporation, public or private, that is invested with the privilege of taking or damaging private property for public use must file a petition in the circuit court for the county where the property sits, praying that the just compensation to be made for the property be ascertained by a jury.

Highway acquisitions add Chapter 31-19, Acquisition of Land and Materials for Highway Purposes. Chapter 31-19 is expressly cumulative with the general condemnation rules and supplies the immediate taking and declaration of taking mechanics, the vesting of title in the state or municipality, and the terms for surrender of possession.

The substantive limits sit in Chapter 11-7 and, since 2025, in Chapter 49-7. Section 11-7-22.1 provides that no county, municipality, or housing and redevelopment commission may acquire private property by eminent domain for transfer to any private person, nongovernmental entity, or other public private business entity. Section 11-7-22.2 adds that such a body may not transfer any fee interest acquired by the use or threat of eminent domain to a private party within seven years without first offering to sell it back to the original owner, or that owner’s heirs or assigns, at current fair market value.

Who can take property in South Dakota

The South Dakota Department of Transportation, counties, townships, and municipalities condemn for roads, bridges, drainage, and utilities. Rural water systems, electric cooperatives, and investor owned utilities hold condemnation authority. School districts and other public bodies condemn for their own facilities.

Private corporations can hold the power too. Section 21-35-1 expressly reaches corporations, public or private, including owners of water rights, ditches, flumes, reservoirs, and mining property under federal law. Pipeline companies have historically condemned easements in South Dakota, which is what made the 2025 legislation significant.

On March 6, 2025, Governor Larry Rhoden signed House Bill 1052, which adds a section to Chapter 49-7 prohibiting any person or entity from using eminent domain to obtain land rights for, construct, or operate a pipeline primarily designed to transport carbon oxide. Landowners in the path of a carbon capture pipeline no longer face condemnation as a negotiating backdrop.

The condemnation process in South Dakota, step by step

A South Dakota condemnation begins with the condemnor filing a petition in circuit court in the county where the property is located, asking that a jury ascertain just compensation. There is no administrative commission stage and no board of viewers. The case is a civil action in the circuit court from the start.

Before filing, condemnors typically appraise the property and make a written offer. That offer matters later, because the fee shifting rule measures the eventual award against the condemnor’s final offer.

Section 21-35-11 governs an offer to deposit compensation with the clerk, and provides that evidence of the offer is not admissible and that costs may be avoided by it. The deposit mechanism is how condemnors limit their exposure to costs while the valuation dispute proceeds.

The valuation issue is tried to a jury. Because the petition itself asks for a jury determination, an owner does not have to demand a jury trial separately the way an owner does in some states.

Possession and deposits

South Dakota is not a general quick take state under Chapter 21-35. The immediate taking machinery lives in Chapter 31-19 for highway purposes, which includes procedures to effect an immediate taking or declaration of taking, provisions vesting title in the state or a municipality, and terms governing surrender of possession.

For a highway project, expect the state or municipality to be able to obtain possession before value is fixed, subject to the deposit and procedural requirements of Chapter 31-19. Outside that context, a condemnor generally proceeds through the ordinary Chapter 21-35 action.

That difference matters to timing. On a Department of Transportation project the construction schedule is unlikely to wait for your valuation case. On a private utility or district taking, the leverage is more balanced.

What just compensation includes in South Dakota

Just compensation in South Dakota is the fair market value of the property taken, and where only part of a tract is taken, the damage to the remainder. The statutory phrase in § 21-35-1 is taking or damaging private property, and the damaging language does real work in South Dakota, reaching harms to the remainder that do not involve a physical taking of it.

Highest and best use governs valuation. Agricultural land with development potential, a tract split by a new right of way so that the balance is hard to farm, and a commercial parcel that loses its access point are all situations where the difference between the condemnor’s number and a properly supported appraisal is large.

South Dakota does not compensate lost business profits or business goodwill as a separate element. Recovery is anchored to the real estate and to fixtures that have become part of it.

Relocation assistance and moving costs

Federally assisted projects, including most Department of Transportation work, trigger relocation assistance under the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act. That provides moving expense payments, replacement housing payments, and reestablishment expenses for displaced businesses.

These payments are separate from the jury’s compensation award and are handled administratively by the acquiring agency. They are not automatic, and a condemnation settlement does not resolve them. If you are being displaced from a home or a business, ask the agency in writing what relocation benefits it has determined you are eligible for, and keep the documentation.

Deadlines that protect your rights in South Dakota

South Dakota does not impose a single short deadline on owners the way states with a fixed appeal window do. The condemnor initiates the action, and the owner responds within the ordinary civil rules once served.

The dates that matter most are the ones that define the fee shifting comparison. The condemnor’s final offer is the benchmark against which the jury award is measured for the twenty percent rule, so the timing and amount of each written offer should be recorded carefully. So should the date the offer was communicated and whether it was superseded.

If the condemnor moves to dismiss the proceeding, that triggers its own liability for costs, expenses, and reasonable attorney fees, so the owner should not treat a dismissal as simply the end of the matter.

How to fight a taking in South Dakota

The twenty percent rule is the center of gravity in South Dakota condemnation strategy. Under SDCL § 21-35-23, if the just compensation awarded to a landowner is twenty percent greater than the condemning authority’s final offer, the landowner may recover reasonable attorney fees and compensation for not more than two expert witnesses. The final offer must have been greater than seven hundred dollars for the fee award to apply.

A prevailing landowner may also recover expenses necessarily incurred in gathering and procuring evidence and bringing the matter to trial, including witness fees, interpreters, service of process, filing fees, copying, deposition transcripts and reporter attendance fees, court appointed experts, and similar charges.

Dismissal carries its own consequence. If eminent domain proceedings are commenced to take or damage private property for public use and are thereafter dismissed, with or without prejudice, the party seeking to condemn is liable for and must pay the defendant all court costs, expenses, and fees, including reasonable attorney fees, as determined by the court.

On the right to take, the 2006 legislation gives owners a clean argument that most states do not have. Section 11-7-22.1 contains no economic development exception and no blight workaround, which is why the Institute for Justice graded South Dakota an A after the reforms. If a county, municipality, or redevelopment commission is condemning your property and the end user is a private entity, that is a threshold question worth litigating before the case becomes an argument about price.

Before you sign anything

Get the condemnor’s appraisal and get your own before you respond to a final offer, because that offer sets the twenty percent benchmark for the rest of the case. Keep every written offer and note its date.

If the condemnor is a county, municipality, or housing and redevelopment commission, ask who will own or use the property when the project is finished. If the answer involves a private entity, § 11-7-22.1 may end the taking before valuation is ever reached. And if the project is a carbon oxide pipeline, the power to condemn no longer exists in South Dakota at all.

Frequently asked questions

When does South Dakota make the condemnor pay my attorney fees?

Under SDCL § 21-35-23, if the just compensation awarded is twenty percent greater than the condemning authority’s final offer, the landowner may recover reasonable attorney fees and compensation for not more than two expert witnesses. The condemning authority’s final offer must have been greater than seven hundred dollars. Separately, if the condemnor dismisses the proceeding with or without prejudice, it must pay all court costs, expenses, and fees, including reasonable attorney fees.

Do I get a jury in a South Dakota condemnation case?

Yes, and you do not have to ask for one. SDCL § 21-35-1 requires the condemnor to file a petition in the circuit court for the county where the property sits praying that the just compensation to be made for the property be ascertained by a jury. The jury determination is built into the opening filing rather than being something the owner demands later.

Can South Dakota take my property and give it to a private company?

Generally no. SDCL § 11-7-22.1, enacted in 2006, provides that no county, municipality, or housing and redevelopment commission may acquire private property by eminent domain for transfer to any private person, nongovernmental entity, or other public private business entity. Section 11-7-22.2 adds that if such a body transfers property acquired by the use or threat of eminent domain within seven years, it must first offer to sell it back to the original owner at current fair market value.

Can a carbon pipeline use eminent domain in South Dakota?

No. On March 6, 2025, Governor Larry Rhoden signed House Bill 1052, which adds a section to Chapter 49-7 prohibiting the use of eminent domain to obtain land rights for, construct, or operate a pipeline primarily designed to transport carbon oxide. The law removes condemnation as an option for carbon capture pipeline projects in South Dakota.

Can the state take possession of my land before the jury decides value?

It depends on the project. Chapter 21-35, the general condemnation chapter, does not give condemnors a broad quick take power. Chapter 31-19, which covers acquisition of land for highway purposes, includes procedures to effect an immediate taking or declaration of taking, vesting of title in the state or municipality, and terms for surrender of possession. On a highway project, expect possession to precede the valuation trial.