This page addresses some of the questions that arise about public access to undeveloped section lines in rural North Dakota, for example, a section line that has perhaps no more than an unimproved path for vehicles.  Common questions include

• Can the adjacent landowner construct a fence along the section line? 
• Can the landowner construct a fence or gate across the section line? 
• Can the landowner till across the section line?
• Can the landowner be required by local government to remove obstacles from the section line, such as a fence, trees, or large rocks?
• Must someone driving along a section line close a gate that crosses the section line?

The general rule is that section lines are considered public roadways open for public travel. However, local government (that is, the board of county commissioners or township supervisors) can take action to close a section line.

This page provides a brief overview of North Dakota laws for section lines.  The material includes references to and excerpts from several North Dakota statutes.

Section Lines are Public Roads

North Dakota considers section lines as public roads open for public travel and are defined as being 66 feet wide.

In all townships in this state, ... the congressional section lines are considered public roads open for public travel to the width of thirty-three feet on each side of the section lines… (N.D.C.C. §24-07-03).

January 2009 opinion of the North Dakota Attorney General addressing several legal issues pertaining to section lines as public roadways, see http://www.ag.nd.gov/documents/2009-L-01.pdf.

Public Ways Cannot be Obstructed

The status of a public road offers section lines some legal protections, primarily the roadway cannot be obstructed.  For example, North Dakota law specifies that "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 … any public highway or right of way …
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 … a board, pole, or other suitable protection, to be at least sixteen feet … in length; or
4. Plow up a section line in a manner so as to obstruct usual travel on the section line.
(N.D.C.C. §24-12-02).

Any person who intentionally obstructs a public way is subject to a penalty (N.D.C.C. §24-12-05).

North Dakota law also has several statutes that specifically prohibit section lines from being obstructed; but note that the statute also provides an exception, that is, an obsruction can be placed in a section line if the board of county commissioners or township supervisors grants permission.

No person may place ... any permanent obstruction [including a fence], stones, trees, or rubbish within thirty-three feet of any section line, unless written permission is first secured from the board of county commissioners or the board of township supervisors … (N.D.C.C. §24-06-28(1)).

The permission [to place a permanent obstruction, such as a fence, within thirty-three feet of a section line] must be granted where the section line has been closed … 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, … the construction of a road on the section line is impracticable (N.D.C.C. §24-06-28(1)).

Thus one alternative is for the landowner to request that the section line be closed.  This statute also makes it clear that the authority to close a section line lies with the county commissioners or the township board of supervisors.  Consider the following state statutes.

Closing a Section Line

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 … (N.D.C.C. §24-07-03).

The board having jurisdiction … may alter or discontinue any 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 … Said petition must set forth in writing a description of the road and what part thereof is to be altered or discontinued … (N.D.C.C. §24-07-05).

… all proceedings for … vacating, or changing of a highway outside of the limits of an incorporated city … must be [made by] … 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 … (N.D.C.C. §24-07-04).

The status of a section line (that is, whether it has been closed) should be a matter of public record. Interested persons should contact the board of county commissioners or township supervisors. There is nothing in the statute that requires a fence crossing a closed section line must contain a gate.

Building a Fence Within 33 Feet or Across a Section Line

As already described, the statutes define an exception to the general rule that section lines are open for public travel; that is, the exception allows for section lines to be closed.  This exception confirms that there are situations when a fence can be built across or within 33 feet of a section line.  The following statute clarifies and expands the exception to include allowing cattle guards to be placed across a section line.

[The prohibition against placing a permanent obstruction within a section line (N.D.C.C. §24-06-28(1))] may not be construed to prohibit construction of fences:
a. Along or across section lines which have been closed … or which have not been opened because construction of a road is impracticable due to the topography of the land along the section line...
b. Across section lines which have not been closed … if cattle guards are provided in accordance with chapter 24-10... (N.D.C.C. §24-06-28(2)).

Cattle Guard Across Section Line

Whenever the erection of cattle guards is necessary to ... cross a section line pursuant to section 24-06-28, the board of county commissioners ... or the board of township supervisors ... may issue permission ... to erect a cattle guard and gateway across the ... section line upon the conditions hereinafter prescribed (N.D.C.C. §24-10-01).

Before any cattle guard and gateway may be erected across any highway or section line, … the board of county commissioners or board of township supervisors ... 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 from and plainly visible to persons approaching the cattle guard upon the ... 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 ... 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 ...  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 ... section line (N.D.C.C. §24-10-02).

Other than these exceptions, the general rule prohibits fences from being constructed within 33 feet or across section lines.

Is there an alternative to having the section line closed?

A board [or commission] … may designate a road … as a minimum maintenance road … The designation may be made only if the board or governing body determines that the road … 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 … (N.D.C.C. §24-07-35).

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 (N.D.C.C. §24-07-36).

But a minimum maintenance designation does not authorize the landowner to construct a fence across a section line; it simply reduces the obligation of the county to maintain the path.  Having the road designated as minimum maintenance does not offer the landowner a viable alternative to having the section line closed.

Enforcement

We know the general rule and we know several exceptions, but how is the law enforced?

If any person places or causes to be placed any stones, trees, or rubbish within thirty-three feet … of any section line, the board of county commissioners or board of township supervisors … shall notify the owners of adjacent property to remove the stones, trees, or rubbish.  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 stones, trees, or rubbish within thirty days after the notice is mailed, the board of county commissioners or the board of township supervisors … shall remove the stones, trees, or rubbish.  The cost of removal must be entered the same as taxes against the adjacent property and paid in the same manner as taxes (N.D.C.C. §24-06-29).

Notice and Removal of Fences

When a public highway is opened along any section line, the board of county commissioners or the board of township supervisors … shall notify the owner of adjacent property [by registered mail sent to the last-known address of the record owner and to any other persons in possession of the property] to remove any fences not constructed pursuant to subsection 2 of section 24-06-28 within thirty-three feet of the section line ...  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 (N.D.C.C. §24-06-30).

Similarly, a landowner cannot encroach on any county roadway.

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 (N.D.C.C. §24-05-23).

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 (N.D.C.C. §24-05-24).

Fence and Gate cannot be destroyed; gate must be closed

The discussion has addressed the rules for the landowner, but are there any rules for the traveling public?

… any person who damages any fence or who opens and fails to close any gate constructed under [N.D.C.C. §24-06-28(2)] is guilty of an infraction (N.D.C.C. §24-06-28(3)).

This statute does not answer the question of whether someone can destroy a fence or gate that is improperly placed along or across a section line.  The best solution is for the aggrieved person to assume the fence and gate are valid, that is, do not destroy them or leave the gate open.  However, the person should then contact the county or township to assure the local government is aware of the situation and to have the local authority pursue the issue. If necessary, the person can take formal legal action against the county or township. For example, see Ames v. Rose Township Board of Township Supervisors, 502 N.W.2d 845 (N.D. 1993).

Similar North Dakota statutes state

A person who opens a gate … enclosing farm premises shall not leave such gate … open unless that person is in lawful possession of the premises (N.D.C.C. §47-27-01).  Anyone who [violates this statute] shall be guilty of a class B misdemeanor and, in addition, shall be civilly liable for any damages that may result, directly or indirectly (N.D.C.C. §47-27-03).

Court Cases

It is also helpful to review court decisions that have addressed similar legal issues.  For example,

Unless closed by board action, congressional section lines outside platted subdivisions are public roads, open to a width of thirty-three feet on each side.  NDCC 24-07-03; State v. Silseth, 399 N.W.2d 868, 869 (N.D. 1987).  Obstruction of a public highway without written permission is prohibited, and may result in criminal liability.  NDCC 24-12-02; Silseth at 869-70.  The placement of permanent obstructions, stones, or rubbish on a section line easement, without permission from the county commissioners, is also prohibited.  NDCC 24-06-28.  Still, not every obstruction jeopardizes the public's right of travel.

A landowner abutting an open section line retains ownership of the property within the easement, subject to the public's right to travel.  Small v. Burleigh County, 225 N.W.2d at 297 … The public's easement is limited to the right to travel, and does not include an absolute right to an object-free zone for the complete length and width of the section line.  In Hjelle, we held that a highway right of way is not "obstructed" when a placement did not impede the public's right of passage. 133 N.W.2d at 630.  We recently held that cattle guards or gateways do not have to be sixty-six feet wide to comply with NDCC 24-07-03, when approved by the board.  Ames v. Rose Township Board of Township Supervisors, 502 N.W.2d 845, 850 (N.D. 1993). Only when an obstruction effectively deprives the public of the ability to travel on an open section line is their right to travel violated.

Burleigh Co. Water Resource Dist. v. Burleigh Co., 510 N.W.2d 624 (N.D. 1994)

Also see Ames v. Rose Township Board of Township Supervisors, 502 N.W.2d 845 (N.D. 1993)

[W]e held in Saetz that "the Legislature did not intend to violate its trust [to hold section lines open for the public] by tolerating fencing in any form which would effectively deprive the public of its right to free passage over section lines.”

Conclusion

Landowners who want to place a fence within 33 feet of a section line, or place a fence, gate, or cattle guard across a section line, should work with their county commissioners or township supervisors.

Last updated January 7, 2009