TITLE 40

HIGHWAYS AND BRIDGES

CHAPTER 23

MISCELLANEOUS PROVISIONS

40-2323.  Abatement of flooding of highways — Right of entry — Court action for abatement. (1) If the owner or occupant of land lying adjacent to or near any highway laid out or constructed, or any other person, shall maintain or cause to be maintained, or allow any dam, dike, or levee across any swale, hollow, or natural water drain or channel, either inside or outside any fence or other enclosure which may enclose the land, and shall thereby cause water to back upon, overflow or accumulate upon the highway, the director of highways of the county or district, or other official having direct supervision of the maintenance of the highway, or any other agent appointed by the respective commissioners, may go upon the premises and at the expense of the county or district install culverts and drains as may be necessary, and in a manner as to cause water to drain from the highway to be carried down its natural channel to some point where it may be disposed of without damage to the highway and adjoining landowners.

(2)  Whenever it is necessary or convenient to do so, in carrying out the provisions of subsection (1) above, the respective commissioners who have by law the general supervision and control of the highway, are empowered to go upon and work upon the lands and premises where the dams, dikes and levees are situated.

(3)  If it is denied that the dam, dike or levee causes water to back up, overflow or accumulate on the highway, or if the owner or occupant of the land, or person causing the dam, dike or levee to be maintained, refuses either to install suitable culverts or drains or does not allow the director of highways or other official having immediate supervision of the maintenance of the highway to do so, then the officer shall report the facts to the appropriate commissioners and they shall commence an action in the proper court to procure culverts or drains to be installed or the dam, dike, or levee abated as a nuisance. If the respective commissioners recover judgment, they may, in addition to having culverts installed or the dam, dike or levee abated as a nuisance, recover fifty dollars ($50.00) for every day the culverts remained uninstalled after the date of rendition of judgment in the action, and may also recover the costs of the action, and in an appropriate action, may also recover the cost and expenses of the installation of culverts or drains and the costs of suit.

History:

[40-2323, added 1985, ch. 253, sec. 2, p. 699.]