47-04-31. Highways, railways, or rights of way - Covenants of warranty

47-04-31. Highways, railways, or rights of way - Covenants of warranty No covenants of warranty shall be considered as broken by the existence of a highway, railway, or a right of way for either, upon the land conveyed by any instrument of conveyance, unless otherwise particularly specified in the deed. Whenever in any instrument of conveyance delivered, filed, and recorded prior to the first day of January 1896, the grantor has conveyed real property in this state, but has reserved or sought to reserve a right of way over or across the same for the future construction of any railroad or highway without specifically locating or describing therein by metes and bounds such right of way, or proposed right of way, or by reference to permanent marks or monuments, such reservation shall be void in all things, and such conveyance shall have the same effect as if no such reservation had been made or attempted to have been made therein unless on July 1, 1907: 1. The grantor or the grantor's successor in interest was in actual possession of, or had located and permanently marked said right of way; 2. Within one year thereafter filed or caused to be filed in the office of the recorder of the county wherein the land is situated, a plat describing such selection and such right of way, properly acknowledged so as to entitle the same to be recorded, and so as to distinguish readily and designate such right of way from the entire premises described in the conveyance from which it was attempted to be reserved; or 3. Within such one-year period, an action was commenced in a court of competent jurisdiction for the purpose of definitely determining and locating such right of way, and establishing the owner's right thereto, and in such case had filed and recorded a proper notice of lis pendens in the office of the recorder of the county in which such land was located.