Keen v. Board of Sup'rs

Citations

• 8 S.D. 558
• 67 N.W. 623
• 1896 S.D. LEXIS 82

Syllabus

<p>X, Since the passage of Act Cong. July 26, 1866.(Rev. St. U. S. § 2477), declaring chat “the right of way for the construction of highways pyep public lands not reserved for public uses is hereby granted”; and the territorial act of January 12, 1871 (Comp. Laws, § 1189), providing that all section lines shall be public highways so far as practicable — persons filing on public lands take the same subject to the right of way along section lines for highway purposes. Wells v. Pennington Co., 48N. W. 305, 2 S. D. 1, followed.</p> <p>2. Under the territorial act of January 12, 1871 (Comp. Laws, § 1189), declaring that all section lines shall be public highways so far as practicable, “provided that nothing in the act shall be so construed as to interfere with existing highways in the settled portions of the territory,” a person seeking to prevent the change or vacation of a highway must show that it was legally established in a settled portion of the territory or existed by prescription, at the time such act was passed.</p> <p>3. Act, Jan. 12, 1871 (Comp. Laws, § 1189), provides that all section iines shall be public highways as far as practicable. Comp. Laws, § 1296, authorizes the supervisors of a town to lay out any new road, and Sec. 1320 declares that “every road located by territorial or county authority is a county road, and shall only be changed or vacated by an order of the county commissioners.” Held, that the town supervisors may open a road within their township on the section line of land belonging to the United States at the time Sec. 1189 was enacted; such line not being a county road, within See. 1320. Haney, J., dissenting.</p>