Keen v. Board of Sup'rs

Corson, P. J.

(concurring specially). I concur in the view expressed by Mr. Justice Fuller that since the passage of the act of congress of July 26, 1866, and the act of the territorial legislature of 1871 (Comp. Laws, § 1189), all persons taking land in this state take it subject to the right of way for highway purposes along section lines. This was so held by this court in Wells v. Pennington Co., 2 S. D. 1, 48 N. W. 305; Howard v. Brown (Neb.), 56 N. W. 713. It affirmatively appears in this case that the plaintiff acquired his land subsequent to the passage of the territorial act of 1871. It also affirmatively appears that a highway along the section line in controversy is practicable. It will be presumed, therefore, that there is a highway located and existing by operation of law upon such section line, which the township officers have presumptively the right to open for public use as such highway. One who seeks to prevent the opening of such highway for public use by the. township officers should be required to show, in a clear and satisfactory manner, such facts as take the particular section line out of the operation of the general law. Such showing was not made in this case, and for this reason, without entering upon a discussion of the conflicting statutes in this state, relating to the powers of townships and counties to locate or vacate highways, I think the order appealed from should be reversed.