(concurring in part, dissenting in part).
I do not agree with all of the majority opinion; however, I do agree that the trial court’s findings, except as to the following matter, are “not clearly erroneous”, and therefore I would concur in the result.
I am of the opinion that the majority opinion neglected to make a determination on an important issue in the case, that being the validity of the highway right-of-way in those places where it deviated from the original course. The trial court held (and the majority opinion upheld) that the defendant county, rather than plaintiffs, was in possession of a right-of-way easement across the property and that therefore its claim of a public highway was not barred by the South Dakota marketable title act. All of this was based upon the 1901 proceedings and the usage and maintenance thereafter. Not mentioned in the opinion was the fact that the testimony revealed that there were places along the road where there were deviations of 25 feet to 40 to 50 feet from the original course. I would not hold that the county had possession of said places of deviation in this action. Further, SDCL 31-3-2 prevents the establishment of a public highway by “mere use”. An examination of the cases interpreting said statute would seem to indicate that it was specifically intended to prevent the “angling across” which occurred here. See Roche Realty & Investment Co. v. Highlands Co., 1912, 29 S.D. 169, 135 N.W. 684; Stannus v. Heiserman, 1949, 72 S.D. 567, 38 N.W.2d 130; Edmunds v. Plianos, 1952, 74 S.D. 260, 51 N.W.2d 701; and Lacey v. Judge, 1942, 68 S.D. 394, 3 N.W.2d 115. I am of the opinion that the county should be required to rely upon implied dedication (or condemnation) to acquire a valid public road in places where it varies from the course as laid out and opened, or at the very least be required to follow the original course of the road.