(dissenting).
While the majority opinion may be in accord with “conventional wisdom” as expressed by the opinions of the Attorney General, it is not consistent with a considerable number of legislative enactments and opinions of this court. I believe these matters can be best reconciled by distinguishing between the grant and acceptance of a right-of-way easement and the opening of a public highway. The fact that the Territorial Legislature accepted a right-of-way easement from the federal government does not mean that the Territorial Legislature and the subsequent state legislative assemblies have opened up public highways on every section line within this state.
It has apparently been widely assumed that the status of rights-of-way on section lines has been long resolved, but an examination of the cases and statutes reveals that this is only partially true. The cavalier analysis of Judge Robinson, in a concurring opinion, may have greatly contributed to this:
“By the statutes of the United States, and .of this state, and by universal custom, the land for two rods on each side of a section line is a highway and the public have a right to use the same as a highway without any order opening it.
“The question is so well settled there is no occasion for discussing it. Hence appellant had no right to fence or obstruct the section line highway, and the township supervisors had a right to open it without any petition.” Huffman v. Board of Supervisors of West Bay Township, 47 N.D. 217, 182 N.W. 459, 461 (1921).
Judge Robinson, however, spoke only for himself. The majority opinion was specifically limited in its application.
“ Whatever difference of opinion may exist as to whether any proceedings are *301necessary to open a highway on a section line — and upon this we express no opinion —there could be no question but that no proceedings are necessary to establish a highway on a section line.” Huffman v. Board of Supervisors of West Bay Township, 182 N.W. 461. [Emphasis supplied.]
The source for the section line right-of-way goes back over a century to 1866. At that time, shortly after the close of the Civil War, Congress enacted a grant for rights-of-way over public lands.
“The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Act of July 26, 1866, Ch. 262, § 8, 14 Stat. 253, 43 U.S.C. § 932.
This Act has been construed as an offer to dedicate public lands for highway purposes, with the dedication becoming effective upon acceptance in accordance with the law of the state or territory where the land is located. See Pederson v. Canton Tp., 72 S.D. 332, 34 N.W .2d 172 (1948); Hillsboro Nat. Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657 (1922).
The key Act for the states of North Dakota and South Dakota is Chapter 33 of the Session Laws of the Dakota Territory for the year 1871, which accepted the right-of-way across section lines. This action may be considered in conjunction with Section 247 of the Civil Code for the Dakota Territory which recognized the right-of-way easement as an interest in real estate. Ch. 8, S.L.1870-1871, at 50.
The territorial legislature amplified upon that action in 1883.
“In all townships in this Territory in which no public roads have been laid out, or which have not been organized, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section lines, upon the order of the board of supervisors, without any survey being had, except where it may be necessary on account of variations caused by natural obstacles, * * * ” Ch. 112, S.L.1883, at 257. [Emphasis supplied.]
Certain characteristics of the section line right-of-way are clear from subsequent decisions. Roads may be constructed in the four-rod area along the section lines without compensation to the adjoining landowners. Faxon v. Lallie Civil Township, 36 N.D. 634, 163 N.W. 531 (1917); Wenberg v. Gibbs Township, 31 N.D. 46, 153 N.W. 440 (1915); Riverside Township, v. Newton, 11 S.D. 120, 75 N.W. 899 (1898). The right-of-way is an easement for highway purposes only and ownership of the underlying fee remains in the adjoining owners. Rutten v. Wood, 79 N.D. 436, 57 N.W.2d 112 (1953). The right-of-way easement along the section lines is already perfected and no additional proceedings are necessary to confirm it.
The question is whether the section lines were automatically opened as public highways by the Act of the legislature or whether some additional act of the state or its political subdivisions is necessary. The problem can be better resolved by distinguishing between the incidents of the right-of-way as an interest in real estate and the power of the state in establishing and opening public highways. The Territory of Dakota, and its successor, the State of North Dakota, accepted the right-of-way easement across section lines as trustee for the public by the Act of 1871. See Lalim v. Williams County, 105 N.W.2d 339, 343 (N.D.1960). This trust is not merely passive but gives the trustee possession, control and supervision of the trust property. See Union Coal Co. v. City of LaSalle, 136 Ill. 119, 26 N.E. 506 (1891); Good Humor Corporation v. City of New York, 33 N.Y.S.2d 905 (1942), aff’d, 264 App.Div. 620, 36 N.Y.S.2d 85 (1942), rev’d on other grounds, 290 N.Y. 312, 49 N.E.2d 153 (1943); Barnwell Bros. v. South Carolina State Highway Dept., 17 F.Supp. 803 (1937), rev’d on other grounds, 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734 (1938).
The right-of-way easement is subject to the governmental authority of the state, *302under its police power, to establish, open, construct, maintain, abandon, or close public highways. See Zueger v. Boehm, 164 N.W.2d 901 (N.D.1969); Chandler v. Hjelle, 126 N.W.2d 141 (N.D.1964); Smith v. State Highway Commission, 185 Kan. 445, 346 P.2d 259, 267 (1959). The state, its political subdivisions, municipal corporations and other units of local government are the vehicles by which public roads and highways are established and maintained. It is incongruous to presume that rights-of-way for public use, accepted by action of the state, or its predecessor, are not subject to regulation and control by the state.
This fact was recognized by the State Legislature in 1897 when it passed an Act providing that:
“In the opening, vacating or changing of a highway outside of the limits of incorporated cities, villages or towns, all proceedings relating thereto to acquire right of way and to all other matters connected therewith shall be under the charge and in the name: * * * [the board of county commissioners if territory is not organized into a township, the board of township supervisors of an organized township, and combinations of such boards where the road adjoins townships or counties]” Ch. 112, § 4, S.L.1897, at 213.
This legislation has continued without substantial change to the present. See Section 24-07-04, N.D.C.C.
I am persuaded the Legislature intended that control over the section line rights-of-way be vested in the boards of township supervisors, or the boards of county commissioners. Included within this jurisdiction is the “opening” and “closing” of public highways on the section lines. In addition to the specific statute in question here, the legislature has adopted a variety of other statutes dealing with section lines and opening highways. These include authority for opening a cartway (§ 24-07-06), removal of fences when a road is opened (§§ 24— 06-30 and 24-07-19), authorization for fences when section lines are not opened (§ 24-06-28), authority to place obstructions within thirty-three feet of the section line (ibid.), vacation of roads not “open for public use” (§ 24-07-31), closing section line roads intercepted by interstate highways (§ 24-07-03), and appeals from decisions relating to public roads (§ 24-07 — 22).
Our present legislation regarding public highways incorporates a total governmental framework for dealing with this complex area. One chapter of our Code deals with the state highway system (Ch. 24-01), another with the state highway commissioner (Ch. 24-02), another with the county road system (Ch. 24-05), and yet another chapter deals with local roads (Ch. 24 — 06). Legislative intent is specifically stated in Section 24-01-01, N.D.C.C., where broad authority is granted the state highway commissioner to plan, develop, operate and maintain the state highway system. In addition, “it is the further intent of the legislative assembly to bestow upon the boards of county commissioners similar authority with respect to the county road system and to local officials with respect to the roads under their jurisdiction.”
Where possible, we must give effect to all of these statutes and attempt to harmonize their meaning and application. Interwoven through these statutes is the necessary implication that “opening” the public highway is an official act of the board having jurisdiction of the area in which the highway is located.1 The term “opening” as applied to *303a public street or highway is usually intended to mean placing the highway in condition for use or placing the highway at the service of the public. A right-of-way which might have had only a legal or paper existence is thereby given over to actual highway use.
It was recognized at an early date that the act of the territorial legislature in accepting the rights-of-way was not self-executing in terms of creating open public highways. As the South Dakota Supreme Court stated in 1896:
“As the question of interference and practicability must be considered and determined by proper authority, and in the manner provided by law, before a section line can become a confirmed highway, open for public travel, it is obvious that something beyond the declaration of said section is essential to the establishment of a public highway upon a section line.” Keen v. Board of Supervisors, 8 S.D. 558, 67 N.W. 623, 625 (1896).
This court confirmed the necessity for governmental action in the case of Hillsboro Nat. Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657, 659 (1922):
“In conclusion, it may be observed that there can be no doubt that section lines are public roads. Section 1920, C.L. They may be opened upon compliance with that section and other relative laws by those having jurisdiction to do so, and who are specified in section 1921, C.L., and this without any survey being had, except' where necessary by variations caused by natural obstacles.”
The South Dakota case of Lawrence v. Ewert, 21 S.D. 580, 114 N.W. 709 (1908), cited by the majority, was relied upon by the attorney general in concluding that the section lines were open highways. However, the three-judge court split three ways in that case. One judge concurred in the result and another dissented. The “majority” opinion in that case does not examine previous cases or legislation indicating a contrary result and does not consider the distinction between the right-of-way as a real estate interest and the governmental authority over public highways. It must be remembered that a public highway has two essential attributes — public access and use and public maintenance. See Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957); State v. Schmidt, 252 Wis. 82, 30 N.W.2d 220 (1948); Nixon v. Edwards, 72 Wyo. 274, 264 P.2d 287, 293 (1953); Hildebrand v. Southern Bell Telephone & Tel. Co., 219 N.C. 402, 14 S.E.2d 252 (1941). I am not persuaded that the Legislature intended to require counties and townships to bear the expense of maintaining roads on every section line in this state. The Legislature has distinguished between section lines that have been opened as public highways and those which have not.2 Adjacent landowners have some rights of use to unopened section lines.3 The criminal sections attributable to open public highways in general appear difficult of application to unopened section lines.4
*304Sound public policy would appear to require the exercise of judgment and discretion by the local governing body as to the opening of a public highway on a section line. There are several factors that a board might consider as relevant to its decision on opening a section line as a public highway. Included among these are (1) public convenience and necessity with respect to such a road, (2) financial ability of the governmental body to perform whatever construction and maintenance may be necessary to obtain an open road on such section line, (3) the feasibility of such a road based upon existing topography and soil conditions, and (4) any legislative restrictions or directions on establishment of a road system.5
I would therefore conclude that, except where section lines have been established as highways by prescription — public use for the prescribed term (see § 24-07-01) — section lines are opened as public highways by the action of the township or county board having jurisdiction. In most cases this could be accomplished simply by an order of the board declaring certain section lines opened as public highways, to a width of up to two rods on either side of the section line. In this regard see Hillsboro Nat. Bank v. Ackerman, supra, where a township board declared all section lines in the township opened as public highways, or Faxon v. Lallie Civil Township, supra, where four miles of section lines were declared open.
PAULSON, J., concurs.. “In all townships in this state outside the limits of incorporated cities, the congressional section lines shall be considered public roads, to be opened to the width of two rods on each side of such section Unes, where the same have not been opened already upon the order of the board having jurisdiction, * * * ” Sec. 24-07-03, N.D.C.C. (Emphasis supplied.)
“The provisions of this section shall not prohibit construction of fences along or across section lines not open for travel but such fences shall be subject to removal as provided in section 24-06-30.” Section 24-06-28, N.D.C.C. (Emphasis supplied.) *303“In case any person shall place or cause to be placed any stones or rubbish within thirty-three feet of any section line, the board of county commissioners or board of township supervisors, as the case may be, when a public highway is opened along such section line, shall notify the owners of adjacent property to remove such stones or rubbish.” Section 24-06-29, N.D.C.C. (Emphasis supplied.)
“When a public highway is opened along any section line within the state, the board of county commissioners or the board of township supervisors, as the case may be, shall notify the owner of adjacent property to remove any fences * * * ” Section 24-06-30, N.D.C.C. (Emphasis supplied.)
. See statutes cited in n. 1.
. See e. g., Section 24-06-28, authorizing adjacent landowners to place fences and other obstructions on unopened section lines.
. E. g., Section 24-12-01, N.D.C.C., makes it a criminal offense to dig up any public highway area used in connection with a public highway, and Section 24-12-02, N.D.C.C., makes it a criminal offense to obstruct any public highway.
. See e. g., Section 24-05-16, N.D.C.C., limiting the county road system to 22,500 miles with percentages of such total assigned to each county. See also, Section 24-05-20, N.D.C.C., regarding back sloping of county and township roads, and Section 24-05-21, N.D.C.C., regarding inslopes at place of intersection.