If a city has a platted street showing a 60-foot right-of-way but the actual paved street is narrower, can the city widen the street to the full 60 feet without doing a new survey and plat?
Plain-English summary
A South Dakota city had a platted street whose right-of-way, as shown on the original plat, was 60 feet wide. The actual paved roadway was narrower than that. The city wanted to widen the road to use the full 60 feet of dedicated right-of-way. Did it need to commission a new survey and file a new plat first?
AG Roger Tellinghuisen said no, with one important assumption built in: the original plat showing the 60-foot right-of-way had to have been duly dedicated and accepted by the city. Once that initial dedication and acceptance happens, the entire dedicated width belongs to the public, regardless of how much of it the city has actually built out at any given moment.
The controlling authority was Haley v. City of Rapid City, 269 N.W.2d 398 (S.D. 1978). Haley established that when a plat is dedicated and accepted, the public is deemed to have accepted all of the dedicated street area, not just the portion immediately put into use. The unused portion stays in the public domain unless it has been formally vacated or abandoned under the procedures provided by law. Mere non-use, decades of having a narrower paved roadway, or any acquiescence by the city doesn't trigger an abandonment.
The opinion also addressed estoppel. Adjacent landowners sometimes argue that they've been using or relying on the narrower roadway for so long that the city is estopped from now asserting its right to the full platted width. Haley foreclosed that argument. Estoppel doesn't run against the city's claim to the platted right-of-way.
The practical conclusion: the city could proceed with widening to the 60-foot dedicated width without commissioning a new survey or filing a new plat. The legal authority to do so was already on the books in the original plat.
Currency note
This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's dedication, vacation, and right-of-way statutes have been amended in various ways since 1990, and subsequent case law may have refined the Haley doctrine. Before relying on a dedicated-but-unused right-of-way to widen a street today, consult current SDCL provisions in Title 31 (highways and roads) and Title 11 (planning and zoning), and check whether Haley has been followed or distinguished in subsequent SD Supreme Court decisions.
What the opinion meant at the time
For SD cities holding old plats with wider-than-built rights-of-way, the opinion confirmed they could exercise the full dedicated width without re-platting. For adjacent property owners who had treated the unused right-of-way strip as effectively theirs (planting hedges, building fences, parking vehicles in the strip), it confirmed they had no defense against the city reclaiming that space for street use.
The opinion also reinforced a long-running principle that dedications, once made, are durable. Cities that had not invested in surveying or platting could rely on their predecessors' work as long as the original dedication was procedurally valid.
For surveyors and engineers, the opinion saved cities the cost and delay of a new survey before street widening. Plans could proceed from the original plat as long as the city confirmed the dedication and acceptance history.
Common questions
Q: What was the controlling case?
A: Haley v. City of Rapid City, 269 N.W.2d 398 (S.D. 1978). It established that a duly dedicated and accepted street is owned by the public to the full width of the dedication, not just the portion put into use.
Q: What if there was no formal acceptance of the original plat?
A: The AG's opinion was expressly predicated on the assumption that the plat had been duly dedicated and accepted. If the dedication was offered but never formally accepted, the analysis could be different. Acceptance can be express (formal city action) or implied (city exercises control over the street, maintains it, etc.).
Q: Can a property owner claim adverse possession of the unused portion?
A: Generally no. Adverse possession does not run against the public on a duly dedicated and accepted right-of-way. The Haley rule and the broader principle that public property is not subject to private adverse possession claims protect the city's interest.
Q: What does "vacation" mean in this context?
A: Vacation is the formal legal process by which a city or other public body relinquishes its claim to a dedicated street or portion thereof. SD statutes provide procedures for vacation, typically requiring a public hearing and a formal resolution. Without that process, the street remains public.
Q: Does this rule apply outside SD?
A: Most states follow similar rules on plat dedication and acceptance, but the specifics vary. This AG opinion is binding only as persuasive authority in South Dakota.
Background and statutory framework
Plat dedication is a foundational concept in municipal real estate law. When a subdivider files a plat showing streets, the act of recording the plat (with proper procedures) constitutes an offer of dedication of those streets to the public. When the public (typically through the city's acceptance of the plat) accepts that offer, the streets become public property to the full width shown.
Once accepted, the street remains public until formally vacated. The unused portion isn't subject to abandonment by simple non-use; the Haley doctrine forecloses that argument. The unused portion also isn't subject to acquired private rights through adverse possession.
The practical consequence is that cities can rely on their plat records (sometimes very old) as authority for the geometric scope of their rights-of-way. The original plat is durable proof of the dedication's terms.
The opinion's brevity reflects its straightforward application of settled law. Haley had already done the analytical work in 1978; the 1990 opinion just applied the rule to the specific question of whether a new survey was needed.
Citations and references
Cases:
- Haley v. City of Rapid City, 269 N.W.2d 398 (S.D. 1978)
Source
Original opinion text
OFFICIAL OPINION NO. 90-34
Platted street widths
Dear Mr. Ortner:
You have requested an official opinion from this office with regard to the following question:
QUESTION:
Where a platted street shows the width of the right-of-way to be sixty feet and the existing width of the street is less than that shown on the plat, if the city widens the existing street will it need to have a new survey and plat made and filed?
My answer must be predicated on the assumption that the plat showing a sixty-foot right-of-way has been duly dedicated and accepted by the city. This is critical as indicated in the authority cited below. If that is the case, the public should be deemed to have accepted all of the dedicated street, see Haley v. City of Rapid City, 269 N.W.2d 398 (S.D. 1978).
Absent prior abandonment or vacation of that area which lies outside the existing street but within the dedicated street, in a manner specifically provided by law, the platted street would still remain in the public domain, Haley v. City of Rapid City, supra. Under this authority, the doctrine of estoppel would not operate against the city in asserting its claim to the street as platted. A new survey and plat should not be necessary.
Therefore, the answer to your question is No.
Respectfully submitted,
ROGER A. TELLINGHUISEN
ATTORNEY GENERAL
RAT:do