August 26, 1986

Mr. John R. Steele 
Aurora County State's Attorney 
Post Office Box 577 
Plankinton, South Dakota 57368

OFFICIAL OPINION NO. 86-35

Recordation of transfers by metes and bounds

Dear Mr. Steele:

You have requested an official opinion from this office based upon the following facts:

FACTS: 

In 1969 the then owner of certain rural property in Aurora County executed a document titled 'Right of Way and Easement Agreement' granting, bargaining, selling, and conveying onto a third party a right of way and easement over a portion of the rural property for the purpose of constructing, maintaining and operating a tower for telecommunications purposes. 

The portion of the property over which the easement was granted is described in the 'Right of Way and Easement Agreement' by a metes and bounds description, and, in fact, the property over which the easement is granted cannot practicably be otherwise described except by platting with a lot designation. 

So far as is known, no attempt was made to record the easement grant when it was executed in 1969, and it is, in fact, not of record.  Nor has the metes and bounds description contained in the 'Right of Way and Easement Agreement' ever been recorded in connection with any other transaction. 

The successor in interest to the original grantor of the easement, who is deceased, now desires to record the 'Right of Way and Easement Agreement.' The successor in interest to the original grantor believes that neither he nor the original grantor fall within the following language contained in SDCL 43-21-1:  

When any owner . . . shall divide the same into parcels for the purpose of transfer . . . 

It is his belief that there has been no transfer.

Based on the above facts, you have asked the following question:

QUESTION: 

Is the 'Right of Way and Easement Agreement' a recordable document without first recording a plat as described in SDCL 43‑21-1?

SDCL 43-21-1 is as follows: 

When any owner of a government subdivision or a platted tract or lot which is within or without the corporate limits of any city or town shall divide the same into parcels for the purpose of transfer that cannot be described except by metes and bounds, he shall cause the parcels of land so divided to be platted into lots and have the lots numbered and a plat thereof recorded before any instrument of transfer of such divided parcels of land shall be recorded.  If such plat cannot be made without an actual survey he shall have such lands surveyed and the plat thereof recorded.

That statute, and its predecessor statutes, have been the law of this state since 1895 and have remained in substantially the same language, and have been the subject of numerous official opinions issued by this office, all footnoted  under the section in South Dakota Compiled Laws.  The last such official opinion appears to be Opinion No. 75-173, which contains a summarization and attempt to reconcile the previous opinions.  I commend that opinion to your attention for a general discussion of the subject matter.  In the last paragraph of that opinion my predecessor concludes that the word 'divide' in SDCL 43-21-1 'is to be interpreted as having its usual meaning.'  I concur in that opinion.  Had the property granted by the 'Right of Way and Easement Agreement' been a fee title and not an easement, the document would clearly not be recordable without previously recording a plat.

The remaining question is whether or not delivery of the document constitutes a 'transfer' as that term is used in SDCL 43-21-1.  The transfer of property is defined at 43-4-1 as follows: 

Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.

Property subject to transfer is described at SDCL 43-4-2 as follows: 

Property of any kind may be transferred, except as otherwise provided by this chapter.

An easement is an interest in property and therefore the document is a  'transfer' unless otherwise provided.

Nowhere in SDCL 43-4 is an easement listed as property not subject to transfer.  I conclude the document is not recordable without first recording a  plat.

The answer to your question, therefore, is 'no.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General