September 29, 1983

Mr. David L. Volk 
Commissioner 
South Dakota Department of School and Public Lands 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 83-34

Island in Missouri River

Dear Commissioner Volk:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

An island has formed as the direct result of accretion in the Missouri River.  The accretion is due to the construction of Channel Block 6 by the United States Corps of Engineers.  This island lies between Sections 9 and 16, Township 5 North, Range 31 East Black Hills Meridian of Stanley County, and between Sections 19 and 30, Township 111 North, Range 79 West Fifth Principal Meridian of Hughes County.

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

QUESTION: 

What county has jurisdiction over this island?

SDCL 7-1-1, enacted in 1903, states as follows: 

The names and boundaries of the several counties of this state shall be and remain as now fixed and determined, until changed in the manner provided by law.  The following sections shall be deemed to show the boundaries of such counties correctly until the contrary is definitely established.

SDCL 7-1-33, last amended in 1891, describes the boundaries of Hughes County, as follows:  

Beginning at the intersection of the third standard parallel north and the tenth guide meridian west of the fifth principal meridian, thence west and along said third standard parallel to the center of the main channel of the Missouri River; thence down the center of the main channel of said river to its intersection with the tenth guide meridian west in township one hundred nine north; thence north and along said tenth guide meridian to the place of beginning, and also all that tract or parcel of land lying and being in the Missouri River and known as Farm island.

SDCL 7-1-59, last amended in 1897, describes the boundaries of Stanley County: 

Beginning at the intersection of the centers of the main channels of the Cheyenne and Missouri rivers, thence westerly and up the center of the main channel of the Cheyenne river to the sixth guide meridian east Black Hills meridian; thence south and along said guide meridian to the township line between townships 2 and 3 north, Black Hills base line; thence east and along said township line to the west line in the fifth principal meridian survey, being the west line of range seventy-nine west of the fifth principal meridian; thence north and along said range line to the north line of township one hundred eight north of range seventy-nine west of the fifth principal meridian; thence east and along said north line of township one hundred eight north, to the center of the main channel of the Missouri River;  thence northerly and up the center of the main channel of said river to the place of beginning.

Article IX, §  1 of the South Dakota Constitution requires any change in the boundaries of a county to be submitted to a vote.  The voting procedure for changing the boundaries of a county appears in SDCL Chapters 7-2 and 7-3.

Therefore, it appears that the boundary between Hughes and Stanley counties had been fixed as the center of the main channel of the Missouri River as it existed in 1903.  A determination must be made where this boundary was in 1903; then a survey should be performed to ascertain the precise location of this island as it lies within the Missouri River.  Those portions of the island lying to the west of the established boundary lie within Stanley County; those portions of the island lying to the east of the established boundary lie within Hughes County.

Sincerely,

Mark V. Meierhenry
Attorney General