February 19, 1976

Mr. L. J. Hertz
State's Attorney
Douglas County Courthouse
Armour, South Dakota 57313

OFFICIAL OPINION NO. 76-23

Sale of real estate that has been transferred to county from the United States

Dear Mr. Hertz:

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

By good and sufficient conveyance, Douglas County became the owner in trust, of certain real estate in Douglas County, South Dakota, consisting of a quarter section of land. Said conveyance from the United States of America was dated June 30, 1884.

Such property is still owned by Douglas County and the county commissioners are interested in selling some acreage to private in­dustry for development.

Douglas County acquired such property under the provisions of 43 U.S.C.A. Sec. 858. The proceeds from such sale would be used for construction of county buildings now planned.

Under SDCL 7-29-2, the counties are granted authority to sell.

Based on the above facts you ask:

Does the transfer of this real estate from the United States in trust, to Douglas County, in light of the federal statute cited, permit the county to sell such real estate giving good marketable title?

Title 43, Section 858, of the United States Code Annotated reads as follows:

There shall be granted to the several counties or parishes of each state and territory, where there are public lands, at the minimum price for which public lands of the United States are sold, the right of preemption to one quarter section of land, in each of the coun­ties or parishes, in trust for such counties or parishes, respectively for the establishment of seats of justice therein; but the proceeds of the sale of each of such quarter section shall be appropriated for the purpose of erecting public buildings in the county or parish for which it is located, after deducting therefrom the amount originally paid for the same. And the seat of justice for such counties or parishes, respectively, shall be fixed previously to a sale of the ad­joining lands within the county or parish for which the same is located.

SDCL 7-29-2 provides:

Real estate held by any county, the title to which is obtained by foreclosure of any mortgage, by tax deed, or from any other source, except property necessary for public use may be sold and conveyed as provided in Sections 7-29-3 to 7-29-13, inclusive.

In my opinion the above cited provision from the United States Code in­dicates that the land given to counties under that section is not given with a limitation on the power of the county to sell such property. Part of the above cited section of the United States Code provides that the proceeds of the sale of each of such quarter section shall be appropriated for the pur­pose of erecting public buildings in the county or parish for which it is located. This, in my judgment is express recognition of the fact that the Congress intended to permit the county to sell such property and to use the proceeds of such sale for the purpose of the trust, of erecting public buildings in the county. SDCL 7-29-2, would appear to grant general authority to counties to sell property under their control.

Although there are numerous considerations which possibly might enter in­to a determination on whether or not a title is "marketable," it would ap­pear to me that in view of the limited facts presented, the above cited statutory provisions would not present a bar to the county giving a good marketable title. In fact, the above cited section from the United States Code would appear to me to present strong and clear authority for counties to sell such property, providing, however, that the proceeds from such sale would be used for the purpose of the trust, i.e., to erect public buildings in the county.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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