STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 30, 1974

Mr. Lawrence E. Long
State's Attorney
Bennett County
Martin, South Dakota 57551

OFFICIAL OPINION NO. 74-47

Recording of unplatted areas within boundaries of a municipality

Dear Mr. Long:

You have asked this office for an official opinion dealing with the following factual situation:

The Register of Deeds of Bennett County has been presented with a Resolution of the Martin City Council which Resolution approves the annexation of nine separate tracts of land into the city limits of Martin. Two of said tracts are not platted, but are rather described by rectangular survey description or metes and bounds description.

The question you asked specifically is:

Can the Register of Deeds refuse to record said Resolution because portions of the property have not been platted?

SDCL 9-4-2 says:

Whenever there shall be territory either platted or unplatted adjoining any municipality, the governing body may by resolution so extend the boundary of such municipality as to include such territory, in the manner set forth in § 9-4-2 to 9-4-5, inclusive (emphasis added).

Assuming the city council of Martin has followed SDCL 9-4-3 through 9-4-5, then under SDCL 9-4-11:

It shall be the duty of the mayor or the president of the board of trustees to cause an accurate map of such territory, together with a copy of the resolution or decree duly certified, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated .... (emphasis added).

Further, this office can find no part of the code that would allow the register of deeds to refuse to record said resolution.

In your arguments you have used SDCL 7-9-5 which states:

No register of deeds shall accept for record or record any deed, mortgage, or other conveyance of any platted plot of land until the plat thereof shall have been accepted for record in his office.

This section deals with registering of deeds, mortgages, or conveyances, not of a resolution to annex land platted or unplatted. You also note SDCL 7-9-8 which requires that the register of deeds keep an index for city and town property listed by lots and blocks. While that is a problem, it is clearly not the problem of a city that is annexing unplatted land. It is quite clear from SDCL 7-9-1 that it is the duty of the register of deeds to "keep full and true records and proper books, of all deeds, mortgages, and other innstruments authorized by law to be recorded in his office, .... " (emphasis added).

SDCL 9-4-11 clearly makes the resolution of the city of Martin to annnex the above mentioned territory an "instrument authorized by law."

Respectfully submitted,

Kermit A. Sande
Attorney General

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