STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 4, 1966

William E. Anderson
State’s Attorney, Butte County
Belle Fourche, South Dakota 57717

OFFICIAL OPINION NO. 67-68 pg. 56

Sanitary Districts. Sanitary Sewer and Water Districts outside of corporate limits.

In your letter relating to the above captioned matter you present the following factual situation and questions:

'"SDC 1960 Supp. 45.38, as amended by Chap. 144 of the 1964 Session Laws, and by Chap. 146 of the 1966 Session Laws, provides for organization of sewer and water districts without the boundary of any incorporated City or Town.

"SDC 1960 Supp. 45.3802 provides for an accurate survey and map to be made of such district which survey and map is displayed for examination prior to application for incorporation pursuant to SDC 1960 Supp. 45.3804, as amended. In a practical sense, it would seem that such survey and map would amount to a plat. It appears that such survey and map should be filed with the Co. Auditor when application for incorporation is made pursuant to SDC 1960 Supp. 45.3805 as amended.

"In regards to this particular request, assume that a sanitary sewer and water district has been declared incorporated by the Board of County Commissioners pursuant to SDC, 1960 Supp. 45.3811, but that as yet the officers and trustees of such district have not been elected as required by SDC 1960 Supp. 45.3812, and

45.3813 as amended."

Your specific questions read as follows:

"1. What requirements, if any, exist in regards to any mandatory recording of such survey and map (plat) in the Office of the Register of Deeds?

"2. If the survey and map (plat) are recorded in the Office of the Register of Deeds, whether such recording be in accordance with any law requiring same or if it be according to the wishes of the concerned district, what certificates and acknowledgments must be contained thereon before the Register of Deeds can accept such instrument for recording?

"3. If such district includes territory contained in an unincorporated town, located within an organized civil township, must the township board of supervisors certify as to the accuracy of such map and survey (plat)?"

See Chapter 144 of the 1964 Session Laws of this state, amended SDC Chapter 45.38 and Chapter 146 of the 1966 Session Laws relating to sanitary and water districts outside municipalities.

Answering Question No. 1, it is provided in SDC 1960 Supp. 45.3802 that "persons making application for the organization of a water district shall first cause an accurate survey and map to be made of the territory intended to be embraced within the limits of such sanitary district, showing the boundaries and area thereof, and the accuracy thereof shall be verified by a certificate of the surveyor."

SDC 1960 Supp. 45.2806-2 relating to plats provides that plats specified in Section SDC 45.2806 and SDC 45.2806-1 "shall not be entitled to record or be recorded unless the same bears a copy of the certificate of the County Director of Equalization that he has received a copy of such plat."

SDC 45.2804 relating to plats reads as follows:

"Certificate and acknowledgment. Every plat provided for in this chapter shall be certified by the surveyor as being in all respects true and correct and by the proprietor, or his duly authorized agent, as having been made at his request and under his direction for the purposes indicated therein, that he is the absolute and unqualified owner of all the land included therein, and that the same is free from any incumbrance. Such certificates shall be acknowledged before some officer authorized to take the acknowledgment of deeds and, with the certificate of such acknowledgment, shall be indorsed on or attached to the plat and be recorded as a part thereof in the office of the register of deeds of the proper county.

"There shall also be indorsed thereon or attached thereto the certificate of the county treasurer that all taxes which are liens upon any land included in such plat, as shown by the records of his office have been fully paid.

"No such plat shall be recorded until all the provisions of this section have been fully complied with."

In answering your specific Question No. 1, you are advised that the provisions of the above quoted statute should be strictly complied with.

I draw your attention to SDC 1960 Supp. 45.2806-1 relating to Platting lands outside municipalities, which provides:

"Whenever any person wishes to plat any lands lying outside the boundaries of a municipality which are not included in an addition or subdivision thereof as specified in section 45.2806, he shall be governed by and proceed in accordance with the provisions of chapter 44.28, except that before recording his plat in accordance with section 45.2806, he shall submit the same only to the board of county commissioners of the county wherein such lands are situated."

Your specific Question No. 2 is answered by the provision of the statute above cited and strict compliance should be made with this statute.

I draw your attention to SDC 1960 Supp. 45.2806-2 which provides:

"Plats specified in sections 45.2806 and 45.2806-1 shall not be entitled to record or be recorded unless the same bears a copy of the certificate of the county director of equalization that he has received a copy of such plat."

Your specific Question No. 3 is answered in the NEGATIVE.

Under date of May 12, 1964 this office issued an official opinion to G. J. Van Heuvelen, M. D., State Health Officer and Chairman, State Committee on Water Pollution, Pierre, South Dakota, (See 1963-64 AGR 328) which among other interrogatories, the following question was asked.

"Can incorporated areas, unincorporated areas, and industry be incorporated into a sanitary district for the construction and operation of joint waste collection and treatment facilities?"

This question was answered as follows:

"The recent amendments of Chapter 45.38 which were passed by the 1964 Legislature provides for the organization and financing of a sewage district which would be able to construct and operate joint collection and treatment facilities." (See Chapter 144, 1964 Session Laws).

Although the above quoted opinion does not directly answer your questions, I suggest that you carefully read this opinion as it may be helpful in your study of the laws of this state relating to sanitary sewer districts outside municipalities.

I draw your attention to Section 10 of Chapter 144 of the 1964 Session Laws of South Dakota which provides:

"That SDC 1960 Supp. 45.38 be, and the same is hereby, amended by adding thereto a new section reading as follows:

"All proceedings taken prior to the effective date of this act for the incorporation of sanitary districts, and all actions and proceedings taken by sanitary districts prior to such effective date, which were in accordance with the provisions of SDC 45.38 at the time when they were taken or would have conformed to the provisions of SDC 45.38 as herein amended, if this act had been in effect, are hereby legalized and validated; provided that any proceeding commenced prior to the effective date of this act shall be continued in accordance with the provisions of SDC 45.38 as herein amended."