August 20, 1990

Michael P. Ortner
Hot Springs City Attorney
303 North River Street
Hot Springs, South Dakota 57747

OFFICIAL OPINION NO. 90-34

Platted street widths

Dear Mr. Ortner:

You have requested an official opinion from this office with regard to the following question:

QUESTION:

Where a platted street shows the width of the right-of-way to be sixty feet and the existing width of the street is less than that shown on the plat, if the city widens the existing street will it need to have a new survey and plat made and filed?

My answer must be predicated on the assumption that the plat showing a sixty-foot right-of-way has been duly dedicated and accepted by the city. This is critical as indicated in the authority cited below. If that is the case, the public should be deemed to have accepted all of the dedicated street, see Haley v. City of Rapid City, 269 N.W.2d 398 (S.D. 1978).

Absent prior abandonment or vacation of that area which lies outside the existing street but within the dedicated street, in a manner specifically provided by law, the platted street would still remain in the public domain, Haley v. City of Rapid City, supra. Under this authority, the doctrine of estoppel would not operate against the city in asserting its claim to the street as platted. A new survey and plat should not be necessary.

Therefore, the answer to your question is No.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

RAT:do