May 5, 1980

Mr. Myles DeVine 
Marshall County State's Attorney 
809 6th Street 
Britton, South Dakota 57430

Official Opinion No. 80-29

Vacating Alleys and Streets in an Unincorporated Town

Dear Mr. DeVine:

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

FACTS: 

The township board of White Township has contacted me concerning the following problem.  One of the owners of property in Kidder has contacted the township board concerning certain alleys and streets in Kidder which he wants to have vacated.  Under the provisions of SDCL 9-45-7 and 9-45-10, petition can be made to the appropriate 'governing body.'  Section 8-2-8 (SDCL) gives an organized township certain enumerated powers regarding unincorporated towns within its limits but doesn't specifically give them the power to vacate alleys and streets.  Section 8-2-10 states that no township shall exercise power or possess powers except as to those enumerated in that chapter and those especially given by law or are needed to exercise the power enumerated or granted.

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

QUESTION: 

Does a township have the authority under Chapter 9-45 to vacate alleys and streets in an unincorporated town?

SDCL 11-3-13 provides: 

The circuit court, within the proper county, is authorized on application  of the proprietor of any unincorporated town to alter or vacate the plat or map of such town or any part thereof.

In my opinion, the answer to your question is that under SDCL 11-3-13, the circuit court is the proper forum for vacating the streets and alleys of any unincorporated town.  It appears to me that this procedure, rather than the procedure of SDCL 9-45-7 and 9-45-10, would be the appropriate procedure.  The answer to your question, therefore, is no.

Respectfully submitted,

Mark V. Meierhenry
Attorney General