The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-06-12
ON LAND MATTERS.
AN OPINION FROM THE ATToR-
NEY GENERALS OFFICE.
Preference Rights of Settlers on
State Lands--Right of Way for
the Construction of Highways.

The attorney-general. by his deputy.
Benner " Smith. yesterday rendered
an opinion to the land board upon the
following questions. propounded to him
at the last session of the board:
First-Could a right of way be ac-
quired across sections 16 and So, be-
tween the dates of the reservation Of
the said sections by act of congress for
common schools, and the date of state
hood?
Second-Can this board grant rights
of way across state lands without any
considerations
Tnird-Where the settlers upon said
lands have acquired the preference
right to purchase the land settled upon
can the state lay out roads across such
settled lands and dedicate the same to
the public without the consent Of such
settlers. or remuneration of them?
In answer to the first question, he
finds the following provision:
Revised statutes, section 2477: The
right of way for the construction of
highways over public lands, not re-
served for public uses, is hereby
granted and a further provision of
this same act. as follows:
This act shall not apply 10 any lands
or Indian reservation or other lands as
pecially reserved from sale, unless such
right of way shall be provided for by
treaty stipulation or by act of congress
heretofore passed.
The congress of the United States. by
an act approved Sept. 9, 1850, commonly
called the Organic Act. provided for a
territorial form of government for Utah
territory, and reserved from sale. and
60 h. -
schools in the territory of Utah, and
in the states and territories that might
thereafter be erected out of the same,
sections numbered is and Sc in each
township. These school sections il will
be seen, by the organic act, were re-
served from sale, and although the
same remain public land. and certain
rights. by virtue of possession. might be
acquired to the same, yet it is my oDin-
ion that they come within the meaning
of the exemption made by the act of
congress over which highways might
be constructed. It is, Therefore, my
opinion that the erection and laying out
of highways or rights of way by the
public. over sections 16 and IS between
the date of reservation OF these sec
lions by act of congress, and the date
Of statehood. would be imperative as
against the rights of the general gov
These provisions of the law already
quoted did not, in any way, affect the
right of the counties and the state 10
lay out and dedicate public highways
across unoccupied public domain, pro-
vided they brought themselves within
the provisions of chapter Is, page 733, of
volume OF the compiled laws of
1898.
In answer to the second question:
The officer is Of the opinion that it is
not within the power of the board to
grant a right of way across said lands
without consideration. Your board
must necessarily act within the terms 4
Of chapter 81 of the laws Of 1891 de-
fining your powers and duties, and 1
fail to find any authority in the law
for such acts.
In relation to the third inquiry, he
says that the settlers upon state lands
who are entitled to a preference right
to purchase the same have, until that
time has expired for them to exercise
that right. a vested right and interest
in the land settled upon, but it is with
in the power of the state to lay out pub
lie roads or highways across such
lands il they are necessary fo' the pub
lie use. without the consent of such set