The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-04-13
PUBLIC HIGHWAYS.
AN OPINION GIVEN BY ATTOR.
NEY GENERAL BISHOP.
1t Is of Interest to Every County in
the State-What Constitutes a
Dedication.

In an opinion rendered yesterday At
torney-GeneraI Bishop treats on what
constitutes a dedication of public high
way. This is a subject which every
| county in the state has to deal with
and one which the commissioners of
this county are now wrestling with and
it is therefore of some interest. The
opinion which was sent to County At
torney Mcdaniel of Sewer county is as
Il beg to acknowledge receipt of your
favor of recent date containing the fol-
lowing: First: Where a county road
over unapDropriated public lands was
Tad out and used by the public for ten
steader to enter the same and upon
which poll tax had been expended or re-
pairs made under the direction of the
road supervisor but of which no formal
dedication was ever made, is there a
1 sufficient dedication to hold the same as
against said homesteader?" You also
submit series of questions relating to
the same subject. differing only in some
OF the facts stated, but all involving the
question as to what constitutes a dedi-
cation of public highway.
An answer to your first question in full
will necessarily furnish the information
sought in the other inquiries of your
communication. Your attention is di-
rected to section 2,477 of the revised
Statues OF the OnlIeO states enacted Dy
congress in July, 1866. providing as fol-
lows:
- The right of way for the construction
of highways over public lands not re-
served for public uses, Is hereby
granted See page 219, volume 1 of the
code of 1888. By the terms of the fore
goiEg grant is made to the public of
rights of way over public lands not re-
served for public uses. There must be
an acceptance of this grant evidenced
by some action of a corporate body
duly authorized thereto.
Generally speaking, as against the
sovereign government. the doctrine of
adverse possession or title by preScrip-
ton can have no force, and the acquies-
ence of the government for any number
of years in the use of its land for high
ways would be no evidence of dedication
or SIS part. To determine what will
amount to a dedication of a highway
of our code. Therein we find the follow
ing: Section 1861: All roads
which are now used by the public and
have been declared to be highways by the
county courts and municipal corporations
within their respective jurisdictions, or
which may hereafter be so declared, shall
be deemed and taken to be public high
roads laid out and recorded by
order of the county courts or municipal
corporations within their respective
jurisdictions are public highways. Sec
ton 1872 subdivision 2. in prescribing the
duties of county courts, makes it their
duty to cause to be surveyed, viewed.
laid out, recorded, opened, maintained
and worked, such public highways as are
necessary for public convenience.
BY a perusal OF the foregoing law 1t
will be observed that certain proceed
ings are made requisite on the part of
validate the appropriation of land
for highways, and which proceed
ings. when had and properly re
corded by the county clerk as provided in
sufficient evidence of
appropriation on the part of the county,
and of dedication on the part of the gov
eminent Gf the highway be over public
land).
In your communication you use the
term county road 1t is assumed from
this that the county court has IN all re
spectS complied with the law herelnpe-
fore set out. If this presumption is cor
rect, 1 am of opinion that such compli-
ance operated as an acceptance OF the
dedication made by act of congress re-
Quired an easement in such land OF which
it could not be Invested by patent OF
the United States issued to a home
steader whose entry of said land was
made subsequent to the acceptance OF
such dedication. And that patent is
sued in the case suggested by the United
States would be held subject to the ease
ment acquired by the public in the land
for its us as a public highway.
In section 2.Oe6 it is provided that that AL all
roads laid n, 9Tt a or d ereGtea o o
u
abandoned to the use of the pubic, are
highways A highwCs- shall be deemed
and taken as dedicateS and abandoned to
the use of the public when ii has been
continuously and uninterruptedly used as
a public thoroughfare for period of
ten years
1T will be seen that ten years is the
time fixed by statute. after which a ded-
ication as against all the world. except
the sovereign government, will be con-
clusively presumed.
1.-The use of a highway for any num-
Der of years less than ten, whether eX-
penditures of labor and poll taxes have
been made thereon or not. Gould not avail
to vest title in the public by adverse
possession. 1 am of opinion that the
making of repairs upon roads are not
conditions precedent to dedication. and
a road may become d public highway
without the expenditure of either there
on and that highway except as against
the general government. is dedicatd and
abandoned to the public when the same
has been continuously and unlnterrup-
tediy used as a public thoroughfare for
period of not less than ten years. pro-
vided the user has been adverse. and not
by the permission of the owner OF the
land
Il am further of opinion that in order
10 the determination of what shall con-
stitlte a sufficient dedication, the rec
ords of the county court must be con-
suited If it shall appear therefrom that
a substantial compliance with the law
statutory dedication has been
had then such way shall be deemed and
taken to be public highway. whether
over public or other lands. and that the
right is paramount as against
the homesteader's in any case where the |
land was entered subsequent 10 the |
appropriation as hereinbefore
tad