Small v. Burleigh County

While the majority opinion may be in accord with “conventional wisdom” as expressed by the opinions of the Attorney General, it is not consistent with a considerable number of legislative enactments and opinions of this court. I believe these matters can be best reconciled by distinguishing between the grant and acceptance of a right-of-way easement and the opening of a public highway. The fact that the Territorial Legislature accepted a right-of-way easement from the federal government does not mean that the Territorial Legislature and the subsequent state legislative assemblies have opened…