Platting a road is not the same as the city taking it on
Platting a road is not the same as the city taking it on
2026-09-19 · South Dakota · Courts
The single most useful South Dakota authority of the past two years for anyone arguing about who maintains a subdivision road arrived in a case about a gold-rush monument. Turgeon v. City of Spearfish, 2026 S.D. 22, filed April 8, 2026, affirmed in part, reversed in part, and remanded for trial.1
Leslie and Karen Turgeon own property in Spearfish reachable only by the Thoen Stone Road, created by an easement and right-of-way to reach a historic marker memorialising the 1834 discovery of gold in the Black Hills. The City owns the monument and the surrounding park. The road has a locked gate at its northern entrance, which has stood for over forty years. The City gave the Turgeons a key; they say it sometimes malfunctions.
They sued for a declaration that the road is a public right-of-way, an injunction removing obstructions, and an order barring the gate. On cross-motions the circuit court held the road was not dedicated until 2012, that the City never accepted the dedication, and granted the City summary judgment.
Dedication and acceptance are two separate things
That is the holding to carry away, and South Dakota has a statute saying so. SDCL 11-6-33, quoted in the opinion:
“The approval of a plat by the council shall not be deemed to constitute or effect an acceptance by the municipality or public of the dedication of any street or other ground shown on the plat.”
A developer can dedicate a road on a plat, the council can approve the plat, and the municipality can still owe nothing. The road is dedicated and unaccepted — which in practice means the lot owners maintain it.
The reversionary clause, and what it proved
On whether the earlier 1953 easement had itself dedicated the road, the court's reasoning is a drafting lesson:
“the 1953 Easement contains a reversionary clause, stating that should the Thoen Stone marker be moved, the ‘site herein granted and conveyed’ shall revert to Thomson. This clause defines the limitation on the use of the 1953 Easement and also indicates that it was not intended to be perpetual or irrevocable. Such language in the 1953 Easement, therefore, is indicative of an intent not to dedicate the easement to public use.”
The court quoted Niemi v. Fredlund Township, 2015 S.D. 62: “[W]e do not presume dedication; the intent of the dedicator must demonstrate a positive and unmistakable intent to permanently abandon property for specific public use.” And from McQuillin: “It is vital to a dedication of property to public use that it be forever and irrevocable after acceptance,” with the corollary that “a reservation of the right to revoke defeats the dedication.”
Three features of the 1953 instrument together showed an intent not to dedicate: an express statement restricting access for a particular purpose, a restriction to the specific portion of the property containing the monument, and the reversionary clause.
Why it went back for trial anyway
The 2012 plat did dedicate the road, and the City did not expressly accept — SDCL 11-6-33 answered that. But implied acceptance was a live question the circuit court resolved on the wrong standard and the wrong record.
The court noted the City is itself one of the owners, and that its certificate of ownership states the plat was done at the City's request for the purposes indicated. It called that suggestive: if the City was only keeping the road open as a path to the park, why request a plat dedicating it?
The procedural error is the portable one. The circuit court required “clear and convincing evidence” of both dedication and acceptance, relying on Niemi — but as the court pointed out, “Niemi was resolved by a court trial, whereas the present case was resolved via summary judgment. This distinction is significant, particularly in light of our proscription against weighing evidence at the summary judgment stage.”
The disposition: the circuit court “failed to consider logical inferences from the facts we note above, and the court inappropriately weighed the competing evidence,” so summary judgment was reversed and the implied-acceptance question sent to trial.
What this settles for a South Dakota subdivision
A road shown on a plat is not automatically the city's problem. This is the recurring dispute in rural and lakefront South Dakota subdivisions, where the roads were platted decades ago and nobody can say who owes the grading. SDCL 11-6-33 is the answer to “but it's on the plat.”
The court also addressed a related misreading in a footnote, correcting the suggestion that approval of a plat or expenditure of funds establishes acceptance — noting that SDCL 11-3-12 provides in part that no governing body “shall be required to open, improve, or maintain any such dedicated streets” solely by reason of dedication.
A locked gate standing forty years did not defeat the owners' case. Long acquiescence in an obstruction was not treated as fatal, which cuts against an assumption many boards make about their own private roads.
The road-district alternative is worth knowing. South Dakota lets landowners form a road district under SDCL chapter 31-12A — a political subdivision with power to levy taxes and special assessments for subdivision roads. A 2024 Attorney General opinion notes that a county board “has no discretion to deny” formation where the chapter has been complied with, and that overlapping districts are not permitted. That is the structural answer where a city has declined to accept.
Our assessment limits page covers how road maintenance lands in an association budget, and water and drainage covers the easements that usually run with those roads.
What to watch next
The trial on implied acceptance. Whatever it produces will be the first South Dakota decision applying the implied-acceptance test to a modern platted dedication on a full record — and the facts the Supreme Court flagged as suggestive, particularly a municipality that requested the plat while owning part of the land, describe a situation that recurs whenever a city co-develops with a subdivider.
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