Untitled Texas Attorney General Opinion

~Honorable Clyde E. Smith; Jr. O&ion N+:M- 192 County :Jttorney .., Tyler County Courthouse ‘Re: ,Wh&her Tyler County or Wood’vilSe. Texas 75979 .-- .- thkutllits company must .’ War,,the ekpensi oi re- locating‘poles and other facll+tles of the utility . company:.lncldentto the Dear Mr::,&ith: ,,’ widening of a public road. ‘1x1your ~~ep&it~fdr opinion of this offic’eyou present the following queetldns whlah are.restatedaa follows: ‘1.. Is the:~utillty’ oompany or.the, cqahty re.sponslble for the, soe$ of ‘re&ocatin&pdles ena other facilities :ofthe util$ty .~aompany nece.tisitated, by .,the ,nidening OS ,a~coqntyroad ~$$’such polea~,aix3 f,acllltlesare loo&ted on the ,r%.,right-of+way in &IIarea covered by 3 ~3trlttim &id reoolided&i&nent dbtaihed by the utlllt, ” t. coinp&ny adjpl+ig ‘property,ownersub- :f~orn’~‘.kiq sdquqn ~, ~t&.thdj$bl’ic,: a0duir’lngthi:~~~+A.ng road rlg@t;of-*a? ,by prdec+ptlq,p? 2.. D@s~..$ong_.uee, iof.a .pox$$on.of.*such’s roak right- .@-way,,;:pi%?vioueSjr it$qu$+,,b,y:,$,hepubl,$c, ,by, pres- oriptipn~ b&ide.q &@~:~3cor&d ,e+sement give, the .’ .util*ty~:.,cti&ny pre;eciilpt$v* ,rlghtd. to’,%hat~portion 6f %he .tioap :Y,x$ght -o$+w&y:actu&lly~ueed’by’-them for dole& ‘tid.other:facliltles’? In r&krd to these quest&&; jou adilae that subsequent to .,the’ pUbl$o acquislng~.the right-of’-ivay in question by prescription, ~adjtil~l~property otineregave krittin:eastimeh$e.to a utility company _foP.$hd erectioh OT.poles.‘and other,‘lacilitiee,.wlthin the limits of the PredcriptiCe‘z%-id right-6f4ay Andythat these utility line ease- ments have,beenon record for a number of yeara and that the poles md other,tacilitieu ,were. erected a number ,ofyeara ago within the limit8 Of thd iWescriptiveroad right-of-way. This opinion is baaed Updn such stated facts, assuming the 8ame to be as etated and this -915- Hon. Clyde E. Smith, Jr., page 2 (M-192) office has made no Investigation or finding as to such prescriptive rights. As to such poles and other Sacllitles located within the rights-of-wajr of public roads, Article 1436a, Vernon’s Civil Statutes provides, ln part, aa follows: n .The public agency having jurledictlonor control if a highway or county road, that la, the HIghway Commission or the CommissionersCourt, as the case may be; may require any such corporation, at It,8own expenae, to re-locate Its lines on a State highway or county road outside the limits of an incorporatedcity or town, 60 a8 $0 permit the widening of the right-of-way, changing of traffic lanes,,lmprovement. of the road bed, or Improvement OS ‘drainageditches located on,such right-of-way by giving tiilrty(30) days wrltten notice to such cor- ‘,. poratlon and specl?ylng the line or lines to be ,moved, and indicating the place on the new rlght- OS-wq where such line or lines may be placed, . . * A person owning property encumbered by a prescriptive .eakementconveys or transfers any Interest In the same subject to ruch encumbrance. A purchaser of property subject to an easement that 18 openly used la charged with knowledge of the existence of the easement. Miles v. Bodenhelm, 193 S.W. 693.(Tex.Clv.App.1917, sami-es.) The alght f structures or other vlsable objects such as roads, wires or ~poles’cbnnected with or on land may reasonably sug- gest the existence of an easement. mrkley v. Christian, 226 S.W. 150 (!Cex.Clv.App. 1920, dimi. w.o.j.) ;Ztik the.‘oplniofiof this office that a utility company pukhaelng an easein&t’.upon,an area lying within a prescriptive road right-of-way would .do so with notice of the public easement and would take ‘kach‘easementsubject to such encumbrance,which in,turn would render’the relocation of the poles and other facilities, neoeeaitatedby the widening of the right-of-way, subject to the terms of Article 1436a. It Is, ‘therefore,the opinion of this office that the utility company and.not the county, under such circumstances,would be responsible for the coats of relocating such poles and other facllltlee. Article 5517, Vernon’s Civil Statutes, provides a8 fol- lows: -916- . Hon. Clyde E. Smith, Jr., page 3 .(M-192) : "The right of the State, all counties, lncor- ~' porated cities and all school districts shall not be barred by any of the provisions of this Title, nor shall any person ever acqulrt, by occupancy or adverse possession, any right or title to any part or portion of ariyroad, street, alley, sidewalk, or grounds which belong to any town, city, or county, or ,whlch have been donated or dedicated for public use to any such town, city, or county by the owner'. 'thereof,or which have been laid out or dedicated ln 'a?ymanner to public use Inany town, alty; or county In this State. z. ! The rights of the public ln,a p+escrlptlve road ease- ~mentrest on adverse, continuous, and uninterruptedu8e, which will ralsea preeumptlon that the owner of the ltid granted the easement, arrd'thatthe evidence of the grant'has been lost. Such a U8e raises an lrrebuttable'presumptlonof grant. Alexander v. Schleicher County, 291 S.W. 263 (Tex,'Clv.App.1927, affirmed ~:~ex.Comm.App. 1928); Rhodes v. Whitehead, 27 Tex. 304 (18 .and Shepard v, Qalveston,A. & H.R. C0.3 22 S.W. 267 (Tex.Clv.App. 1893, no wrio~~.. 'It l'sthe opinion of this office that your second ques- .' tlon should be answered In the negative lnasmuoh as %ch use by # the utility company under its recorded easement could never ripen prescriptiveright against the public by reason of said lntti'ir Article 5517. : .SUMMARY ,The utility company is responsible for the costs of relocation of their poles and other facllltles ln- cident,to the widening of a county road'where such poles and'facllltlesare located on a prescriptive road rlght- oi-wa$ In an area aovered by a written and recorded.ease- mi?ptobtained by such utl3lty company from adjoining property owners subsequent to the publla acquirzu",f: existing road right-of-way by prescription. o? such portion of the road right-of-way~bysuch public utility company under a recorded easement could not give the,utllity company any prescriptive rights to any portion of the road right-of-way actually used by It for polee and other acllltles. /9 Eon. Clyde E. Smith, Jr., page 4 ( M -1 92) Prepared by Charles W. Yett Assistant Attorney &meral APPROVED: OPINION COMU!l'TER Hawthorne Phllllps, Chairman Kerns Taylor, Co-Chairman Don Cumngngs Jack Sparks .DavldLongorla Harold Keqnedy .' A. J. ~ARtXS.81, JR. Staff',Legall,Asslstant