5514
~EA'llTORNEYGENEltltAL
UDF ?B?ExAs
February 16, 1962
Honorable Fred P. Holub Opinion No. ~~-1263
County Attorney
Eay City, Texas Re: Authority to grant an
easement for a gas pipe
line along a county road
acquired by prescription.
Dear Mr. Holub:
You request our opinion as to whether the Matagorda
County Commissioners Court may grant an easement to a gas pipe
line along the right-of-way of a county road, which road was
acquired by prescription as a result of long continued public
use and maintenance.
Article 1436b, Vernon's Civil Statutes, gives to
parties engaged in the business of transporting or distributing
gas for public consumption the right to lay pipe lines within
the rights-of-way of all public roads. The lines inquired
about are part of a gas gathering system, the gas being ul-
timately distributed for public consumption.
Said statute itself confers the right on gas companies
to lay the lines within a right-of-way, but it requires that
notice of intention to lay such lines along a county road must
be given to the County Commissioners Court, which then has the
option to designate the place on the right-of-way where the
pipes are to be laid.
Your opinion request annears to have been precipitated
by the contention of fee owners of the tract containing the road
in question that the prescriptive easement owned by the public
is for road purposes only, and that only the owners of the fee
in the land may grant an easement for the laying of pipe lines
under the road.
The rule of law applicable here, in our opinion, is
set forth in Continental Pipe Line Co. v. Gandy, 162 S.W .2d 755
(Civ.App. lgbi, error ref. w.m.). When the Driscoll Ranch in
Nueces County was subdivided, a plat was filed of record con-
taining a dedication to the public of a 40 ft. road. With the
consent of the county, a telephone line was built on said road
by an oil pipe line company. The abutting owner, whose consent
Honorable Fred P. Holub, page 2 (~~-1263)
was not obtained, sued for damages and for an Injunction re-
quiring the line’s removal. The court held that the abutting
landowner had no rights In the road superior to any other
member of the public, and that the property rights of such
owner had not been violated. The court said:
“The construction and operation of
common carrier pipe lines are now recog-
nized as necessary and lndlspenaable to
a proper and economical exploitation of
the petroleum, natural resource. They
are of great Importance to the public.
Private property ownera, the producers of
crude oil, and the public are interested
In the expeditious and economical trans-
portation of 011 from the producing fields
and the-distribution of It to the consuming
public and. industry. Pipe line transporta-
tion is the best mode yet provided. The
public has an Interest in relieving other
means OS transportation and its highways
of the burden they would have to carry but
for pipe line transportation. Hence the
Legielature has recognized the pipe line
as a convenience and modern neceeeit;y and
a business of public concern, . , .
The quoted language dealing with oil pipe lines would appear to
be equally applicable to gas pipe llnee.
The fact that the public road was created by prescrip-
tion rather than by dedication or grant is immaterial. In
Phillips v, T. & P. Ry, Co., 296 S.W. 877 (Comm.App., 1927),
t ts aalas
“A right by prescription rests upon
the presumption that the owner of the land
has granted the ease$ent, and that the
grant has been lost.
To the same eff’ect, see Boone v. City of Stephenvllle 37 S.W.2d
842 (Civ.App., 1931); 283 J S b41 Eaeements, S 6; 21 Tex.
Jur.2d 151, Easements, Sec.1 i5: !f&, since a gr% is presumed,
a prescriptive easement stands on the same footing au a granted
easement.
Prescription and title by adverze poeeesslon follow
substantially the same pattern, except that in the iomer only
an easement results, whereas In the latter full title ie ob-
tained. AQ bald in 2 C.J.S. 512, Adverse Poseession, Seo. 1:
5515
Honorable Fred P. Holub, Page 3 (~-1'2663)
"Prescription and adverse possession,
while differing in certain respects, are
essentially the same in that both confer
rights in property through the medium of
adverse enjoyment."
Both prescription and limitation title are based on presumptions
of lost grants.
Article 5513, V.C.S., declares that limitation title
is "full title, precluding all claims." It has been held that
title by limitation is as good as if acquired by patent, Bridges
v. Johnson, 69 Tex. 71, 7 S.W. 506 (1888), and is as legal as
one acquired by purchase, Wagers v. Swilley, 220 S.W.2d 673 (Civ.
App. 1949, error ref., n.r.e.).
In 28 C.J.S. 676 Easements, Sec. 22, it is said:
"Easements acquired by prescription
stand in all respects on the same footing
as easements acquired by grant; the title
and right so acquired are as perfect and
absolute as those acquired by grant; and
the owner of the servient estate is estopped
to question them, as against the owner of
the dominant estate."
We conciude that a prescriptive public easement in a
road gives the public the same rights therein as it possesses
in a road easement acquired by grant or dedication.
We next consider the nature of the rights in such a
road that may be awarded by law to third parties. In McCammon
and Lang Lumber Co. v. Trinity & B.V. Ry; Co., 104 Tex. 8, 133
S.W. 247 (lgll), the court held that the laying of tracks for
a steam railroad along a dedicated road and alley constituted
a taking of property from the fee owners requiring compensation,
and upheld the right to an injunction against such taking. This
decision was followed in T. & N.O. Ry. Co. v. Thompson, 194 S.W.2d
123 Civ.App. 1946 error ref,); City of Orange v. Rector, 205 S.W.
503 Civ.App. 1918 and Pecos & N.T. Ry. Co. v. Falls, 96 S.W.2d
430 iCiv.App. 1936i, all involving steam railroads.
In Galveston-Houston Electric Ry. Co. v. Jewish Literary
;ocitety,192 S.W. 324 (Civ.App. 1916, error dism.), it was held
ha the laying of two sets of tracks in a street and the operation
of an inter-urban railway thereon was not a taking of the fee. The
tracks involved appear to have been the equivalent of street car
tracks and did not prevent vehicular travel.
Honorable Fred P. Holub, page 4 (~~-1263)
The Gandy case, supra, distinguished the McCammon case
on the ground that the operation of a steam railroad amounted to
"an almost, if not quite, exclusive appropriation of the street
or highway." Clearly, in the case of the proposed gas pipe line,
there would be little, if any, interference with travel. In fact,
Article 6021, V.C.S., provides:
"The right to run pipe lines along,
across, or under any public road or high-
way can only be exercised on condition
that the traffic thereon be not inter-
fered with, and that such road or highway
be promptly restored to its former con-
dition. . . .'
The proposal of the gas company involved herein states
that the 4 inch pipe line will have a 36 inch cover meeting the
approval of the Commissioner in that district, and that the right-
of-way will be cleaned up to the satisfaction of said Commissioner.
It follows that we are of the opinion that under Art.
1436b, V.C.S., the gas company is authorized to lay and maintain
the pipe line in question, after giving notice to the Commissioners
Court as required in said statute.
SUMMARY
Companies engaged in the business of
transporting gas for ultimate public con-
sumption may, under Article 1436b, V.C.S.,
lay their pipe lines along the right-of-way
of a county road acquired by prescription,
after first giving notice of such intention
to the County Commissioners Court.
Yours very truly,
WILL WILSON
Attorney General of Texas
JAS:ljb
Honorable Fred P. Holub, page 5 (~~-1.263)
APPROVED:
OPINION COMMITl'EE
W. V. Geppert, Chairman
Pat Bailey
Elmer McVey
Milton Richardson
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee