Untitled Texas Attorney General Opinion

March 6, 1961 Mr. Ellis A. Oualline, Jr. County Attorney of Montgomery County Conroe, Texas Opinion No. W-1004 Re: Whether Commissioners' Court may require gas pipe line company to move or lower its pipe lines which are now in, along, or across a new right of way location to be purchased for a prospective farm-to- Dear Mr. Oualline: market road. Your request forkan opinion is in the following language: “TheCommissioner‘8 Court of Montgomery County nas requested Informationthat goes beyond your opinion No. W’tf-961. They are purchasing right-of- way on which the State of Texas will construct a farm-to-marketroad, .a 'May the CommlsslonertsCourt of Montgomery County require gas pipe line companies to move or lower their pipe lines along or across this right- of-way for the proposed road without paying them compensationtherefor?" Our holding in Opinion No. w&961, to which you refer, is reflected in the "Summary"thereof, which we quote: "The Commissioners'Court of Sherman ~County, Texas, is authorizedto require gas pipeline com- panies, whose lines run along or across public roads which are to be paved, to move or lower such pipelines at their own expense and without reim- bursement from the State. That opinion pertains to a pipe line which had been laid in an existing street. Our conclusionswere based upon State v. City of Austin, Tex. -, 331 S.W.2d 737 (w6o), Mr. Ellis A.. Oualline, Jr., page 2 '(W-ldO4) which in turn is predicated upon Section 1 of Article 1436b, V.C.S. We quote the applicableportions of that statute: "Section 1. Any person, firm or corporation or incorporatedcity or town engaged in the business of transportingor disbrlbutlnggas for public con- sumption shall have the power to lay and maintain pipes, mains, conductors and other facilitiesused for conductinggas through, under, along, across and over all public highways, public roads, public streets and alleys, and public waters within this State; provided that within the corporate limlts of an incorporatedcity or Incorporatedtown such right shall be dependent upon the consent and sub- Ject to the direction of Its governing body.,. . . The public agency having jurisdictionor control of a highway or county road, that Is, the Highway Commission or the CommissionersCourt, as the case may be, may require any such p'erson,firm or corpor- ation or Incorporatedcity or town at its own expense to relocate,itspipes, mains, conductorsor other fixtures for conducting gas on a state highway or county road outside the limits of an Incorporated city or incorporatedtown so as to permit the wlden- lng or changing of traffic lanes. . . On (Enighasis Added) It is thus seen that pipe line companiesmay lay their pipe lines in existing highways, roads, streets, etc,> but, in turn, may be required by the governing authorlty to relocate them so as to permit the widening or changing of traffic lanes. A different situation exists In your case. Your letter to the Attorney General dated February 4, 1961, supplementing information~in your opinion request, makes lt plain that the proposed farm-to-marketroad is on new location and that the pipe line in question is on private property. This being true, there is no statute or law by which the pipe line company can be required to move or lower Its pipe lines. Doubtless this pipe line lies within an easement secured by the company from the owner of the land. Section 17 of Article I of the Constitutionof Texas states: "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensationbeing made, unless by the consent of such person." Mr. Ellis A. Oualline, Jr., Page 3 (WIG1004). If by negotiationyour Commissioners1Court cannot per- suade the company to move this pipe line you will have to pay it therefor. If a price cannot be agreed upon you will have to condemn the easement, of which the pipe line Is a part. If the Commissioners1Court cannot agree with the owner of the fee on the value of the land thcna condemnationsuit should be brought jointly naming both the fee owner and the pipe line company as condemnees. In answer to your question, therefore, it is our opinion, and we so hold, that the Commissioners'Court of Montgomery County may not require a pipe line company to move or lower its pipe lines from the private premises upon which a future road is contemplated. SUMMARY The Commissioners1Court may not require a gas pipe line company to move or lower Its pipe lines which are now in, along, or across a new right of way locationbeing acquired for a proposed farm-to-marketroad. hi ~..' ~Yours very truly, WILL WILSON Attorney General of Texas wRs:vj APPRCVED: OPINION COMMITTEE W. V. Geppert, Chairman Jerry Roberts Riley Eugene Fletcher Thomas Burros REVIEWED FOR TRE ATTORNEY GENERAL By: Morgan Nesbltt