THE ATTORNEY GENERAL
OF TEXAS
May 22, 1957
Honorable Fred F. Holub
County Attorney
Matagorda County
Bay City, lkxae
Opinion No. WW-125
ReS Authority of County to relm-
buree Pipe Line Company ‘for
expenses Incurred by virtue
of acquiring right of way
where there le a pre-existing
pipe line.
Dear Sirs
The Sollonlng queatlon wae presented in your recent
letter8
“The question that Is presented here Ls that
when the State Hlghway Commlaslon takes over an
exlrjtlng County Road for the purpose of con-
atructlng a F.M. Highway and requeeta addftlonal
rights of way to be purchased by the County for
a wider right of way than originally included
In the County road right of way, and said old
County road Ian crossed by a pipe line of a common
carrier, must the County pay said common carrier
for meeting State apeolflcations In lowering
and additional oaelng of the pipe line under
the widened portion of said right of way%*
In your letter you also offered the following com-
ment a
“It would appear, taking into eonalderatlon
Article 6022and 2351 that although the oommon
carrier would have the right to cross a public :
road; where same is a County road under Article
2351, the Commls~loners Court in its exerelse
of general control could control the methoU of
Ihorable #red Fe Holub, page 2 (W-125)
crossing and the looatlon oi ocos~lng. Here
In this caee, had 8he comaon oafiier mde a
Sonnal notlee OS urofmlng, the Oomlsalonerrr
Court, could, It would be masoneble to assume;
foresee a futulr ridenlng of sald road and m-
wire the croestng to provide ior Suture widen-
Ingo M It appeam.that no formal approval or
notice of crossing was promFed by the commn
carrier, it would appear that now any addltlonal
casing or lowering shotald be doan at the expenao
of the comon darz%er.”
We refer you to Opinions -115 aW -78 (uhioh alw
en.closed)holdlng, In eifect, that the expenses for XWloation
of’ a utility on right of way alrerdy aubileot to publio use,
must be bone by the utility rather than the publloo !kUOWW,
your question 88. prebaented was limited to the propoaltion of
whether or not n?lmburaerahnt was reqwlnd tq be paid to tha
pioe 13114~common carrier Por rrntlng State apeeifloetlcma ln
1aPering rcM addZtlonaX ‘orslng of the pip% tiab un#r the new
;;t”,~-&ymht~~o~~~~~ lbgBa&Bg~
which you rntlo?Wd 7oII lud in .7Iwls h-, 6~s H 60 Wt#’
lpeasupe of daeg is, B O&N%- -84t4
+%%lelrfoaN’; lte sib -a* ena qanlag e&i’-
rhezw the lee3 ~hel3 perwl~ sada 0oPpoFqtion
as above akntlonad to eTeol 8lkl emafrfi& i&I
lines under and aemau pI&llc Foatle, and whim3
the county mqtix%?,a the ‘aUditiona Mght of way
for new highwayEi OP publie roads over and acroaa
.; the pHvate property of the above aeneloned
corporation, the cow@7 vould b&liable bo se5d
:
.,.?
, CIVD Ame 191, IIWR,
156 s.w, 2:
‘It hepi long been the rule in this atak that
3.s ‘~by.: the taking of a portion of one03 land
.’ for pub110 u8e it becomes necessargr fo build
fences, constrwt gatee, culverts and other
things necessary to make ths remainder usable
and to prevent pester losses sustained by the
: 2
.,
. .
: . i
!
Honorable Fred F: Holub, page 3 (WW-125)
appropriation of that part taken, evidence
of such expenses thus Incurred should be
considered by the jury fn fixing the amount
of damages to that part not appropriated. m 0 .”
Also, see Plllot v. City of Houston, Clv. App., 1932,
NWH, 51 S.W. 2d 794.
* Should this right of way have to be condemned, the cost
of buryltig and providing additional caning would not be a aep-
arate issue, but should be coneldered In the general Issues of
the before and lifter Va?iu?a of condemneels property. IS, however,
thle right IS acquired by but’of court settlement, It seems that
there would,.be no other way to compute what the plpe line company
la entitled to but by~.conslderlng the 008 t of reburying and pro-
viding ad~ltional~6a~lng, and ltla considered that this Is sup-
pbrted by ample authority a8 above set forth.
.
You pointed out, aa above quoted, that you considered
this situation different because the pipe line utility had not
secured’ ‘permleslon of the Commisslonere~Court to cross the ex-
~latlng’road and that “it would be reasOnable to assume” that the
Commlsaloners ‘Court would “Sore&e a Suture widening of said.
roads .alid require the crosalng to provide for Suture wlden-
lngo 0 0” and Sor’that reason there should be no llablllty for
Mburylng and providing additional casing on the gortlon taken
Soy ney, or additional right of way.
It la submitted that this propoeftioc has been decided
adversely to your contention in Hammon v. Wichita Count& Civ.
AP~Q, 1956, 290 S.W. 2d 545 (no wrlt history) a
“Wichita County has no right to destroy
appellant OB property prior to the lawful
appropriation thereof by paying or securing
the pamnt of compensation. Cltjr of Fort
worth v. Dletert, Tex, Cfv, Appoe 271 S.W.
2d 299, error refused.
“Conversely, the Coanty has no right to
PeatFaIn appellant from making lawful, use of
his property prior to a legal taking thereof
by the County.”
Hence, amumlng, wtthout decidlzg, that the statutes
Impose upon the pipe line common carrier the duty of clearing
with the Commissioners8 Court before crossing a county road,
C._ c
. .
L ” :
Aonorabl? Fred FI Holub, page 4 (WW-1%)
..
and even aasumlng that the Commlsalonerp@Court has foreseen
the widening, it could not have required the pipe line common
carrier to make special preparationa, at additional exense,
on land not In the then exlatlng right of way a8 euch would
have been a restraint upon the use' of private property prior
to a legal taking thereof.
W@ere a pipe line croaa,e8 under an
exlrting county road, which road lb de-
slnd by the Btate'aa a Fati to Market
road, and additional Mght of w&y la re-
quired to widen the’ road, the governmental
authority aectilng this additional right
of way la authorlzed'to pay thi pipe line
oommon carrier for expetia&a lncurred'ln
meeting state ppeclficatlona which apeol-
Slcatlona require the lowering of the pipe
line and additional casing therefor under
the widened, or newly acquired, right of
way.
Youre very truly,
APPROVED:
OPINION COMMITTEE
Ii. ffrady Chandler, Chairman
FPed Werkenthln f
Ralph R. Rash
Jas. W. Wilson
&VIEWED FOR Ti33 ATTORXXY
OENXRALBY:
Ceo. P. Blazkburn