GENERAL
April 29, 1949.
Ron. Eulon c. IL911 Oplnlon Ro. v-819.
County Attorney
ffrlmeacounty Re: Authority of ,theComlimlonerd
Anderson, Texas Court to require removal of a
private water line crossing
public streets in an upinaoc-
porateb town.
Dear Mr. Hall:
In your request for an .oplnionyou state that
the Commls3loners~Court OS Or*ea County~lss~eaa fran-
chit30to ths~Gulf ,CoastWater Company in 1930 ~grantlig
them the'prlvllegeof ,lay.$ng pipe and selling,wa*r~to~
the public in some fouz'or fire unlncorporated’,toMm l.i-
@&.ng the town of Iala; Some iew VeekS ago;‘,& rdsl: '~
dent of the town of Iola drilled a private well'on hlzf
res+lencs for his prlrciteus4 and benefit. Th$s lndlvl-
dual dealrIng to pipe water to hle barn some four blocks
away layed his pipe acro88 two streets and one alley In
the unlnoorporatedtovn of Iola. The stmets 'OSIola
are maintained entirely by the Commlssloners~Court of
ffrlmes County. This resident made applloatlon for per-
mlsslon to lay said pipe acrow such streets;- It was
denied by the Commlsslonera~Court.
You ask the followlug questionr
%~@a the Conmissloners~ Court a? t3Mmes
County, Texas, have the authority to Issue an
order to this resident ln Iola, Texas, requlr-
lng him to remove his plpea from the publio
streetsf"
We know of no rule of law whloh would prevent
the County 'orState from owning a.fee simple interest In
the streets of Iola, Texas, Inasmuch aa the same Is uu-
mcorporated, but for the purpose of this opinion we are
assumlng that the public only has an easement In the
streets .umlercouslderatlon. Therefore, nothing 1s to
be construed in this opinion as indicating permlsslon
for the laying of pipes underneath the streets in ques-
tion should the County or State have an interest in the
eon. Rulon C. ~111, Page 2 (V-819)
right-of-way other than an easement. We further assume
that the pipes will not constitute an obstruction to the
street.
In an oplnlon numbered V-730 by the Attorney
General, dated December 10, 1948, it~was stated that a
Commlssloners~'Court did have the authority to assume
control over streets and alleys In an unincorporated
town.
The primary design In laying out and construct-
ing streets Is for the purpose of travel and passage for
the public. Rights aa to Ingress end egress, nearly re-
sembling private rights, are given abutting owners. Hav-
lng exclusive control over the streets, the Legislature,
or those to whom It has delegated powers over streets,
have the right and authority to Impose reasonable terms
and conditions upon the right to use them. Subject to
rlghta of abutting owners, atreeta may be closed to all
business traffic, the speed of vehicles regulated, ob-
structions may be prevented or removed, llcensea to use
the streets may be required, travellera may be required
to obey the direatlons of police, vehicles having heavy
loads may not be permftted on certsln streets, or be re-
quired to have wide tires, the weight of loada may be
limited, and hacks may be compelled to remain at certain
stands. These are only part of the many regulations
that have been held valid. 3 Dll.lonon Municipal Corpor-
ations (5th ed. 2911) 1849, Set, 1163-1167.
In the case of S. H. Kreea & CO. V. City of
82 SO. 775, 7 A.L.R. 640,m.a.
M~CUII~, SUP. 19191, the
court atntea as followsr
n
.theright of the owner of the fee
in a eiriei to use the subaurfaoe Is the same
a8 Is other property, a0 long as he does not
interfere with the rights of the municipality
belov the subsurface, or sewers, or pipes, or
water, or other public purposes, it follows
that the owner haa the right subject to rea-
sonable municipal regulation to make openings
In the sldewalks to gain access to the area
beneath. . e ."
2 Elliott on Roads and Streets (4th ed.) 1142,
reads aa follows:
HOG. Hulon C. Hall, Page 3 (v-819)
"Subject only to the public easement --
the proprietor haa all the usual right8 and
remedlea of the owner of a freehold. He may
sink a drain below the subsurface of a road
If proper care be taken to cover It so that
It shall remain safe and convenient. He may
carry water In pipes under the way and he
may mine It.'
In the case of ColoRrove Water Co. v. Holly-
wood, 151 Cal. 425, 90 Pac. 1053, 13 L.R.A.(lV.S.J904
m7), the Court stated:
"The abutting owner of the fee of a city
street has the right to lay a water pipe for
his own 1~34beneath the subsurface ao far as
he can do 80 without lmpealng the public use,
and, for that purpoae, may excavate the soil,
subject to such restrictions by the muulclpal-
Ity as will Insure the least Interruption to
the public eaaement.n
In the case of Clutter v. Davis, 62 S.W. 1107
(Tex. Clv. App. 1901, error refused), the Court stated
aa Pollowa:~
"When the sovereign Imposes a public
right-of-way upon the iana 0s an 3.nalvlaua1,
the title of the former owner la not extln-
gulahed, but la so quallflea that It can on-
ly be enjoined subject to that easement.
The former proprietor still retains 4xcluslv4
right In all mines, quarries, springs of wa-
ter, timber and earth for every pu~poae not
Incompatible with the public right-of-way."
In view of the foregoing It Is our opinion that
your queatlon should be answered la the negative.
Thla opinion la not to be construed as passing
upon the rights of Individual owners if such water pipes
should be acroaa some Intervening own8rta land.
SUMMARY
The owner of the fee in a street haa the
right to use the subsurface ao Zong as he does
not interfere wlth the rights of the munlcl-
pa1lty.
Hon. Hulon C. Hall, Peg8 4 (V-819)
Aaaumlng the County only haa 8n easement
and there la no public obatructlon, the Com-
mlaalonera~ Gourt would not have the authority
to require au abutting owner to remove pipes
underneath atreeta in au unlncorporat4d town.
You-8 very truly,
ATTORREY GENERAL OF TEXAS
BW:bh Assistant
APPROVRD
2. /6cQiiM
e
FIRST ASSISTART
ATl'QRlcEp
GENERAL