Untitled Texas Attorney General Opinion

ORNEY GENERAL OPTE~AS Grover Sellers Hon. D. C. Greer Opinion No. O-5910 State Highway Engineer Rer Does the F.W, & D.C. Railway Texas Highway Department Company and the City of Memphis, Austin 26, Texas Texas, have authority to make the exchange of property herein stated? Dear Sir: We are in receipt of your recent request for an opin- ion from this department on the following state of facts: "The F.W. & D,C, Railway Company has a 200 foot right of way through the city of Memphis. The city has con- structed a street 40 foot wide on each side of and paral- lel to the railway right of way. The proper location for highway U. S, 287 is onthe 40 foot street, on the west side of the railway right of way, however, it will be ne- cessary that a minimum right of way of 70 feet be secured, There are many buildings and other improvements on the west side of the street which would have to be moved in order to widen the present 40 foot street to the west, however, it may be that the railway officials would be willing to give to the State or the city of Memphis an easement on 30 feet off the west side of their 2C0 foot right of way in exchange for 30 feet to be added to the east side of their right of way. This, of course, would include 30 feet of the present 40 foot city street on the east of the railway right of way leaving only SO feet of the original 40 feet, In as much as there is very lit.tle improvement on the east side of the railway the city of Memphis may acquire an additional 30 feet of right of way adjoining the east line of the present city street on the east side of the railway thus restoring ,thestreet to the original width of 40 feet, "Before presenting this plan to the officials of the railway company and the city of Memphis will you please advise us if the railway company and the city of Memphis have authority to make the exchange hereinabove outlined. A rough pencil sketch is attached hereto for your further information.V8 The facts in this request are insufficient, in that it is not stated whether the railroad owns the right-of-way in fee simple or merely has an easement over same0 We wil~l Hon. D. C. Greer, page 2 CO-59lP) endeavor to treat this matter under both assumptions. At the very outset of this opinion we wish to make it clear that if the right-of-way of the railroad company is an interest less than fee simple, it must be condemned for highway or street purposes. 16 Texas Jurisurudence. nase 681. provides as follows: "Hut'it is a fundamental proposition of eminent do- main that land that has been condemned for one use may not be permanently used for another and different one." In the case of O'Neal v. City of Sherman, 14 S.W. 319 plaintiff executed a deed to the city conveying a piece of property for street purposes only, and the city in turn deliv- ered the land to a company that had a contract to drill a water well for the city. The Supreme Court held that the city could not appropriate such land for the purpose of maintaining water- works. See also Muhle v. N.Y. Tex.Mex. R.R., 25 S.W. 607. Now if the railroad company owns the property in fee simple, the railroad company has a right to convey same in fee simple or any lesser estate to the city. A title 6341, Vernon's Annotated Civil Statutes, pro- vides as foflows: "Railroad corporations shall have the following other rights: "6o To purchase, hold and use all such real estate and other property as may be necessary for the construc- tion and use of its railway, stations and other accommo- dations necessary to accomplish the objects of its incor- poration, and to convey the same when no longer required for the use of such railway. "7. To take, hold and use such voluntary grants of real estate and other property as shall be made to it in aid of the construction and use of its railway, and to convey the same when no longer required for the uses of such railway, in any manner not incompatible with the terms of the original grant." 30 Texas Jurisprudence, 354, states that cities have the authority to buy and sell property, said authority being granted by the following Articles of Vernon's Annotated Civil Statutes: Hon. D. C. Greer, page 3 (O-5910) 4 states that after the city has complied with the incorpora - on statutes it shall: e* * + have the power to sue and be sued, plead and be impleaded, and to hold and dispose of real and personal property provided such real property is situated within the limik of the corporation.f' Article 962: tlAllthe inhabitants of each city, town or village so accepting the provisions of this title shall continue to be a body corporate *** and in all matters whatever, may take, hold and purchase, lease, grant and convey such real and personal or mixed property or estate as the purposes of the corporation may require, within or without the lim- its thereof; ***'l The following Articles of Vernon's Annotated C;viP Statutes,specifically provide that the city has the right to condemn property of railroads: brticle 1149: "Any town or village in this State, incorporated un- der this Chapter or by special charter, shall have the right, and they are hereby empowered, to condemn the right of way and roadbed of any railway companywhose road- bed runs within the corporate limits of such town or vil- Iage, when deemed necessary and so declared, by a majority vote of the board of aldermen.,for the purpose of opening, widening, or extending the streets of such town or village; ***If Article 1150: llCountycommissioners shall have the right, upon petf- tfon of twenty freeholders of any community, or unfncor- porated town or city, to condemn roadbed of railroads for the same purpose mentioned in the preceding article." It is therefore our opinion that the city has the right to condemn the property of the railroad for highway or street purposes. Assuming that the railroad merely has an ease- ment, it would be advisable to make the original grantors par- ties to such condemnation proceeding, Assuming that the railroad company owns the right-of- way in fee simple, the city has a right to the west 40 feet of Hon. D. C. Greer, page 4 (o-5910) same for highway purposes; but we are unable to find any au- thority that would permit the city giving the railroad company the exclusive use of the 30 feet on the east of said railroad right-of-way which has been dedicated as a public street. Trusting this answers your inquiry, we are Yours very truly ATTORNEY GENERAL OF TEXAS By /s/ W. P. Watts W. P. Watts, Assistant APPROvED MAY 4, 1944 /s/ Geo. P. Blackburn (Acting) ATTORNEY GENERAL OF TEXAS APPROVED: OPINION COMMITTEE BY: OS, CHAIRMAN WFW:EP:wb