Untitled Texas Attorney General Opinion

‘., -

OFFICE. OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Honorable Ii. Pat Edvards
civil Dls trlot At torne3
Dallas, Texas

or088 Sam, and ‘..
ted qllestidng,

recent request for
an 0plnLon h3 t trw four follow-
irk su?xAtted qu

ndamn an easePent
an deemed necea-
r Of th8 COlUUiS-
098 of extending a
road across said
conneat the ssme vlth

fact that four railroad tracks

3. Can such a condemnation be had forI ar?d
restricted to, pedestrian traffic onlyl

4. If a railroad canpsny should voluntarily
grant a public easement over OF under its rlght-

..
 .
~~snol-.nble
R. pnt ;XIvaXls, ?S.~e 2

of-w3 connsct.lr~ two gubltc roads, vb:ch by the
express terw of ths dedlastion 1s restricted to
nedestr&3n use e, by the public 5~ ~en9r31,
&nd uhlch dadlcatlon is further condditioned up-
on the counties construttlng and msL-,tzInniz:
sam9, end thu oommlo310n9rs1 court 13 cf the
0pLnZon that such passage will be of 2ublLc
benei'lt and th3t a nsccsslty exists for such
passaGe for pub110 convenience and safsty, can
Dal.lss County lszslly ua9 the Road t;SrLdse
ZQnd or tk;e Ceneral Fund fcr tko con3tructlon
and me'~tensnce of ssm9?

Prom ycsr letter dated :-fag28, 1933, we cuote the .
follo*&-n;:informs tion relstlve to tha cue3tLon subikttsd:

"Tha fscts are 08 follorrr: WC lsnd to be
condemned by I%~llss Cotltrty13 a Fart oi' E rail-
road rfghht-of.usy and road bed, Lt vLll ,tzverse
four rsilrosd trecko; the scme is situsted In
Callas County in n commn.nLty which I3 not an-k- _-.
coqonted city, v:lls~e or town; the enssment
desked is Car the yJ.rjlooeof ccNl3c:"-r?;:
two
?rerLously dedictted end estsblL3hed ydblic
roads."

An oxanins';ion of the lmm of Texss reve.tls thzz
\-oth genorsl and spec4sl lnvs 879 cvailable to th9 Xll,zs
i3-Q s\;thcM.tlea named thorein for tke 7~~093 OS acq~~lr
Iq necessary property to be wed in the sstnblL3'hm9nt and
.o;enlx of public -cads znd ‘hi;;?--ey3.

T?-tle 116, Chapter 2, Revked tXv!.l Stzt'Jtcs, or-
~Lcles 6102 6716 In Vernon's Annotated Civil Ststtites, a
;ensrzl lc~v, sets out on9 procedurs f9r the cond~~ztiou oi'
goperty for public road j~~urpooea. Fr-oizMtic19 67Cz-, ve
q..ote :n snrt a3 frjllovn:

,
 .

Iionorable H. Pat i3dv3rds. Page 3

Article 3264 et SW., V.A.C.S., ths noet cozzmon
of the ;;eneral laws on condemnation, provides undsr ArtIcls
3254a, In part, as follovs:

“The rtght of Eminent Dcmaln is hereby con-
ferred u?on countlee of the State of Texas for
the purpo,oeeof condamnlrgg and acqulrqng land,
right-of-vay or easement in land, private or
public, except property used for cemetery pur-
posss, where eaid land, right-of-nap or easement
Is necessary in the oonstruction of jails, court- .
houses, hospitals, delinquent and dependent
schools, poor farma; libraries, or for other o1.2~~
~,F~nmpor~s. vh9re such purpose is nov f’ nay
s autaorieed by the ConstitntAon or
statutes of this state.

“All such conckmnat~on groceedfap shsll be
Instituted under the direction of the coaxz:ssion-
em ’ court, . . . *” (Underscoring ours)~

Articles 1150 and 1149, ‘J X.C.S. provide 59t another
method by which property neceassry Zor the construct:oc of
public roads map -be acquired by condemnat’Lon. Fran Art:.-19
1143 v4 qUOt8 ti part a8 fcllcvsr

9Any tovn or village in this atste, incor-
porated under thls chaptar or by s~peclal charte:,
eh611 hvc3 the K&t, aad thsy 3rr3 he,ze+j eapw-
ered, to condsmn the right-of-vay and roadbed of
any ra:lvay company vhose roadbed runs vlthin ths
corporate l&nits of such tovn or vLllas;e, vhcn
deemed necessrry and 80 declared, by a majorit;
vote of the So.nrd OP Aldermen, for the purpose
of openiq, v:dealng or extending the atroeta of
such tovti or villg~e; provided, there 3rd less
than four rsllroad tracks. . . . .’

And Article 1150, vs quote in full .as follovs:

“County commissioners shall have the rlsht,
upon petftlon of tventy freeholdors of zng com-
nunLt.y, or unincorporated town or cites, to cc+9mn
‘donorable Ii. Pat Edwards, Page 4

road beds of railroads for the same,yrpose
mentioned in the preoeeding article.

Acts 1941, 47th Leglsl.ature, Re8ular Sesoion, Chap-
ter 458, House Bill 961, 1s a special lav enacted to create
a more efficient road system for Dallas County, portibns of
vhich speak1 law, psrtinent to this opinion, ve quote aa
follows a

“sec. 6. The oommisslonars~ court in said
oounty shall have the right to con&m any pro-.
pert7 necessary for the openIn& widendng, or
‘malntainlag of a publlo road . . . .
R . . . .

n provided, houever, the provisions
hereof s &&llative of the present lsvs relat-.
lng to condsmnatFan and the conraissioners’ court
may proceed under the provisions hereof or under
the provisions of the General Laws vith refer-
e.?oe to the condemnation of right-of-Ysp b7 rail-
roads or hy jury of vlow.

“sec. 24. The provisions of tUs act ars
and shall be held and construed to be cunulotive
of all Goneral Laws of this state on the subject
treated of snd embraced in this aot vhsn not in
conflict herewith, but in case of said conflict,
in whole or in part, this aot shall control
Dallas County; . , . .”

In the light of the ststutes hersinabove enumerated,
It 1s the opLnion of this department that Dallas County may
condemn an easenent over a railroad right-of-way vben deened
necessary for- the purpose of extending a regularly dedicated
county road across said railroad right-of-war, in sccordance
uith the condaatlon procedure set out in Artiols 6702 et
seq.; In Article 3264 et seq., V.A.C.S.; or in Dallas County
Special Road Lav hsrein rofsrred to as 5-e Bill 961. The
provisions of these statutes confer the rrocsed under the provlsf.ons of either of these statutes
Ss, ve thiuk, settled undsr the deciklon end ~3339 sst out
‘a Tarrant County vs. Shanuon, 129 Texas. 264, 104 S.W. (2d)
3, rev3rsing the Court of Civil Agpsals, 9 S.W. (2d), 934,
vhLch exDressly overruled O’Keefe vs. !iudspath County, et
al., (Tsx. Civ. App.) 25 S.W. (26) 625, contsinlng exprss-
slors to the contrary, and wblch rul’ing wae folloved In
Doughty vs. CeFee, 152 S.V. (26) at page 410. Our ansver
to your first -quest:cn is, therefore, in tineaffimstlvs.

By the provisions of Article 1150 and 1149, V .A.
C.S., tho rlgbt of the county commlssioriers to condemu rail-
:oad right -of-vays is limited to the condemnation of right-
or’-vays which have less than four railroad tracks. The prob-
13~1s vhLch msy confront the comlsalonere~ court, should it
elect to enter ,proceedinSa h ~ccorrlance vlth said Article3
1150 and 1149, vould not ~~13.9, If it elected to Droceed
under the other ~oneral statute or syecinl law hers- set
cut. Should Dallas County elect to institute condemnation -~
oroceedlws uuder its special road law, for instance, then
tFl3 fact that the four railroad tracks will have to be
cpossod vi11 not interfere v?th oi-prevsnt such- a conaeana-
tion for the reason that under 329 special law any property
deemed xeceasary by the cocm:ns:oners r;ay be condemed for
public rocd purooses. in the case of iii11 County vs. D-ryant
,zad Zd’r’nx~, 11% Texas, at page 365, the Zqmme COWL hsld
chat a s;?cc:Rl road lov supersedes the general road laws
vhere they oonflict with said specl31 lsv, and the corn--ts
ar3 requir3d to take notLc3 of the special law. see al30
Sansss C. ts G.R.R. Co. vs. Grayson County, ,(Clv. A;p.) 5
s.W (2d) 542. 2-m ansver to your second qu3stlon is, thers-
fore, in the negative.

Vith ~e;%?d to your third q‘a38tiO?1, ve think the
;roper ansver thereto depends upon the Dover, If any, in the
county comm:ssFonera to restrict ih3 use Of any DUblie r03O
“or pedestrian pu-yeses only. The ccmnissionersi court is a
1
creature of the State Constitution, and Its powers. are 14aited
2nd controlled by ths Constitution and the laws as gassed by
zhe Leg)Lslature. Article 5, Section 16, Constltut:on of Tex-
as; Baldvi~ va - Countv 68 S.U. a%; Comsiesiouersl
C3urt v3. i3112~&L (54) 533.
Honorable H. P8t Edvards, Page 4
,,

Articles 2351 through 2372h, V.A.C.3 , as arnenaod,
set out the various pavers and duties of the commlssionsrs~
court end ar9 too lengthy to set out ln this opinion. Hov -
ever, It should be pointed out th8t none of the above men-
t:oned ertioles direotlg or lndlreotly give the comalasioners’
co=-t the paver to restrict the use of any public road to
psdestrlan traffic. Within oertaln constitutional lisita-
tions, the Legislature has exolusive control over public
roads and hlghvags in this State. The right to establish
and build hlghvaps r9sts primarily with the Legislature,
such povsr may be dslegated to some other agency as it may
determine. State vs. Hale, 146 S-U. (26) 731. It is now
vsll sett.led that pub110 roads belong to the State and that
the State has full control and authority over the’ same. Tl%V-
is county vs. Trogden, 88 Tex. 302, 31 9.w. 358,. It is also
s vell established rule that the commlssfcners~ court may ex-
ercise only those povers speoifically design8ted by the Ccn-
.etit.ution or the statute. The fact that the Legislnture hsa
exclusive control over public roads and hlghvays In the State
and has not seen fit to grant the said oounty.authorlties the
paver to limit or control the use of Its public county roads
ccmpels us to the conclusion that the county oommissloners’
ccurt does not have the paver or authority to linlt the use
parmanently of any of its publio county roads or portiona
thereof to pedestri8.n use only. Our msver to your third
qusstlon is, therefore, ln the negative.

with rega;-d to your fourth submitted question, the
railroad company being owner of the right-of-vay in question
could oertalnly grant a pub110 easement dressing over same
to be used for pedestrl8.n purposes only. Furthermore, Article
1151, V.A.C.S., places a duty on the railroad to keep th8t
portion of its road bed and right-of-vay over or across vhich
any public street of any Incorporated village or tovn may run
Ln proper condition for the use of the traveling public. But
vhether or not the county Road and Bridge Fund may bo used to
consttict a paSS8ge ~87 to be used for pedestrian purposes on-
ly depends, ve think, on vhether the so-called passage vay so
restricted vould come vithln the deflnltiou of 8 public road.
The cost of oonstruotlon of csunty public roads and bridges
Is authorized and cxpendsble out of the county Road & Bridge
Zonorable II. Pat IZdvards, Page
f

Fund. Will this proposed easement restrloted to psaestrlsn
use only, be It acquired by oondemnatlon or dedication, con-
stitute in fact a part or portion of 8 public road?

Prom Bradford vs. Moseley, 223 S.W. 171, 173, de-
cided by the Commlsaion of Appeals of Texas, Seotlon B, ve
quote *

“What is a publio ro8d Is in a measure de-
pendent on the fact of each particular case, but
the charaoter of a road does not depend on its
length, nor upon the plaoe to vhich it 198ds nor
1s its character determined by the number of peo-
ple vho aotually travel upon it. Decker vs. iron-
ard (Civ. App.) 25 S.W. 728; Elliot on RO~XIS
Paragraph l-7. A road may be established which
is a cul-de-aao Id. A road open to the public
is a pub110 road, though one person msy be moat
benefited by it. Galveston, etc. vs. Baudat, 18
Tex. Clv. App. 595. It is a hi&way If there is
a general right to use It for travel, and lf’it
1s cpen to the use of all peopls. Elliot on
Roads Paragraph l-3; Sumner, etc., vs. Uteruzbzr,,
etc., 141 Term, 493, 213 S.W. 412.”

We cite also :liseouri Pac. R.R. vs. Lee, 7 S.W. 857, 70 TOX.,
at page 500 for a definition of 3hil8r nature,

In Words 8 Phrases, Permanent Etitlon, volume 35,
page 323, ve find the s0110w1ng:

“The test es to whether or not a road 1s
a public road is not simply how many people
actually use it, but hov many may have a free
end. unrestricted right in common to use it.
If it is free and common to all citizens, thea,
no matter whether It is or 1s not of great
length, or vhether It leads to or from a vil-
lnge, city, or hamlet, or vhethar it is much
or little used, it Is a ‘pub110 road.’ Henln-
ger vs. Perry, 47 S.E. 1013, 1014, 102 Va, 896,
quoting Elliott Roads & Streets, paragraphs 11,
192.”

..
 Honorable ii. Pat Edwards, Page
% i:

And on psge 322 of the same vollJme we find the f0110v3-2-2
definition:

"A lpubllo road' 1s a vay open to all
the people vlthout distinction for paasage
and repassage at their pleasure, being a
public thoroughfare. Clv. Code Article 705.
Gsllovay vs. W att Metal & Boiler Works,
181 so. 187, 189 ~a. 837.”

In Sumner County ~8. Interurban Transportation
company, 141 Term. 493, 213 3.W. 412, as set out In 5 A.L.R.
765, at page 767, wherein it was held that a Tennessee Coun-
ty court was yitbout authority to restrict the size and
veight of vehicles which shall be used on public county roads,
va find the folloolng definitlonz

“Roads belong to the public, and the coun-
ty court holds them in trust for the public and
while It 1s proprietor for the premises of Its .-
trust, it is not proprietor in the sense that -
it is tha owner of the road against the public,
or anr number thereof. A public road is a vag
open to all the people,.vithout distinction,
for passaga and repassage at their pleasure.
Definition In other terms have been given, but
they nean substantlall~ the same as the one
just stated. The authorities make it clear that
any road which is not for the us3 of the people
Is not a public road; the fact that it Is for
the benefit of the public destroy the thought
that there cm be a private mershlp of the
road. (Cases cited) This be5.q ths established
nature of the public road, the county court
vould *have no paver to exclude any menber of
the public from Its reasonable use witinout leg-
islative authority.
n . . . .

“The Legislature, as the constitutional
representative of the public, &q,?sthe power to
levy o?ly reesonable condition upon mqbers of

I ..

.
Honorable H. Pat Edvards, Pager9

the public for th3l.r use of the public roads3
but the county court, without express author-
ltg,Jma not such power. It cannot take such
action as proprietor, and as a county court it
has .no power to legislate. The manner of its
dlachargo of its trust cmea from the Leglals-
ture.

“It Is well settled thst every member of
the publlo has the right to use the public
road in a reasonable msnner for the pranotlon
of his health and happlskaa. Such USB, hov-
ever, 1s restricted to a us3 with due care and
in a reasonable manner.3

As we interpret the authorities above quoted on
tha definition of a public road, it is our opinion that
tho desired restricted easement proposed to be acquired by
Dallas County for pedestrian use only would not constitute
in itself 8 public road or 8 part or portion of a Dallas
County public road. ~The county Eoad and Bridge Pond balng
expsndabie only for county public roads and bridges, it
vould follow that this fund may not legally be used for
the construatlon of any publla improvements other than pub-
lic roads and bridges. PurthennopB, ln the event the con-
struction of the desired passage way would ln fact auount
to the construction of a permanent improvement, the county
Caners1 Fund could not legally be expended therefor, but
rather the procedure lnclaent to the use of the county Per-
zsnent Improvement Fund would have to be resorted to for
the payment of the coat of said permanent construction.
The absence of faota concerning the type of structure oon-
tanplated prevent further .dlacusalon of this matter.

With reference to your fourth question, we think
it should aleo be pointed out that whether or not a rall-
road company nay voluntarily grant a public easement over
Lts right-of-way which vould involve the construction of
u over-pass or an under-pass , over or under Its rlght-of-
vay, depends on whether the railroad company owns its rlght-
of-vay in fee simple absolute. This department has held
ln its opinion 210.~O-1110 that although the county or state
.,.I..

.

iIonorab1.eR. Pat Edwards, Page/O

my have a dominant easement in the road right-of-vay,
the title to the land and all the profits therefrom, not
inconsistent vlth and subject to the easement, remain b
the qvner of the soil.

Trusting that the foregoing fully answers your
ue are

Yours very truly

ATTORLI GEABRAL OF 'nims

w&TzGc?a~~
chaster lx; Olllson
AssiStant