Untitled Texas Attorney General Opinion

T%E+R'PTORNE%!GE~RAL QFTEXAS PRICE-DANIEL ATTORNEY GENERAL January ‘29, 1948 Hdn. Fred C. Meridlth opinion ‘iio. v-489 county Attorney Kaufnmn County Re: AuthoHty of the Commls- Kaufman, Texas sloners’ Court to compel an Electric Coopemtive to remove Its poles from a proposed right of way. * ~~..I Dear Mr. Deridlth: Your reoent f!quest _for __ an opinion of this De- palrtmnt lb substantlallJ as f0110W~I ‘We have a problem in Precinct No. 4, Kaufman County, that Is serious, the final outcome of whioh ~111 be precedent for the other precinote in thi’s county. It appears to be one of interprets,tion of a. franchise granted by the Commissioners1 Court to the REA local, to wit, Kaufman County Electric Cooperative, Inc. “The State Highway Department has de- signated certain farm to market roads and highways in this County for Improvement and widening, and.by agreement the County is to furnish the right of way for such widening purposes. The right of way has been secured on the particular road in- valved, same having been doneted by the landowners along the route to the County. !Phs Cooperative has Its poles set along the existing right of way of the present road, but such poles a.re on the new right of way ground that has b.een acquired by the County for the widening of said road. “Under the franchise granted to the Cooperative to use the roads of thla Coun- ty for setting poles for its transmissiou lines, the County reserved the right to require the Cooperative to move Its poles at its own expense should it ever become - Ron. Fred C. Meridith, page 2 (v-489) necessary to move slid poles in order to widen the roads, At least, this seemed to be the intention expressed in the re- servation in the franchise, s~ccording to my interpretation. “The Codssioner has notified the Coopepatlvo, In rocopdance with provisions of the franchitie, to’move Its po$ee f~ch the new right of ~way. The Coo@erabive .bas refused to do so, cls.iaing that’ the poles are on private right of way easementa which the Cooperative obtained from the landowners, and not on public right of way, evensthough the line runs along the publioroad. The pertinent portionsof the franchise refer- red to In your request reads as follows! “On this the 10th day of January, A.DD. 1938, cs,me on to be hea,rd before the Com- mIssionersi Court of Kaufman County, Texas, the’appllcation of Kaufman County Electric Cooperative Inc. for the right to use the public roads, highwaysand other public places of this ,county for the .purpose of constructing, erecting, maintaining and operating electric transmission and distri- bution lines in It’s business of dlstrlbu- ting electric light snd power, and It ap- peering to the court that such use will not interfere, obstruct or in anywise im- paF~ the use of said public ros.ds, high- ways or other public pla,ces: “IT IS THRRJPORE ORDERED,ADJUDWD ANDDECREED by the Commissioners1 Court of this County that Kaufman County Elec- trio Cooperative Inc. its successors and asstgna, fs hereby authorized, empowered and granted the perpetual right, privilege, franchise and easement to construct, erect, maintain and operate electric transmission and distribution lines and all necessary OP usue,l attachments and appurtenances elong, across, over, unde?? and on the streets, lanes, highweys, public roads, bridges and other public places In this county 0 Pen. Fred C. Meridith, ptige 3 (v-489) “In grantiug to the raid Kaufman Coun- ty Electric Cooperative Ino. a franchise to use the roads of Kaufman County for setting poles for its transnlisslon lines, the Coun- ty reserves the right to permit the Cqmia- sioner of each precinct to direct the place where said poles shall be set in his respec- such manner 8,s to be as little In the way of said road as practical and shall be done at no expense to the County.” (mphasls added throughout this opinion) Article 1435, V. C. S., ia aa follows: “Gas, electric current and power ,cor- porations shall have power to generate, Pleke and manufacture, transport and sell gae.~ electric current and power to lndi- vldnals, the public and’muniolpalities for light, heat, power end other purposes, and to make reasonable charge& therefor; to oonstruct, maintain and operate power plants and substations end such machinery, appara- tus, pipes, poles, wires, devioes and ar- rangements as may be necessary to overate such lines at and between different points in this State; to ovn, hold and use saoh lands, right of way, easements, franchises, buildings and structures as may be neces- sary for the purpose of such corporation.” Article 1436, V. C, S., provides2 “Such corporation shall have the right and power to~enter upon, condemn and appro- prlate the lande, rfght of way, easements and prop&Q of any person or corparation, and shall have the right to ,erect its lines over and across any public road, railroad, railroad right of way, interurban railroad, street railroad, oanal or stream in this State, any street or alley of any incorpore- ted oitg or town in this State with the eon- sent and under the direction of the govern- Hon. Fred C. Meridlth, page 4 (V-489) ing body of such city OP town. Such lines shell be constructed unon suitable Doles in the most approved m&ner and maintsined st P height a~bove the ground of et least twenty-two feet; or pipes may be placed under the ground, as the exigencies of the case may require .‘I Generally speaking, a Commissioners! Court may exercise only those powers zpeclflcally designated by the Constitution and the stfttutes, or those powers nec- essarily implied. You have stated that the original easement was gra.nted by private landowners s.nd was not upon the es- tablished Aght of way of said county, and that in wid- ening said roed st the present time it becomes necezzery to take in this particular territory upon which said poles are located as additional right of way. Such be- ing the caze it becomes apparent that the county would be taking private property for public use and therefore the question of who bears the expense of removing said poles would turn upon the validity of the franchise granted by the County of Kaufman to the Ke~ufmanCounty Electric Cooperative. In Opinion No. 0-6791-A, dated October 19, 1945, this Department stated: “In oup Opinions Nos. O-1805, O-2442 and O-5726, this departaent held that by virtue of the above Article No. 2351, that the commissioners’ court has no euthority to grant franchises to public utility com- panies by Pea,aon of the fact that Article 1436, suppa, by direct legislative grant, grants to gas, electric curpent and power companies the Pight to erect its lines over e.nd across any public roads outside of Incorporated cities and towns.” In the case of State ex rel City of Jasper v. Gulf States Utilities Co., 189 9. W. (26) 693, the Su- preme Court of Texas stated: “The statutes of Texas have clear- ly defined the powers, prescribed the duties, and imposed the liabilities of the commissioners’ court, the medium Hon. Fred C. Meridith, page 5 (v-489) tapoui& vhlch the dirfkwsntcountiesret, and from thorn statutes mast oomo a11,the authority reeted ln the oountlea. . . .i ?%!3,“2r:~: tr:;:YxLEt: tlonal provision, ve find that no authority is’ glveu the, aommlrsionerr~ oorurt to enter Into such contracta as.the one sued on in this case . . . . *Ror does 8 cofmlsslonersS court hare i.mplQd power to gpant such franchise . . . “Since the coniiilssion~rs~‘court of Jasper County vas without paver to grant the rlghta claimed by respondent the pur- ported f’ranchlse and extensions thereoS are of no ioroe and effect aa against the oltr’a procedure under its ordinance. . .* In Opinion Ro. O-7026, dated.June 22, 1946, a oopy of which Is enclosed, this Department stated2 “First, vo think there 18 no doubt but that the county ray lavfully acquire &he ueedod strip for the purposes of the Fapm- to-Market road. (Cklcsgo R. I. & 0, Ry. Co. V, Twrant Cou8ty Water Control Dietrlet, ,738. W, (2) 55; 16 Tex. Jtw. p. 595 Sec. 28, and authorities there cited.) It may acwlre that atrip in either of two iraysr - - "(a) By condemnation, to vhlch proceed- ing the RRA is a necessary party; arc, "b) By agreewnt oi parties upon any conslderatlon valuable and mtlr- faotory. “In aaae o? oondwuation, oi~fmweo, Sor constltutlonal ,reaa&i:-.the property of the BRA may not be taken vlthbut adequate oollpeu- satlon to be deterrined under the ord$wr& rules of’.oondematlon prooeedinae. natwe of thlngs the damagea tmovervd bJ the REA vould Include the element of r68oY- 1% their pole8 and etjuipment thereiro8, md,re-indtalling it elsevhere. So, also, -- ._, _ Hon. Fred C. Merldith, page 6 (V-489) in the event of purchase, the same ele- ment would enter into the agreement. In either event, the county will have notion- ally paid for such removal 8,s a part of the damegtfs upon condmenatlon OP purchase agree- ment . By virtue of tha foregoing it is the opinion of this Department that If it baoomae aEcersary to re- move the poles of the Kaufman County El.ectrlc Coopera- tive Inc. to widen’ farm-to-market roads, the County would be liable Por such expense. Sinae the County had no authority to grant the franchise in question, the provisiona therein are unenforaeable. The delay in forwarding this o inion was oc- casioned by the faot that this Departmen e was awaiti the decision of the 8upreme Court of Texas on a seoo 3 motion for rehearing in the oaee of Herpstead v. Gulf States Utilities Company, whloh vas overruletl on Decea- ber 31, 1947, and as yet unreported, and which could have effected the question presented in your factual situation. The CommLemloner8~ Court of Kaufman County has no authority to compel the Keufman County Eleatrlc Cooperative Inc. to p8y the expense of remoVitIg its poles fron a private easement on adjoining lands to enable the County to widen a farn-to- msrket road. Youra very truly, ATTORNEY OEll’BRALOF TEXAS BY Burnell Waldrep Assietant