OIRNEPGE~~I.
OFTEXAS
Hon. Fred Harris opinion No. O-2405
$ounty Audit,or Ret Highways - Pipe Lines
Polk county
Livingston, Texas
Dear Sir;
Your request for opinion has been received and care-
fully considered by this department. We quote from your letter
of request as follows:
“Attached you will find ‘a copy of a franchise,
that Polk County made with or to SKELLPIPE LINE
CORPORAl!ION,in 1931, which is self explanatory. With
this franchise and the laws of Texas, please advise me
on the following:
“Under the above authority SHELLPIPE LINE COD-
POEUTIONlaid pipe lines and erected telephone lines
in Polk County, under above, etc. the roads of Polk
County, then in 1938 balk County was called upon by
the State highway Dept. to secure right-of-way for
various highway constructions most of which was newly
located, along the old highways, then it followed
that the SEELLPIPE LINB CORPORATION was called upon
to lower their pipe in several places and to case
said pipe at these new locations, some of these new
locations was only a few yards of the old location,
but the above mentioned work was necessary.
‘“About December 1938, SHELLPIPE LINE CORPOBA-
TION presented Polk County with an account, represent-
ing that this was cost on said job, Polk County Com-
missioners Court passed an order that same be paid,
but I refused to sign said warrant, and to date they
have not received their money, however they now demand
that this account be paid.
“1 refused to sign this warrant, because I was of
the opinion that their franchise called for them to do
this kind of work at their own expense, for the privi-
lege of crossing, etc. our roads at their will and
pleasure same being the only consideration that Polk
County received for said franchise.
. .
Hon. Fred Norris, page 2 (O-2405)
“Now the present Commissioners Court, at a recent
meeting rescinded the order that their predecessors
passed, ordering that this account be paid. (The pres-
ent court says not to pay this account.)
“Please advise as to your opinion, as to whether
Polk County owes SH&L PIPE LINE CORPORATION anything
or not .‘I
The order of the commissiorrrs~ court, attached to your
letter, reads as follows:
“ORDW
“Now, on this the 13th day of July, 1931, The Board
of County Commissioners of Polk County, Texas, having
convened in regular call, pursuant to law, and it appears
that the following members of said Board were present,
to-wit:
W. J. Tullos,
County Judge, Polk County
John McLeod,
Commissioner, Pre. #2
Carl Bergman,
Commissioner, Pre. 813
Fred Handley,
Commissioner, Fre. #4
“And it appearing that said meeting has been in all things
lawfully convened end there coming on for hearing the ap-
plication of the SHELLPIPE LINE CORPORATION, praying for
authority to use certain highways and public places in Polk
County for the purpose of laying pipe lines in Polk County
and erecting a line or lines of poles with telephone and
telegraph wires thereon, and said application having been
duly considered, and it appearing that the same ought to be
granted.
wNOW,IT IS ORDWRD, CONSIDERED ANDADJUDGED,that said
SHELLPIPE LINE CORPORATION,its successors and assigns are
granted authority to use the highways and public places of
the County of Polk, State of Texas, and to lay thereon,
through, over, under and across the said highways and pub-
lic places in said County, pipes and pipe lines for the
transportation of oil, petroleum and/or any of its products,
gas, water, refined oil and other substances and/or any
thereof, with the right to construct, reconstruct, replace,
Hon. Fred Norris, page 3 (O-.+5)
renew, maintain, repair, operate change the size of,
and remove said pipes and pipe lines.
“There is also granted the said Shell Pipe Line
Corpor,ation, its successors or assigns, the right to
erect and maintain, through, under and, across said
highways and public places of the County of Polk
State of Texas, a line or line of .poles, with teie-
phone and telegraph..wires thereon and also the right
to lay adjacent to and parallel with the first pipe
line or lines other pipe lines; and the said grantee,
its successors’and assigns, is granted the right of
ingress and egress to and from sald lines or any of
them, for the’purposes of construction, inspection,
repairing, renewing, operating, changing the size of,
or removing the same, ,together with the right of re-
moval of such, in whole or fin part; said grantee, its
successors or assigns to select the route,of such
lines. Erovided. all DiDe-
“Done by the Board of County Commissioners of
Polk County, Texas this 13th day of July, 1931.
“ATTEs!rr
I
glex
Chairman of the Bbard.
UEAL)
Filed July 13th; 1931
ty, Texas.”
&ticle 1497, Vernon’s Texas Annotated Civil Statutes,
reads as follows:
“Such ‘corporation shall ,have the right and power
to enter upon, condemn and appropriate the lands, right
of way, easements and property of any person or corpor-
at ion. Such c~orporation shall have the right to lay its
pipes and pipe lines across and under any public road
or highway or under any railroad, railroad right of way,
street railroad, canal or stream in this State, and to
lay its pipes and .pipe lines across or along and under
any street or alley in any incorporated city or town in
this State with the consent ‘and under the direction of
the governing body of such city or town. go oioe l&azi
1 be lwallel with a&3 on anv ac h&g&&y,
Hon. Fred Norris, page 4 (O-2405)
thereof. exceot with the aooroval and under the w-
tion of’ the c-s court of the county in whic&
der any cemetery, church or college, school house, resi-
dence business, or storehouse, or through or under any
building in this State, except by the consent of the
owner or owners thereof. All such pipes and pipe lines,
when same shall pass through or over the cultivated or
improved lands of another, shall be well buried under
ground at least twenty inches under the surface, and
such surface shall be properly and promptly restored by
such corporation unless otherwise consented to by the
owners of such land. When such pipes and pipe lines
shall be laid over or along any uncultivated or unim-
proved lands of another, and such lands shall thereafter
become cultivated or improved, such pipes or pipe lines
shall be buried by’said corporation as herein provided
for cultivated lands, within a reasonable time after
notice by the owner of such lands or his agent, to said
corporation or any agent thereof.?’ (Underscoring ours)
Article 6022, Vernon’s Texas Annotated Civil Statutes,
reads as followss
“Every person, firm, corporation, limited partner-..
ship, joint stock association, or association of any kind
whatsoever owning, operating or managing any pipe line,
or any part of any pipe line within this State for the
transportation of crude petroleum that is declared by
this title to be a common carrier, shall have the right
~--and-power off eminent domain in the exercise of which he,
it or they may enter upon and condemn the lands, rights
of way, easements and property of any person or corpora-
tion necessary for the construction, maintenance or opera-
tion of his, its or their common carrier pipe line; and
shall have the right to lay his, its or their pipes or
pipe lines under any railroad, railroad right of way,
street railroad canal or stream in this State; and along
and under any street railroad, ,canal or stream’ in this
State; and’.along ,and under any street or alley,& any in-
corporated city or town in this State with the consent
and under the direction of the governlng body: of- such city
or town; and across and under any public road,. provided
that, no pipes or pipe lines shall be laid parallel with
and on any public highway closer than fifteen feet from
the improved section
,
:
Hon. Fred Norris, page 5 (O-2405)
thereof except with the approval and under the direction
of the commissioners court of the county in,which such
publichighway is ,located; and such other rights in the
matter of laying pipes and pipe lines as are conferred by
Article 1497, ~subjec,t to the conditions, limitations and
restrictions therein stated.@
- Article
we 6021, Vernon’s Texas Annotated Civil Statutes,
reads as rollowa5
“The right to run pipe Sines, telegraph and telephone
lines along, across or over any public road or highway
can only be exercised upon condition thatthe traffic
thereon be not interfered with, and that such road or
highway be promptly restored to its former condition of
usefulness, and the restoration thereof to be subject also
to the supervision of the commissioners court or other
proper local authority. In the exercise of the privileges
herein conferred, such pipe lines shall compensate the
county or road district, respectively, for any damage done
to such public road. Nothing herein shall be construed to
grant any pipe line company the right to use any public
street or alley of any incorporated or unincorporated city
or town, except by express permission from the governing
body thereof .I1
Commissioners1 courts are courts of limited jurisdiction,
in that their authority extends only to matters pertaining to the
general welfare of their respective counties and that their powers
are only those expressly or impliedly conferred upon them by law,
that is, by the Constitution and statutes of the State. 11 Texas
Jurisprudence, pages 564-5.
The license granted by the county to the pipe line com-
pany shown above is subordinate to the paramount right of the
county to construct, alter, repair and maintain the roads of the
county. The law. requires that the pipes and pipe lines be so bur-
ied and covered as not to interfere with the use and occupancy
of roads and highways. c&t. 1497) The coverlng and burying of
pipe lines to proper depths so as not to interfere with roads and
highways is a legal duty of the pipe line company; it follows that
the expense of such compliance is an expense chargeable to the
pipe line company. Neither the law nor the license granted would
make the county liable for such expense.
You are therefore respectfully advised that it is the
opinion of this department under the facts stated in your letter,
Hon. Fred Norris, page 6 (O-24O5)
that the commissioners' court of Polk County, Texas, has no
authority to pay the claim described in your letter.
Yours very truly
A!l'TORNmGENERAL
OF TEXAS
By /s/ Wm. J. Fanning
Wm. J. Fanning, Assistant
APPROVED J-m 8, 1940
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED:OPINION COMMITTEE
BY: BWB, CHAIRMAN
WJF:AW:wb