I
OFFICE OF THE ATT’ORNEY GENERAL OF TEXAS
AUSTIN
lion, Julian Montgomery
State Highway Engineer
Austin, Texan
Dear Mr. Montgomery:
state highway?
, Texas Highway
eta and develop
questiona you stated:
built, and maintained by the
it, hee been our experience that
ose days rarely ever obtained
to the r Qht of way ior such
And you further stated:
WOW, a8 highway construction has progressed
through the years slnoe 1917, the Highway Commis-
slon has seen fit to rebuild Borneof the highways
Hon. Julian Montgomery, rage I!
which formerly were oounty roads, on new looa-
tlons, and find6 Itself la paseeslon 0r ralu-
able 011 lands, which no lower are needed for
hl&way rl6ht of way pur sea. Xany of the
tract6 are 8~~~11laolate r areas whloh oould not
be utllleed by counties EII e part of the county
rood Syetemr~
Vi@ take it from the above quoted portion of your letter
that nolie Of the troota in question were scoured by an outright
deod in fee simple from the fee omer to the county or state and
cnswer your questions on that aerumptlon. Therefore the most
that the state oould own under the ciromstanaos would be an
~~~ene~~n”,dhi$$we~urpoSOS. %ium,, when the road 18 closed
t to use aud oocupy the land would rovort
to the owner free and clear of the sasemsnt end the state would
have no rightto retain 6aae for other purpoaee, us the state
ht to UIe such land eroept for highway purposes.
nover
The feehedslrap
“p e‘Yt tle burdened with the easement remained in the
owner thoroor ,frt the tlmo the essement was oreutod, his heirs
and nssl~ns. Ahis Is tme whether the easement wea aoqulred by
dedication from the owner ior roadway purposea, aOqulre6 by pur-
chase of o rlcht of way for roadway purposes, coodomed under
the law of oninent domln for roadway purposes, or established
by prasorlptlon.
irt 10lo 3Z70, gevlsod Civil Statutes of 1926, under
Title 62, “mlnent 5mml.n”, provides8s follaws:
mzxoept wbere otborwlso expressly provided
by law, the rlcht asoured or to be 8ecurod to
any oorporatlon or other pimtirr in thl~ Gtete,
ln the mannerprovided by this law, shall not be
so construed as to include the fee simple esttite
In lends either pub110 or private, nor ahall the
SW be ioet by the forfoituro or orplratlon or
the uharter, but ohall rmln subjeot to an 0x1
teuslon 0f the charter of the grant of a new
charter without a new c0nd0anat10n~"
In the oese of Celvort of al., vs. liarrle County, 46
8, w . (2d) 375, decided by the Court or Clvll 1ip 0~1s at Galves-
tons wherein the defendants In a oondennntlon s-upt by the county
meI& t,o condmn 0ertal.n of his land for road ptiposm Oon-
tended ‘that ha wao entitled to the value of the minerale under
the lad t&en, the court In overrulinc his ContentiOn used t&Q
Eon. Julian Montmmery, rage 3
“The lttlod rule is that in ooaber~~tlon
prooeedl~r only aa easement is ao@red and that
suoh saroment is all that the law requires to be
paidior.”
Ve find in T&as JUdB&WUdenoo the followlne l~us.go~
Wbder the law of eminent doaeln a highway
easement only ls ao uired b condemaatlon~ the
foe remains re8tea & htidose TO rty was oon-
damed, idso, the pub110 r lfht P8 $Ut 0ll OeBO-
mont when the roadway is ded oated by tho owner
or aoqulrod b&pT:;h";v establlBhed by pre-
soriptlon.~
w~waysm. 2100 al;0 60&E
#L& l~g l
i2dl 457
al. YI. G
B1880ur1, 7
undOI-.
In answer to your rlrst question, it is the opinion
of this dopartmnt that the state only has an oasanont for road
right of way purposes.
For the reasons expressed in our answer to your first
c,uestIon your seooad on4 third quostlon8em answered in the
negatlrer
Ii ws are wron& in the 688UnptiOn that non0 ot the
tracts in question wsre deeded in fee 8lsi1Ao to the aountlss or
to ths state then p10ase furnish us tith ooplos o? such deeds
as you haye )or our construction and further Opinion.
Yery truly yours
w D. D. Xmbon
Assistant
AFGe7z ’
DDL!rjm