October 26, 1962 

Honorable Samuel W. Freas 

Criminal District Attorney 

Polk County Courthouse 

Livingston, Texas 

Opinion No. ~~-1460 

Re: Whether a county is liable to 

a pipeline company for expenses 

incurred in encasing and venting that portion of its pipeline which lies in a pre-exist- 

,ing easement under property acquired for the location of a 

new road, when neither the 

county nor the State Highway 

Department have required that 

the pipe be encased and vented. 

Dear Mr. Freas: 

This will acknowledge your request for an opinion on the above 

subject. 

As we understand the problem, a pipeline company has for some 

time owned an easement for pipeline purposes under certain property in Polk County. Under the Farm to Market Road program, the 

State Highway Commission designated a new location for Farm Road 

2714, subject to the condition that Polk County furnish or acquire 

right of way clear of obstructions and free of cost to the State. 

This new location will cross the pipeline easement at approximately 

right angles, and the pipeline company is contending that the 

county should pay the expense for encasing and venting the pipe 

for that portion of the line over which the new road will pass, 

although neither the County nor the State Highway Department have 

required that the line be encased and vented. The county has acquired from the owner of the fee the right of way for the construction of the road, but has not attempted to acquire, by purchase or condemnation, any rights from the pipeline company in 

connection with the construction of the road across its pipeline 

easement. 

This office has on several occasions held that a pipeline 

company cannot be required to encase and vent that portion of its 

pipeline which lies within a prior or pre-existing easement under 

property subsequently acquired by the county for roadway purposes, 

without compensating the pipeline company therefor. Opinion No. 

W-1090 (July 12, 1961) and opinions cited therein. In those 
Mr. Samuel W. Freas, Page 2 (~-1460) 

opinions the lowering, encasing or other alterations in the existing pipeline were required by the County or State and the expenses 

were incurred in meeting such State or County specifications. In 

the instant situation neither the State nor County have required 

that the pipeline be encased or vented , and accordingly we are 

presented with a situation different from those dealt with in the 

prior opinions. 

It is well established that an oil pipeline easement is 

"property" within the constitutional provision prohibiting the 

taking or damaging of property for public use without adequate 

compensation, Magnolia Pipeline Co. v.City of Tyler, 348 S.W.2d 

537 (Civ.App. 1961, error refused). Therefore, the only question 

that here needs to be decided is whether the construction of the 

road across the pipeline easement amounts to a "taking or damaging" in the constitutional sense, or is such an interference with 

the company's private property right in the easement as to amount 

to a taking or damaging which would require adequate compensation. 

"Damage" is defined in the Magnolia Pipeline Co. v. City of 

Tvler case, supra, as follows: 

"By damage is meant every loss or diminution of what 

is a man's own, occasioned by the fault of another, 

whether this results directly to the thing owned, or be 

but an interference with the right which the owner has 

to the legal and proper use of his own." 

The general rule regarding situations of this type Is set 

forth in Nichols, The Law of Eminent Domain, (Third Edition), Vol. 

2, Sect. 5.4 fil, page 56, as follows: 

"While in (most) jurisdictions the concurrent use of 

the property of a public service corporation is a taking, when such a corporation owns Only an easement in 

the land which it occupies, the Imposition of another 

easement upon the same land which does not interfere 

with the complete and undisturbed enjoyment of the 

original easement, although it may constitute a taking 

of the property of the owner of the fee, as it Is not 

an invasion, destruction or use of the easement, is not 

a taking of the property of the first corporation in the 

constitutional sense. If there is an interf rent e with 

the o&g&,&J us e . there is a t&j.na on v t o Fhe extent 

of such merference . ' (Emphasis adde:.) 

In the interest of safety and the preservation and development of highways, the Texas Highway Department issued Administrative Order No. 12-56, establishing its policy on pipeline encase- 
or. Samuel W, Freas, Page 3,(k%1460) 

ment at rural highway crossings. The pertinent portion of this 

order reads as follows: 

"U.S. AND STATE HIGWAYS 

All gas and liquid fuel transmission lines shall 

he encased as prescribed in Item '1' for EXPRESS- 

\lAYS, except that only one vent is required where 

length of casing Is not over one hundred and fifty 

(150) feet. Gas distribution lines which do not 

carry a pressure of over 50# p.s.i. and which are 

not over six (6) inches In diameter, may be uncased 

provided the District Engineer approves the depth 

and quality of construction. All other gas distribution lines shall be encased throughout their 

length between outer roadway ditches, toe of slopes, 

or not less than five (5) feet behind outer curbs, 

whichever is greater. 

*** 

"FARM ROADS 

All pipelines carrying gas or liquid fuel shall 

be encased as prescribed in Item '1' for U. S. AND 

STATE HIGHWAYS, with the exception that for existing pipelines of this type the District Engineer 

may approve an adequate reinforced concrete slab 

cover or other eouivalent protection in lieu of 

casing or casino extension.." (Emphasis added.) 

We are advised that the line here involved is a 24" gas pipeline and that when the road construction project was in the early 

stages, the Texas Highway Department Resident Engineer notified 

the pipeline company that the road was to be built and went with 

a representative of the company to the site where the road would 

cross the pipeline. The Resident Engineer showed the pipeline 

company representative that there ,would be an 8 or 9 foot fill 

over the line and advised him that the Highway Department would 

not require casing. The representative of the pipeline company 

advised the Resident Engineer that the company wanted the line 

cased and was going to case it, which the company subsequently 

did. 

It is apparent that the Highway Department concluded that the 

8 or 9 foot fill over the line amounted to "other equivalent protection In lieu of casing or casing extension' as provided in the 

above quoted administrative order, but the pipeline company considered that safety factors and its own operating policy require 
Mr. Samuel W. Freas, Page 4 (~~-1460) 

the casing and venting of the line at this point. In this connection, the operation of a gas transmission line, carrying a highly 

combustible material, is considered to be dangerous, Lane v. 

Communitv Naw1 Gas Co., 133 Tex. 128, 123 S.W.2d 6-g), 

and it has been held that a gas transmission company has the obligation to exercise ordinary care for the protection of excavation 

or road construction employees involved in constructing a highway 

over the gas line, Pioneer Natural Gas Company v. K & M Paving 

Comoanv. 359 S.W.2d 533, (Civ.App. 1962). 

From what has been said, it appears that this office is being 

asked to decide a fact question, which is not a function of this 

department. It seems clear that the company would not have gone 

to the expense of encasing and venting its pipe at this point except for the construction of the road across the easement. Nevertheless, we cannot say from the facts presented that construction 

of the new road at this point actually hinders or interferes with 

the operation of the pipeline, or prevents the continuing use by 

the company of its pipeline easement at the present time substantially as well as in the past. Nor can we say that encasing this 

line is either a necessary or an unnecessary precaution, considering the 8 or 9 foot fill covering the line at the road crossing 

and also considering the duty owed by a gas transmission company 

to the public traveling over this road and to maintenance or construction crews working in the right of way in the vicinity of 

the crossing. 

In a similar case, Sinclair Pipe Line Co. v. Archer County. 

Texas, 147 F. Supp. 650 lN.D.Tex. 1957), 245 F.2d 79 (5th, 1957), 

cert. den. 355 U.S. 862, it was held that the counts was not 

liable for expenses incurred by a pipeline company in voluntarily 

readjusting and altering its lines because of highway construction, the court pointing out in 147 F. Supp. at page 654 as 

follows: 

"The fee owners of the land, subject to plaintiff's 

pipeline right-of-way, were legally competent to grant 

a later right-of-way for a public highway, either overlapping or overlying the plaintiff's pipeline right-ofway, if such additional use would not unreasonably hinder 

the riohts of olaintiff as owner of its right-of-wax. 

Apparently, no contention is made that the construction 

and use of the highway improvements, at places where the 

highway right-of-way and the pipeline right-of-way are 

in-juxtaposition, has been found inconsistent with the 

continuing use of the pipeline right-of-way substantially 

as well as in the past." (Emphasis added.) 
- , 

Mr. Samuel W. Freas, Page 5 (Ed-1460) 

We accordingly are of the opinion that if construction of the 

road does not interfere with the pipeline company's use of its 

pre-existing easement and that if encasing and venting of the 

pipeline Is not necessary from a safety factor, then the county is 

not liable for the expense incurred by the pipellne company on its 

own volition; otherwise, the pipeline company's pre-existing property right has been damaged to the extent of the expense incurred 

and the county is liable therefor, pursuant to its agreement to 

furnish the right of way clear of obstructions and free of cost to 

the State. 

SUMMARY 

A county is not liable to a pipeline company for expenses incurred in encasing and venting that portion of its pipeline which 

lies in a pre-existing easement under property acquired for the 

location of a new road, when neither the county nor the State 

Highway Department have required that the pipe be encased and 

vented, unless the construction of the road in fact interferes 

with the pipeline company's use of its pre-existing easement or 

encasing and venting the pipe is necessary for safety purposes. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Assistant 

MN:da 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Scranton Jones 

Malcolm Quick 

L. P. Lollar 

W. 0. Shultz 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore