October 26, 1962

Honorable SamuelW. Freas CriminalDistrict Attorney Polk County Courthouse Livingston,Texas OpinionNo. ~~-1460
Re: Whether a county is liable to a pipeline company for expenses incurred in encasing and venting thatportion of its pipeline which lies in a pre-exist- ,ingeasementunder property acquired for the location of a new road, when neither the county nor the State Highway Departmenthave required that thepipe be encased and vented.
Dear Mr. Freas: This will acknowledgeyour request for an opinion on the above subject.
As we understand the problem, a pipeline companyhas for some time owned an easement forpipelinepurposesunder certainproperty in Polk County. Under the Farm toMarket Road program, the State Highway Commissiondesignated a new location for Farm Road 2714, subject to the condition that Polk County furnish or acquire right of way clear of obstructionsand free of cost to the State. This new locationwill cross the pipeline easement at approximately right angles, and the pipeline company is contending that the county shouldpay the expense for encasing and venting the pipe for thatportion of the line over which the new road will pass, although neither the County nor the State Highway Departmenthave required that the line be encased and vented. The county has acquired from the owner of the fee the right of way for the constructionof the road, but has not attempted to acquire, by purchase or condemnation,any rights from the pipeline company in connectionwith the constructionof the road across its pipeline easement. This office has on several occasionsheld that a pipeline company cannot be required to encase and vent that portion of its pipelinewhich lies within a prior or pre-existingeasementunder property subsequentlyacquiredby the county for roadway purposes, without compensating the pipeline company therefor. Opinion No. W-1090 (July 12, 1961) and opinions cited therein. In thoseMr. SamuelW. Freas, Page 2 (~-1460)

opinions the lowering, encasing or other alterations in the existingpipeline were requiredby the County or State and the expenses were incurred in meeting such State or County specifications. In the instant situationneither the State nor County have required that the pipelinebe encased or vented, and accordinglywe are presentedwith a situationdifferent from thosedealt with in the prior opinions.
It is well established that an oil pipeline easement is "property"within the constitutionalprovisionprohibiting the taking or damaging of property forpublic 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 constructionof the road across the pipeline easement amounts to a "takingor damaging" in the constitutional sense, or is such an interferencewith the company'sprivate 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:

"Bydamage is meant every loss or diminution of what is a man's own, occasionedby the fault of another, whether this results directly to the thing owned, or be but an interferencewith the right which the owner has to the legal and proper use of his own." The general rule regarding situationsof this type Is set forth in Nichols,The Law of Eminent Domain, (ThirdEdition),Vol. 2, Sect. 5.4 fil, page 56, as follows:

"While in (most) jurisdictionsthe concurrentuse of theproperty 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 easementupon the same land which does not interfere with the complete and undisturbed enjoyment of the original easement, although itmay constitutea 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 rente with t the o&g&,&J us . there is a t&j.na on v

e o Fhe extent of suchmerference

.' (Emphasisadde:.)
In the interest of safetyand thepreservation 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 pertinentportion of this order reads as follows:
"U.S.AND STATEHIGWAYS

All gas and liquid fuel transmission lines shall he encased as prescribed in Item '1'for EXPRESS- \lAYS, except that only one vent is requiredwhere 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 shallbe encased throughout their length between outer roadway ditches, toe of slopes, or not less than five (5) feet behind outer curbs, whichever is greater. ***
"FARMROADS

All pipelines carrying gas or liquid fuel shall be encased as prescribed in Item '1'forU. 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 eouivalentprotection in lieu of casing or casino extension.." (Emphasisadded.)
We are advised that the line here involved is a 24" gas pipeline and thatwhen the road constructionprojectwas in the early stages, the Texas Highway DepartmentResident Engineer notified thepipeline company that the road was to be built and went with a representativeof the company to the sitewhere the road would cross thepipeline. The Resident Engineer showed thepipeline company representativethat there ,would be an 8 or 9 foot fill over the line and advisedhim that the Highway Departmentwould not require casing. The representativeof the pipeline company advised the Resident Engineer that the companywanted 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 "otherequivalentprotection In lieu of casing or casing extension' as provided in the above quoted administrativeorder, but the pipeline company considered that safety factors and its own operatingpolicy requireMr. Samuel W. Freas, Page 4 (~~-1460)

the casing and venting of the line at thispoint. In this connection, the operation of a gas transmissionline, carrying a highly combustiblematerial, 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 companyhas the obligation to exercise ordinary care for the protection of excavation or road construction employees involved in constructinga highway over the gas line, PioneerNatural 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 todecide 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 thispoint except for the constructionof the road across the easement. Nevertheless,we cannot say from the factspresented that construction of the new road at thispoint actuallyhinders or interfereswith the operation of thepipeline, or prevents the continuinguse by the company of its pipeline easement at thepresent time substantially as well as in thepast. Nor can we say that encasing this line is either a necessary or an unnecessaryprecaution, considering the 8 or 9 foot fill covering the line at the road crossing and also considering the duty owed by a gas transmissioncompany 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 incurredby 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 theplaintiff'spipeline right-ofway, if such additionaluse would not unreasonablyhinder 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 thepipeline right-of-wayare in-juxtaposition,has been found inconsistentwith the continuinguse of the pipeline right-of-way substantially as well as in thepast." (Emphasisadded.)- ,

Mr. SamuelW. Freas, Page 5 (Ed-1460)

We accordingly are of the opinion that if constructionof the road does not interferewith the pipeline company'suse 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 incurredby thepipellne company on its own volition; otherwise, thepipeline company'spre-existingproperty 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 obstructionsand free of cost to the State.
SUMMARY
A county is not liable to a pipeline company for expenses incurred in encasing and venting thatportion of its pipelinewhich lies in a pre-existing easementunder 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 thepipeline company'suse of its pre-existing easement or encasing and venting the pipe is necessary for safetypurposes.
Yours very truly,
WILL WILSON Attorney General of Texas

Assistant
MN:da
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
ScrantonJones Malcolm Quick L. P. Lollar W. 0. Shultz
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore