THE ATTOECNEV GENERAL 

OF %kXAM 

Honorable Cecil M. Pruett 

County Attorney 

Hutchinson County 

Borger, Texas 79007 

Opinion No. M-380 

Re: Power of county to require 

utlllty companies to relocates 

poles and lines on public rlghtsof-way under Municipal Airports 

Act. 

Dear Mr. Pruett: 

Your request for opinion presents the following question: 

"Does Hutchinson County have the power to require Southwestern Public Service Company, a corporation engaged in 

the transmission and sale of electrical energy In Texas, 

and Southwestern Eel1 Telephone'Company, a corporation engaged in local and long distance telephone service, to relocate their poles and lines without expense to the County 

in connection with the County's program of expanding Its 

airport facllltles In order that such lines located on a ,~ 

public road and State Highway In the city of Borger and 

Hutchinson County will not constitute a hazard to airplanes taking off and landing upon the expanded runways 

of the airport?" 

In support of your request, you relate the following facts: 

"The air approach to and from one of the expanded runways passed over a traffic circle in the City of Forger 

and a State Highway traversing along such traffic circle, 

" along with other streets in the City of E!orger . . . The 

lines In question were partially In and partially out of 

the City of Borger. A portion of the lines of each company had been obtained by private easement from private 

parties before the roads or highways were established. 

Hutchinson County was the governmental agency which owned,. 

maintained and had charge of the constructipn of the alrport, as well as the facilities involved In the expansion 

program. It alone requested the relocation and removal 

of the lines." 

It also Is made to appear that the poles and lines in question existed 

before the airport expansion and that they apparently did not con- 

-1878- 
Hon. Cecil M. Pruett, Page 2 (M-380) 

stitute an airport hazard prior to the expansion. Despite these 

considerations, however, it is the opinion of this office that Hutchlnson County may require the relocation of the utility poles and lines 

located upon city streets, state highways, and county roads without 

expense to the county subject to the qualification hereinafter set 

out except that the county may not do so In those situations where 

the poles and lines are located on private easements, obtained from 

private parties before the roads or highways were established, and 

which easements have not heretofore been purchased or taken by eminent 

domain by the state or county. 

The power of the county to compel the removal of an “airport hazard” 

is set forth in the Municipal Airports Act, Articles 46d-1,through 

46d-22, Vernon’s Civil Statutes. In Article 46d-1, a “municipality” 

j~s defined as including a “county”. Article 46d-2 provides that: 

“Every municipality is authorized, . . . to . . . regulate, 

protect and police airports and air navigation facilities, 

either within or without the territorial limits of such 

Article 46d-15 provides that: 

“The . *. regulation, protection and policing of airports 

and air navigatlon facilities, including the acquisition 

or elimination of airport hazards, and the exercise of any 

other powers herein granted to municipalities and other 

public agencies, . . . are hereby declared to be public and 

governmental functions, exercised for a public purpose, 

and matters of public necessity; and In the case of any 

county, are declared to be county functions and purposes as 

well as public and governmental; . . . ” (Emphasis added] 

Not only does the above statute render the operation of the airport 

a public and governmental function: it was so held in the case of 

City of Corsicana vs. Wren, 159 Tex. 202, 317 S.W.2d 516 (1958). A 

county Is possessed of police powers and may reasonably exercise the 

same in its proper jurisdiction. 20 C,J.S. 869, Counties, Sec. 92. 

By the reasonable exercise of its police power, it possessed the 

power to require the necessary utility relocations. 

- 1879- 
Hon. Cecil M. pruett, Page 3 (M-380) 

As to the installations located on easements procured from private parties, and which easements have not been subsequently acquired by the State as a part of the public rights-of-way,,the corporations in question are clearly entitled to relocation compensation. 

,323 S.W.2d 471 (Tex.Civ. 

. Highway Commisnctlon exists 

involving installations located In the highway and street rights-Af-way, the same 

being regulated by statute and subject to the reasonable exercise of 

the police power, an inherent sovereign power. cf. Attorney General 

Opinion Nos. WW-1090 (1961) w-961 (1960), and WI-1004 (1961). 

It also should be here observed that a right of easement only is 

involved, and a material distinctlon must be drawn as to the nature of 

the property right involved, between the mere right of an easement for 

utility lines, and a compensable vested property right arising under 

a franchise, which Is a grant and a contractual right. 25.Tex.Jur.2d 

599, Franchises, Sec. I; p. 600, Sec. 2. 

The right of the telephone company to use highway and road rlghtsof-way has been conditioned by Article 1416, Vernon's Civil Statutes, 

reading as follows: 

"Corporations created for the purpose of constructing 

and maintaining magnetic telegraph lines, are authorized. 

tom set their poles, piers, abutments, wires and other 

fixtures along, upon and across any of the public roads, 

streets and waters of this State, in such mariner'''' not ." 

to incommode the public in the use of such roads, streets 

and waters." (Emphasis added) 

The right of the electric utility company to the use of such 

rights-of-way has been conditioned by Article 1436a, Vernon~'s'Civll 

Statutes, reading, in part, as follows: 

"Co 

f;p 

orations . . . engaged in the generation, transmission 

and or the distrtlution of electric energy in Texas . . . 

shall have the right to erect, construct, maintain and 

operate lines over, under, across, upon and along any 

State highway or county road in this State, except within 

the limits of an incorporated city or town; . . . and to 

erect, maintain and operate lines over, across and along 

the streets, alleya and other public property 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 . . . Any 'such corporation shall notify the 

State Highway Commission, or the Commissioners Court having 

jurisdiction, as the case may be, when it proposes to build 

lines along the right-of-way of any State Highway, or county 

road, outside the limits of an incorporated city or town, 

-1880- 
Hon. Cecil M. Pruett, page 4 (M-380) 

whereupon the Highway Commission, or the Commissioners Court, 

may, if It so desires, designate the place along the rightof-way where such lines shall be constructed. The public 

agency having jurisdiction or control of a highway or county 

road, . . . may require any such corporation, at its own expense, 

to relocate its lines on a State highway or county road outside the limits of an incorporated city or town, so as to 

permit the widening of the right-of-way, changing of traffic 

lanes, improvement of the road bed, or improvement of drainage 

ditches located on such right-Of-Way by giving thirty (30) 

days' written notice to such corporation and specifying the 

line or lines to be moved, and indicating the place on the 

new right-of-way where such line or lines may be placed . . . 

and the governing body of such city or town may require any 

such corporation, at its own expense, to re-locate its poles 

and lines so as to permit the widening or straightening of 

streets, by giving to such corporation thirty (30) days' 

notice and specifying the new location for such poles a;d 

lines along the right-of-way of such street or streets. 

(Emphasis added.) 

Obviously, the corporations in question may be compelled to remove 

at their own expense their installations located In public rights-ofway whenever such location is made necessary by highway improvements. 

While sustaining the constitutionality of a statute authorizing compensation involving relocation of interstate highways, the Supreme 

Court of Texas in State of Texas v. City of Austin, 331 S.W.2d 737 

(Tex. Sup. 1960) has clearly recognized that the companies could be 

forced to remove their lines, because of highway improvements, at 

their own expense in the,absence of an "assumption" by the state of -- 

the expense. The Court said: 

I, 

. . . While public utilities may use the same 

fioads and streets-7 for laying their lines, such use 

is subject to reasonable regulation by either the 

state, the county or the city, as the case may be. 

The utility may always be required, in the valid 

exercise of the police power by proper governmental 

authority, to remove or adjust its Installations to 

meet the needs of the public for travel and transportation. 

It 

. * . The Legislature acting for the State has primary 

and plenary power to control and regulate public roads 

and streets. It may delegate that power to counties or 

municipal corporations." 331 S.W.2d 741. 

In reaching the conclusion that in the absence of a stat.ute assuming 

liability for compensation, Texas will adhere to the common law rule, 

the Court further declared: 

-1881- 
. . 

Hon. Cecil M. Pruett, page 5 (M-380) 

"Compensation is not required to be made for damage or 

loss resulting from a valid exercise of the police power. 

See State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 

and authorities there cited. The absence of a cause of 

action does not, however, reduce the loss which individuals are often required to bear or make their injuries 

any less real . ..' 331 S.W.2d 743. 

In addition to the above authority, we believe that the City of San 

388 S.W.2d 231 (Tex.Civ.App. 

1965# error ref., n.r.e. ban Antonio v. Hexar Metropolitan Water Dist., 309 S.W.2d-491(Tex.Civ.App. 1958, error ref.) 

also support the power to require the relocation in order to support 

public surface and air travel on or above highways. 

Thus, even without statutes, such a&our Articles 1436a and 1416,' 

involving relocations for highway purposes, the common law which Texas 

has adopted leave the utility companies in the same position of having 

tom bear the relocation costs. 

(1957), 

Attorney General Opinion No. WW 45 

citing numerous authorities, including Southern Hell Tel. & 

Tel. Co. v. Commonwealth, 266 S.W.2d.308, 310-311 (Ky. 1954), in 

which the Court said: 

"Aside from the express provisions of the grant, we think 

there is a clearly implied condition that appellant may 

be required to remove and relocate its facilities when 

such removal and relocatio; are in the interest of public 

convenience or safety . . . 

Numerous authorities from throughout the country are there cited in 

support of the statement. 

In Texas, Articles 1016, 1146, and 1175, Vernonts~ Civil Statutes, 

grant to the cities the control and the police 'power over the. 

streets within their boundaries. Articles 6674w-1 and 6674w-5, 

VernonIs Civil Statutes, grant to the Highway Commisslon such 

power over State Highways within or outside the limits of any such 

city, and the exercise-of such power qualifies and renders 

inexclusive the dominion of any city with respect to specific 

streets, alleys or other public ways thereby affected. State v. 

City of Austin, supra, at page 741. 

We see no difference in whether the relocating of these facilities 

was occasioned by road improvements or by airport improvements, 

both being governmental functions of the county (as distinguished 

from proprietary) and a valid exercise of the police power of 

such county with no question of paramount rights involved. In 

Attorney Caneral's Opinion NO. O-2978 (1941), this office expressed 

such opinion in regard to electric power poles and lines some 

-1882- 
, , 

hon. Cecil M. Pruett, page 6 (M- 380) 

eight years prior to the original passage of Article 1436a 

(Acts 1949, 51st Leg., p. 427, ch. 228). 

We find no statute similar to Article 6674w-4, applicable 

here, that would require the payment by all counties In this 

state of the expenses Incurred in the relocating of utility 

poles and lines, occasioned by a valid exercise of the police 

power under the Municipal Airports Act. 

It Is the understanding of this office that the Federal 

Aviation Administration has taken the position that unless the 

State law requires the county to pay for these relocating expenses that matching federal funds are not available under 49 

U.S.C. 1112 (a) (1) as "a necessary cost incurred," because it 

is not necessary to pay for that for which you do not have to pay. 

Likewise, the portion of Article 46d-2, hereinbefore 

quoted, authorizing the purchase of such easements or other 

Interests 'as are necessary", could hardly be authorizing, muoh 

less requiring, the expenditure of funds for such relocating 

when, under the existing law of this state, they may be required 

to be removed in the valid exercise of the police power without 

expense to the county. 

In view of the foregoing, we are unable to construe 

Articles 1416 and 1436a in such a way as to form some sort of 

contract, whereby the utility companies derive a vested property 

right In the placing of their poles and lines, so that if they 

later Incommode the public In other ways than highway improvements Incident to surface travel, the county or state is 

absolutely required to compensate such utility companies for 

removal costs. We find no ambiguity in the statutes to require 

a resort to construction. These statutes merely are an expression of the public policy of the state as it existed at the 

time of their adoption. State v. City of Austin, supra, at 

page 741. The enumeration of the purposes, above quoted, In 

Article 1436a would not exclude all other purposes or reasons 

requiring relocation under the expressio unis rule of statutory construction. This rule is only applied where because of 

ambiguity such a canon of construction becomes necessary to 

enable a court to determine the intention of the legislature. 

It Is not applicable where the legislative intention is disclosed by the entire act, or when its application will not aid 

the court In ascertaining'and giving effect to the legislative 

intent, as in the situation presented here. 53 Tex.Jur.2d 

206-208, Statutes,Sec. 142. 

We cannot, by construction of the statutes In question, 

hold that the state legislature intended by implication to 

-1883- 
. . 

Eon. Cecil M. .Pmett, page 7( M-360) 

contract away th8 police power of the stat8 or it8 poll~ical 

subdivisions. Clt of OarLand v. Texas Power and Light Co., 

342 S.W. 2d 81d (Tex. clv. App. 1961, no writ), from 

which we quote, in part: 

19 We recognize that ‘the grant by a municipallty*to a public service company of the right to use 

streets does not divest the municipality of its police 

power over the grantee in relation to its use of such 

12 McQuillin, Municipal Corporations, Fran* 

However, ‘it is elementary that an 

exe&e of the police power, in order to be valid, 

must be reasonable; unreasonable regulations cannot 

be sustained under the power.’ 12 McQuillin, MtwZLcipal Corporatlone, Franchises, B34.75. Nor can tne 

’ 

police power be used by the city to deprive the franchise holder of any essential rights and privileges 

acquired thereunder. Northwestern Telegraph Exchange 

co. v. citv of Minneancrist tll Minn, 140. 83 N.wb 52-T, 

b6 N.W. 69, 53 L.R.A. 175.’ 

We, conclude that Articles 1416 and 1436a merely set out 

a limited authorization to place these utility lines on the 

rights-of-way and cannot be construed to limit the police 

power of the state, county, or municipality. Article 46d-l(c) 

and Article 46@-1 define an “Airport hazard” as any structure 

which obstructs airspace. Article 46d-15 provides that the 

eajminatlon of airport hazards are public and governmental 

fur&ions. Article 466-2 declares an airport hazard ~to be a 

public nuisance and their prevention “shouQd/ be accomplished, ’ 

to the extent legally possible, by Cxescise of the police 

power, without compensation.” 

It does not appear from the facts furnished just where, 

under Article 143&, the county indicated “the place on the 

right-of-way where such Line or lines may be placed.” Assuming that this statutory provision was followed, we hold 

that the removal requirement was a reasonable exercise of the 

police power, and the utility cornpan%@& must bear the cost 

of relocation of their lines. .On the other hand, if the 

utility companies were not afforded such a new location, then 

such removal requirement might constitute an unreasonable exercise of the police power, and, if so, the county would be 

liable to pay the cost of removing the lines and poles of the 

uti3.i ty companies. 

SUMMARY 

I 

Under the facts submitted, Hutchlnson 

County has the power to require the 

relocation of telephone and utility 

poles and lines cons tl tu ting “airport 

- 1884- 
Hon. Cecil M. Pruett, page 8 (M-380) 

hazarda," and the neceesary and 

reasonable coat ,of relocation is 

not required to be borne by the 

county. 

Prepared by 

Houghton Brownlee, Jr. 

AsBi6tant Attorney General 

APPROVED: 

OPINIOI COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Roger Tyler 

Monroe Clayton 

Woodrow Curtis 

Bob Crouch 

Dyer ~MOore, Jr. 

Louis Neumann 

w. V. Geppert 

Staff’ Legal Assistant 

Hawthorne Phillips 

Executive A8sistant 

- 1885 -