Honorable Jerrv

CountyAttorney Sutton County Sonora,Texas N. Shurley OpinionNo. 791 Re: Does the Commissioners' Court of Sutton County have the power of eminent domain to condemn land for flood control easementswhere land is situated In an adjacent county and related questions.

Dear Mr. Shurley:

Your request for an opinion concerns severalquestions. The first que,stionis:

"1. Does the Commissioners'Court of Sutton County have the power of eminentdomain to condemn land for flood control easements if the land is situated in an adjacent county?"
It is our understandingthat a flood controlproject has been instituted in your countyunder the provisions of Article 1581e, Vernon'sAnnotated Civil Statutes. Your letter to us stated that a portion of the area from which there is drainage intoyour county lies in an adjacent county and that your Commissioners' Court is the contractingbody for thatproject. The pertinent sections of Article 1581e, Vernon's Annotated Civil Statutes follow:

"Section1. All counties In this State shallhave the right of eminent domain to condemn and acquire real property and easementsand right-of-waysover and throughall public and private lands for the making and digging of canals,drains, levees and improvements in theHonorableJerry N. Shurley,page 2 (w-791)

county for flood controlpurposes and for drainage as related to flood control,and for providing necessary tlets for waters in such counties. No-appE:l from the finding and assessment of damages by the Special Commissioners appointed for thatpurpose shall suspend the work for which the land, right-of-way,easement, or other property is acquired. Where, in the judgment of the Commissioners'Court, the acquisition of the fee in the land is necessary, condemnation of the fee titlemay be had; provided, however, that the counties shallnot have authority to condemn the fee of, as distinguishedfrom an easement or right-of-wayover, across or upon, any property lawfullyused or occupiedby any public utility, railroad, canal, levee or other person, concern, corporation or body politic devoting Its property to a public use.
"Sec. 2. Theproceedings with respect to condemning lands or Interests therein, or other property, for the uses above specified shallbe controlledby the statutesregulating suchproceedings by counties in other cases, as provided in Article 3264 Revised Statutes of Texas, 1925, et seq." (Emphisissupplied.) Article 3264 reads as follows:
"Sec. 1. When real estate is desired for public use by the State or by a county, or a political subdivisionof a county, or by a city or town, or by the United States Government, or by a corporationhaving the right of eminent domain, or by an irrigationdistrict,water lmprovement district, or a water power control district createdby authority of law, the party desiring to condemn the property after having failed to agree with the owner of the land on the amount of damages shall file a statement in writing with the county judge of the county In which the land or a part thereof is situated. It shalldescribe the land sought to be condemned. state the purpose for which-it is Intended to be used, the name of the owner, if known, and that the plaintiff and the owner have been unable to agree upon the value of the land or the damages. Where the land lies In two or more counties, in one of which the owner resides, the statement. _.

Honorable Jerry N. Shurley, Page 3 (WW-7%)

shallbe filed in the county of the owner's residence." (emphasissupplied.)
It appears to be quite clear that Article 1581e, Section 1,V.A.C.S. gives a county the right of eminent domain in all public and private lands for flood control purposes.me onlypossible language In that sectionwhich might be urged as limiting the right of eminentdomain to land In the condemningcounties, is "improvementsin the county." However, a reading of the entireAct.shows that this phrase Is present for the solepurpose of restricting condemnationproceedings to thoseprojects of benefit to the condemning county.

In construing this Act, we are guided by the well-known rules of statutory construction. The court in Magnolia Petroleum Co. v. Walker (Sup.Ct.of Tex.) 83 S.W.2d929, 934, stated:

'No Inflexiblerule can be announced for the construction of statutes. However, the dominant rule to be observed is to give effect to the Intention of the Legislature. Generally the intent and meaning is obtainedprimarily from the language of the statute. In arriving at the Intent and purpose of the law, it is proper to consider the history of the subjectmatter Involved, the end to be attained, themischief to be remedied,and the purposes to be accomplished."
Other jurisdictionsconcurwith the Magnolia Petroleum Co. case, supra, in applying sucha rule to the interpretation Tall statutes. It is generallyaccepted that the intent of the legislature is paramount in the interpretationof public grants of power just as It is paramount in the interpretation of all laws. Acheson v. Johnson, 147 Me. 275, 86 A.(2d) 628 (1952);Valentine v. Lament, 20 NJ. Super. 454, 90 A.(2d) 143 (195Z?]j

State V. Rltschel, 220 Minn. 578, 20 N.W.2d 673, 168 A;L.R. 274 (1945) Himonasv. Denver & R.G.W.R.Co., 179 F.2d 171 (1949). '

Then in Popham v. Patterson, 121 Tex. 615, 51 S.W.28 680, 683, the court stated:

"In construing statutes it Is the duty of the court to ascertain the legislative intent, and, when such Intent is once arrived at, It should be given effect; in fact, such._ .- .

Honorable Jerry N. Shurley,page 4 (WW-791)

intent Is the law. In determining the legislative Intent, the court shouldnot look alone to any one phrase, clause, or sentence of the ACtj and this Includes the caption, the body of the Act, and the emergency clause.” By applying these rules, we look first to the ca tion of Acts 1949, Regular Session, Ch. 407, p. 759, (Art. i 15 le V.A.C.S.). There the purpose is plainly said to be ".

. .for making and digging canals,drains, flood control.

. .' levees and improvementsfor It Is to be noted that there is no restrictive language In the caption. Now, what does flood control encompass?

"Floodingrivers are no respecters of county lines. Suitable dam sites are determined by physical and topographical characteristicsand not by arbitrarily fixed boundaries of political subdivisions. It Is possible that the constructionof a dam at a particular sitewould be of no material or practicalvalue to the countywithin which such sitewas located,yet such dam and the resultant impounding of watersmight be of inestimable value to those livingwithin countiesnearer themouth of the river. In view of these circumstances, it would seem unlikely that the Legislaturewould arbitrarily restrict the power of eminentdomain to the one particular county In which the required landwas located." Richardsonv. Cameron County, 275 S.W.2d 709 -(Tex.Civ.App.,

no writ history.)
It seems uncontrovertedthat a countywould be almost powerless to effect flood control if restricted to Its borders. Since the Legislaturemust have intended to promulgate a useful law, we cannot say that Sutton Countyls right of eminent domain is restricted to its borders. Next we look to Section 2 of Article 1581e V.A.C.S.,which requires that the condemnation proceedingsbe controlledby the statutesregulating suchproceedings for counties in other cases, as provided by Article 3264 V.A.C.S. Article 3264 V.A.C.S., supra, clearly contains provisions for condemnation of land in other counties. Again, we cannot say that the Legislaturedid not intend for this proceduralprovision to be applicable.

By inspecting the general scheme of le v. Texas (Commissionof Appeals) 53 S.W.2d 774 -7Honorable Jerry N. Shurley,page ,5(WW-791)

flood control,we again see the Intent of the Legislature. Article 7880-3 V.A.C.S. provides:

"Water Control and ImprovementDistricts may be organizedunder the, provisions of Section 59 of Article 16 of the Constitution for any one ormore of the provisions therein provided as follows: 'Includingthe control, storing,preservationand distribution of itswaters and flood waters.

. O *I' This is essentiallythe same function required of countiesby Article 1581e, V.A.C.S. Article 7880-125V.A.C.S. provides that water districtsmay condemn "all lands

. . . easements,rlghtsof way.
. .n (emphasis suppliw for accomplishing the purposes of the Act which is the same type language used in Section 1 of Article 1581e V.A.C.S. It continuesby interpretingthis to mean that the districtsmay acquire land eitherwithin or beyond the boundaries of the condemningdistrict. A fortiorl this indicates that the Legislature, in legislation of this kind, does not hold political boundaries to be limiting factors. Further, by enactingArticle 7880-126(n) the Legislature affirmatively said that any county could "elect to proceed to condemnation under the provisions of, and in the manner establishedby

. . ." the Water District Act. Accepting this grant of power, we must assume that itmeant justwhat It said, i.e., that counties could condemn in the samemanner as a water district either within or without the boundaries of the condemning county. There is no logical reason to differentiatethe rights of eminent domain In condemnationproceedin s by a county under Article 1581e V.A.C.S. and Article 73 0-126(n)V.A.C.S. It 8 is only the mechanicalprocedure that is different.

Therefore,we answer this first question in the affirmative.

Your second question is as follows:
"2

. Can Article 7880-126(n) be used by the Commissioners' Court without forming a water district?" Article 7880-126(n),V.A.C.S., statesas follows: "Any Count --cd Levee District, or Navigation District of s Statemay elect to proceed to condemnationunder the provisions of, and In the manner establishedby, this Act, having regard only to causing suchproceedings to conform toHonorable Jerry N. Shurley,page 6 (WW-791)

the law of the being of any such governmental agency." (Emphasis supplied.)
The Acts of 1925, 39th Leg., Ch. 25, are codifiedas Articles 7880-l to 7880-153,V.A.C.S. inclusive. Article 7880-126(n) clearlymakes suchActs available to countiesas to condemnation. SuchArticle is quoted next above. It is seen that thisArticle applies only to an election of a condemnationprocedure, and does not require the county to organize itself as a Water District. ThisArticle is designed to be interchan eable with Article 3264, v.A.c.s. as indicatedby Article 7880-128(a) which permits the Water District's Board of Directors to elect to proceed under the provisions of Title 52, hinent Domain, V.A.C.S. The Legislature obviously Intended to provide reciprocity of procedures in condemnation.

We therefore answeryour secondquestion in the affirmative.

Your third question is:

“3

. If the answer to No. 1 is affirmative, what is the condemnationprocedure to be employed?"
In view of our answers to questions 1 and 2, supra, our conclusion is that the Commissioners'Court has the power of election to proceed in condemnationunder eitherArticle 1581e V.A.C.S. (utilizin or under Article 7% the procedure set out In Article 3264V.A.C.S.) 80-126V.A.C.S.
Your fourth question is as follows: ,114. If the answer to No. 1 is negative, how will the Commissioners'Court of Sutton Countyproceed to obtain such easements?" Since our answer to question No. 1 was in the afflrmative, we do not tender an answer to this question.

SUMMARY
1. The Commissioners'Court of Sutton County does have the power of eminent domain to condemn land for flood control easements where the land Is situated In an adjacent county.Honorable Jerry N. Shurley, Page 7 (WW-791)

2. Sutton Countymay elect to proceed to condemnationunder the provisions of Article 7880-126(n)V.A.C.S.,without forming a water district.
3. The Commissioners'Court of Sutton Countymay elect to proceed in condemnation of land situated in an adjacent county under eitherArticle 1581eV.A.C.S. or underArticle 7880-126V.A.C.S. Very truly yours,
WILL WILSON Attorney General of Texas

,44/W Donald R. Bernard Assistant DRB:ljb
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman

W. Ray Scruggs Jack N. Price Morgan Nesbitt

REVIEWED FOR THE ATTORNEY GENERAL By: Leonard Passmore