. .



### ORNEY GENERAL 'I["EXAS

Mr. J. B. 6tevenaon Assistant CountyAttorney Kilable

County Junation,Texas

Dear Sir: Opinion No. O-6296 Rer Under the provisions of Article 126931,

Revised Civil Statutes, do the engineers, under an order frw the County Judge of Kinble Cow&y have authority to enter on the premises in question in order to make a preliminary survey on the proposed air port? And another question.

Wa are in receipt of your request dated November 24, 1944, for
an opinion of this departmenton the following two questionas

"A. On September 2nd. 1944 by order of the Coaunissionars Court of Kimble Cznty, Texas an electionwas held in Kimble County for the purpose of determiningwhether or not bonds shouldbe issued for the purpose of building,maintaining and operatingan air port in Kimbla County. Tkie election returns show that 629votes wBra cast for the issuanceof bond and 86votes against. On September 11th. 1944 the CommissionersCourt passed an order authorizing the issuance of the bonds and on October 31st. 1944, the Coaaniasionera Court oontractadwith an engineering firm to make
a field investigationand to prepare a proper survey outlining the location and boundariesof the site for an air port on the Frank Baker land and describes the land aa lying northerly and aoro88 the river from the city of Junction. This same aontraot of course containsmany other clauaea, one of whioh authoriee the County Judge to issue instructionsto the engineers and to approva their aota under the oontraot. The engineers made an attempt to make a preliminary survey on this proposed site and
waa prevented from doing 80 by an agent of the ownar. Nor what I would like to know IS whether or not under the provisions of Artiole 126Qh R.C.S. the engineers under an order from the County Judge have authority to enter these pramiaea eaoorted by a paaoa offioer in order tolnake a preliminary survey to determinewhether or not the sita is suitable for
an air port, and whether or not any person or persona interferingwith the engineersmaking said surveywould have any causa of action against the F*xmnisaionara Court or County because of the fact that a peace officer of the county resisted their interference.. .

Mr. J. B. Steveneon,page 2 O-6298



### UB. Rbether or not the owner or his agent would have any right to forceablyinterfere mlth said preliminary survey orwould said owner or his agent be guilty of a penal offense under the law."

The pertinentpart of Artiole 126911 read8 as follows;
"Section 1. A-That the governing body of any inoorporated oity in this Statemay receive through gift or dedication,and is hereby empowered to acquire, by purchasewithout condemnationor by purohase through condemnationprooeedinga,and thereaftermaintain and operatea# an airport t or lease, or sell, to the FederalGovernment, traota of land either within orwithout the aorporate limits of suoh cityand within the county in whioh such oity is situated,and the Commissionera'Court of any oounty may likewiseacquire,maintain and operate for like purpose traots of land within the limits of the oounty. * * * "

Inanswering the questions,we think it beet to firat answer the question a(1

to whether a governmentalagenoy, clothedwith the power of eminent domain, haa the implied authority to make a preliminary survey so that said governmentalagencymay know exactly the real estate itmill need to purchaee or oondemn.

Artiole 3269 under Title 52 of the Revised Civil Statuter, relating to the subjeot of eminent domain reads as follows:

"When any person, or oorporation,or dietriot, or assooiation of persona having the right of eminent domain are sued for property or for damages to property oooupied by them or it for the purpose forwhich it or they have the right to exeroise suoh power, or when a suit is brought for an injunctionto prevont them or it form goingupon suoh property or makine u~lethereof for auoh nurnoaea. the Court inwhioh suoh suit ie pendingmay determine thematte;, in-disputebetween the parties, including the condemnationof propertyand assessment of damages,upon petition or cross-billasking suoh remedy by defendant,and suoh petition or cross-bill asking such relief shall not be an admiaaion of the plaintiff's title to suoh property,end in such went the oondemnormay assert hi6 or its olaim to such orooertyand ank in the alternative to condemn the name if he or it faila-to‘e&blirh suoh olaimj end provided that, if injunctiverelief be soughsthe Courtmay grant suah reliefunder the Statute6and Rules of RquFiZy

or may, as a prerequisite for denying such relief, require defendant to give such seourityas the Courtmay deem proper for the payment of any damages thatmay be assessed on defendant's cross-bill for oondemnation." (Rmphasis supplied)

You will notice that the atatute granta authority to the oourte to grant "suoh relief under the Statutes and Rulea of Equity." Sinoe the County Commissioners*Court does not have express statutoryauthorityto make preliminary surveys,we think that the Legislature contemplatedthe necessity of granting equitablerelief in some circumstancesnot expressly, .

Mr. J. B. Stevenson,page 3 O-6296

ooveredby the statutes. This is further evidenced by said articlewhen the statute states: "whenany person * * * having the right of eminent domain are sued for property * * * or when a suit is brought for an injunction to pmvent them or it from going upon such property ormaking
use thereof for suah purpose. Construingthe statuteas a whole, the Legislaturegave equitable relief by injunotionto persons having the
s of eminent domain if anyone prevented them from going upon the property. In other rords, the Legislature gave equitable relief to persons having the right of eminent domain as well as to persons using the right of eminent domain.

The text writers sustain the proposition that an agency having the authority of eminent domain also have the implied authorityto make preliminary surveys.

"Amomentary entry for the purpose of a survey is **not** however
a taking, andmay be authorizedwithout compensationwhether the survey is preliminary to some public work or is for any other publio purpose, but a right to enter upon private land for the purpose of cutting dosn trees or of divertingwater cannotbe acquiredwithout the payment of compensation. ' Nichols on Eminent Domain, 2nd Ed., p. 310.

It All such entries, however,are limited by the neoeasities of the case and must be made with the leastpossible injury, and continued for only a reasonable time. A somewhat similarnecessity justifiesan entry on private property for the purpose ofmaking preliminary surveys. :Jnless this was allowable itwould be almost impossibleto oonstruota publiawork, suoh as a railway or oanal, It has accordinglybeen held that an entry for preliminary surveys is not a taking, butmay bo justified on the ground of neoessity. Such an entry has been held not to be a taking for which compensationmust be firstmade. If possession be continuedan unreasonable time, or any unnecessarydana@ is done, the personsmaking or authorizing the entry become trespassers ab initio." Lewis Eminent Domain, 3rd Ed., p* 433.

In Byrd IrrigationCompanyv. &nythe, 146 S.W. 1064, the court had before it an applicationfor an injunction to enjoin a land owner from "interferingwith such personswhile making such inspection,examination
or survey,under penalty of being held in contempt of this court." The IrrigatienCompany requestedthe injunotionfor the purpose of allowing certainpersons to go upon the land and inspeot the same **SO** that they in turn could testify as to the value of the land. The Courthad already held a hearing as to the value and had fixed the value of the land. The Court of CivilAppeals denied the application on the ground that the Irrigation Companyhad every aocess to the land for approximatelya year for the purpose of making a preliminary survey to determinethe best **location** for the proposed improvementsand held that the Court **nor** the statute involvedauthorised the IrrigationCompany tomake an inspeotion for the purpose of attempting to reduce the value of the land. We refer to this cae.s

since it is the only **Texas** easewe have been able to find discussing the question involvedhere. Ve quote from said case as follows:Mr. J. B. Stevenson,page 4 O-6296

" * * * Without entering into any extended diaausaion of the power of a oourt to grant an order of inspection, itmay be ateted that it has Broome OOmulOnin the lnst few year8 for aourta to grant order8 for the inspeotlonof propertyllherr it ia rhown to be neoessary for a proper exercise of judioial funotiona,and the attainment of justice, whether exeroiaed by virtue of an express statute to that effeot, or by virtue of that power ancillary to the exercise of the duties of a oour+ of equity. + l * w

29 Corpus Juris Seoundum,page 1179, suataina the proposition that any agenoy having the authority of eminent domain alao has the impliedauthority to make a preliminary rurvey before entering oondemnation prooeedings. The proposition is atsted as follmr~

"RIGHT OF ENTRY FOR PURPCSEOF SURVEY. Ithas been rtated broadly that the right of entry on property, in geod faith, for the purpose ofmaking a preliminary survey and Investigationwith the vislrof oendemnationis a neoeasary incident of the right to condemn,and the right to **enter** for preliminary surveyand examination, oofferredby some statutes,haa been regarded ata a right necessarily incidentand preliminary to authoriaedproceeding6 to oondemn."

The beat authority on the proposition is by the Court ofAppeals of Kentucky in the oa8e of Thoma6.v. City of Horse Cave, 61 S.W. (2d) 801,604. In this opinion the Court sustained the right of the oity to make a preliminary surveyaa an ancillary to condemn land for a oity waterworks. The statutes of Kentucky did not grant nn exprese authority to make the preliminary survey. We quote from the opinion as followsr

'Lastly, it ir insisted for appellant that appellee has no right
or authority to enter upon and explore land with the view of oondemnatlon purposes before the actual institutionon suoh oondemuationprooeedings. Counseldo not cite us to any authority,nor we know of none, conferring upon an individualholder of a franchise the right of preliminary swrvey and examinationas an incidentor right precedent to the institution of condemnationprooeedings,but the trend of authorities ia to the effeat that all oorporationsor pvrsons possessedof the right of eminent domain are in verted with the right and authority to enter upon private property for the purpose of aoquiring auoh property asmay be neoessary in the exercise of its franchise right.

"In the ease of WardV. Toledo; N. & C. R. Co., 1 Ohio Dee. (Reprint) 653, the oourt aaidr 'The legislature, it is oonoededmay impart to the railroad oompany the right of eminent domain upon and over the lands of this state, for the purpose of public improvements. The right of survey and examination is an inoident of the right of appropriation, and necessary to its proper exercise. It is not known hew a company could very well determineupon the right of appropriatingthe roil upon whioh to OOn8tmOt its road,unless it has the prior right of examination for that purpose.'Mr. J. B. Stevenson,page 6 O-6296

'"TO the rame effeot ia the case of Litohfieldv. Bond, 186 R. y. 66, 78 N. E. 719. In Fox T. Weetern R. R. Co., 31 Cal. 638, the court saidr 'Tfa rnilroad is to be oonstruoted,a surveymust bemade before the oorporation oan determine the preoiee land whioh will be required3 and the oorporntionmay lawfully enter for that purpose andmay lawfully do what would otherwise be a trespass.' 1Ihea*me rule is adhered to and reiterated in 20 C. J. 680, 61 C. J. 494; Kincaidv. United States (3. C.) 35 F. (2d) 235,247.

"Railroad oompaniesand other holders of specialprivileges being investedwith this right, we conceiveof no rsssonwhy the same rule shouldnot apply to all corporations,associations,person or persona iavested with the power of eminent domain. The basio question is the right of a holder of a franohiss to aoquire by oondemnstion,If necessary, such propertyas may be necessary for the effective operation of the franchise. Before the institutionof oondemnationprooeedinga it is neoessary that the exact location,amount, and desoription of the property sought to be oondemned,be definitely ascertained,and in such oiroumstanoes,if these preliminary steps be denied, it would at least be difficult, if not lmpossi~ble,

to sucosssfullycarry out suoh oondemnationprooeedings. We do not oonoeivathat the Legislature intended tomake n useless gesture by grantingn privilegewithoutany power, expressed or implied,to carry suoh privilege into effect and operation.

"Inview of the authorities herein citedand what has been said, it follows that the right of entry upon property, in good faith, for ths purpose of making n preliminnry survey and Investigationwith the view of condemnation, is a necessary right and incident preliminary of the right precedent to oondemnntion.'

See also Lynnv. Green Bay & Minn. Ry. Co., 42 Wis.638, 5441 N. 0. & S. Ry. Co.v. Jones, 6R Ala. 48, 53: The Montana Company v. St. Louis Id.deN., 162 U. S. 180.

'TheSupreme Court of Texas in Terre11v. bparks, 135 S. 8. 621, in discussing the necessary implication in the construoticn of powwra, stated:

"Whenevera power is given by statute,averythingnecessary to make it effeotual or requisite to attain the end is implied. It is a well-establishedprinciple that statutes oontaininggrants of power are to be construed 80 aa to include the authority to do nil things necessary to accomplish the object of the grant. 'Ihe grant of an exprass power carrieswith it by neoesnary implicationevery other power necessary and proper to the executionof the power expressly granted. Where the lnw commands anything to be done, it euthoriaee the performance of whatever may be necessary for exeouting its oommands."

Consl.dering

the statutesand the authorities above cited,we **are** of the opinion that the t%unty fknmissioners’ Court of Klmble County,Mr. J. B. Stevenson, page 6 O-6296

has the authorityto make a preliminary survey for the purpose of determiningthe landmost suitable for the establishmentof a county airport.

Inyour firstquestionyou also request "toknow whether or not under the provisions of Article 1269h, Revised Civil Statutes, the engineersunder an order of the County Judgehave authority to enter these premises esoortedby a peace officer." Section 4 of Motions and Orders in 29 Texas Jurisprudence,definesan'brder" as follows:

"While the word 'order'is frequentlyused as a synonym for 'judgment'it is usually employed in a mere restricted sense. Within the terms of the narrower usage, an ordermay be defined as a command,direction, or decision of a oourt or judge on some collateralor intermediate point in a case, not detenainativeof the main issue. It is sometimes denominateda 'rulel While en order is frequently the result or consequence of a motion made and presentedby one of the parties to a suit, this is not always the case; inmany situations,a courtmay Take an order
on its om motion, without any request by a litigant. An ex parts order is onemade upon the application of only one of the parties to an action
or proceeding,without notioe to the other.

"An order, like s judgmentmay be either final or interlocutory, dependingupon whether it disposes of thematter or point in question or leaves it open for further action. Thus, an order refusing to revoke an order entered at a previous term is a final order,while an order for the preservation of propertyunder the oontrol of the court during the pendenoy of a suit is interlocutory.

"An order to show cause (or a rule nisi as it 1s also called) is onemade ex parts, directing a litigant to show causewhy it should not bemade absolute, and it becomesabsolute in the event that no such
cause is shorvni

it is in the nature of a notice, requiring the party's appearance in court."

It is, therefore, the opinion of this department that the instrumentyou refer to in your question as an "order" cannot in any manner be consideredas an order of the County Court of Kimble County, since there is no relative pending cass in said court. Such an instrument is merely an identification showing that the engineersare authorized agents of the county.

If a land owoer or the agent of a land owner should interfere,
or threaten to interfere,with the agent of Kimble County inmaking a preliminary survey,we think the proper prooeduriwould be for Kimble Co&,y to file a petition for injunctiverelief in a court of competent jurisdiction.

Having answered the main question in your request, and suggesting the proper procedure to be followed,we do not deem it necessaryMr. J. B. Stevenson,page 7 O-6296

to answer the other questions inyour letter.

Yoursvery truly

ATTORNEY GENERALOF TEXAS

By s/R. J. Long

R. J. Long Assistant RJL:EPlnc APPROVED MARCH 23, 1945

Carlos C. Ashley/e

FIRSTASSISTANT ATTORNEY GENERAL

This Opinion Consideredand Approved in Limited Conference