. . 

ORNEY GENERAL 

'I["EXAS 

Mr. J. B. 6tevenaon 

Assistant County Attorney 

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 department on the following two questionas 

"A. On September 2nd. 1944 by order of the Coaunissionars Court 

of Kimble Cznty, Texas an election was held in Kimble County for the purpose of determining whether or not bonds should be issued for the purpose 

of building, maintaining and operating an air port in Kimbla County. Tkie 

election returns show that 629 votes wBra cast for the issuance of bond 

and 86 votes against. On September 11th. 1944 the Commissioners Court 

passed an order authorizing the issuance of the bonds and on October 31st. 

1944, the Coaaniasionera Court oontractad with an engineering firm to make 

a field investigation and to prepare a proper survey outlining the location and boundaries of 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 contains many other 

clauaea, one of whioh authoriee the County Judge to issue instructions to 

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 determine whether or not the sita is suitable for 

an air port, and whether or not any person or persona interfering with 

the engineers making said survey would 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 or would said owner 

or his agent be guilty of a penal offense under the law." 

The pertinent part of Artiole 126911 read8 as follows; 

"Section 1. A-That the governing body of any inoorporated oity 

in this State may receive through gift or dedication, and is hereby empowered to acquire, by purchase without condemnation or by purohase through 

condemnation prooeedinga, and thereafter maintain and operate a# an airport t or lease, or sell, to the Federal Government, traota of land either 

within or without the aorporate limits of suoh city and within the county 

in whioh such oity is situated, and the Commissionera' Court of any oounty 

may likewise acquire, maintain and operate for like purpose traots of land 

within the limits of the oounty. * * * " 

In answering the questions, we think it beet to firat answer 

the question a(1 to whether a governmental agenoy, clothed with the power 

of eminent domain, haa the implied authority to make a preliminary survey 

so that said governmental agency may know exactly the real estate it mill 

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 for which 

it or they have the right to exeroise suoh power, or when a suit is brought 

for an injunction to prevont them or it form going upon suoh property or 

makine u~le thereof for auoh nurnoaea. the Court in whioh suoh suit ie 

pending may determine the matte;, in-dispute between the parties, including 

the condemnation of property and assessment of damages, upon petition or 

cross-bill asking 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 oondemnor may assert hi6 or its olaim 

to such orooerty and ank in the alternative to condemn the name if he or 

it faila-to‘e&blirh suoh olaimj end provided that, if injunctive relief 

be soughsthe Court may grant suah relief under the Statute6 and Rules 

of RquFiZy or may, as a prerequisite for denying such relief, require defendant to give such seourity as the Court may deem proper for the payment 

of any damages that may 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 statutory authority to 

make preliminary surveys, we think that the Legislature contemplated the 

necessity of granting equitable relief in some circumstances not expressly 
, . 

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

oovered by the statutes. This is further evidenced by said article when 

the statute states: "when any 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 or making 

use thereof for suah purpose. Construing the statute as a whole, the 

Legislature gave equitable relief by injunotion to 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 authority to make 

preliminary surveys. 

"A momentary entry for the purpose of a survey is not however 

a taking, and may be authorized without compensation whether 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 diverting water cannot be acquired without 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 least possible injury, and continued 

for only a reasonable time. A somewhat similar necessity justifies an 

entry on private property for the purpose of making preliminary surveys. 

:Jnless this was allowable it would be almost impossible to oonstruot a 

publia work, suoh as a railway or oanal, It has accordingly been held 

that an entry for preliminary surveys is not a taking, but may bo 

justified on the ground of neoessity. Such an entry has been held not 

to be a taking for which compensation must be first made. If possession 

be continued an unreasonable time, or any unnecessarydana@ is done, the 

persons making or authorizing the entry become trespassers ab initio." 

Lewis Eminent Domain, 3rd Ed., p* 433. 

In Byrd Irrigation Company v. &nythe, 146 S.W. 1064, the court 

had before it an application for an injunction to enjoin a land owner from 

"interfering with such persons while making such inspection, examination 

or survey, under penalty of being held in contempt of this court." The 

Irrigatien Company requested the injunotion for the purpose of allowing 

certain persons to go upon the land and inspeot the same SO that they in 

turn could testify as to the value of the land. The Court had already 

held a hearing as to the value and had fixed the value of the land. The 

Court of Civil Appeals denied the application on the ground that the 

Irrigation Company had every aocess to the land for approximately a year 

for the purpose of making a preliminary survey to determine the best 

location for the proposed improvements and held that the Court nor the 

statute involved authorised the Irrigation Company to make 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 ease we have been able to find discussing the question involved here. 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, it may be ateted that 

it has Broome OOmulOn in the lnst few year8 for aourta to grant order8 

for the inspeotlon of 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 

implied authority to make a preliminary rurvey before entering oondemnation prooeedings. The proposition is atsted as follmr~ 

"RIGHT OF ENTRY FOR PURPCSE OF SURVEY. It has been rtated 

broadly that the right of entry on property, in geod faith, for the purpose of making a preliminary survey and Investigation with the vislr of 

oendemnation is a neoeasary incident of the right to condemn, and the 

right to enter for preliminary survey and examination, oofferred by some 

statutes, haa been regarded ata a right necessarily incident and preliminary to authoriaed proceeding6 to oondemn." 

The beat authority on the proposition is by the Court of Appeals 

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 survey aa 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 institution on suoh oondemuation prooeedings. 

Counsel do not cite us to any authority, nor we know of none, conferring 

upon an individual holder of a franchise the right of preliminary swrvey and examination as an incident or right precedent to the institution 

of condemnation prooeedings, but the trend of authorities ia to the effeat that all oorporations or pvrsons possessed of 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 as may be neoessary 

in the exercise of its franchise right. 

"In the ease of Ward V. Toledo; N. & C. R. Co., 1 Ohio Dee. 

(Reprint) 653, the oourt aaidr 'The legislature, it is oonoeded may 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 determine upon the right of appropriating the 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 Litohfield v. Bond, 186 R. y. 

66, 78 N. E. 719. In Fox T. Weetern R. R. Co., 31 Cal. 638, the court 

saidr 'Tf a rnilroad is to be oonstruoted, a survey must be made before 

the oorporation oan determine the preoiee land whioh will be required3 

and the oorporntion may lawfully enter for that purpose and may lawfully 

do what would otherwise be a trespass.' 1Ihe a*me rule is adhered to and 

reiterated in 20 C. J. 680, 61 C. J. 494; Kincaid v. United States (3. C.) 

35 F. (2d) 235,247. 

"Railroad oompanies and other holders of special privileges 

being invested with this right, we conceive of no rssson why the same rule 

should not 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 

property as may be necessary for the effective operation of the franchise. 

Before the institution of oondemnation prooeedinga 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 sucosssfully carry out suoh oondemnation prooeedings. We 

do not oonoeiva that the Legislature intended to make n useless gesture 

by granting n privilege withoutany power, expressed or implied,to carry 

suoh privilege into effect and operation. 

"In view of the authorities herein cited and 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 Investigation with the view of 

condemnation, is a necessary right and incident preliminary of the right 

precedent to oondemnntion.' 

See also Lynn v. 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. de N., 162 U. S. 180. 

'The Supreme Court of Texas in Terre11 v. bparks, 135 S. 8. 621, 

in discussing the necessary implication in the construoticn of powwra, 

stated: 

"Whenever a power is given by statute, averything necessary to 

make it effeotual or requisite to attain the end is implied. It is a 

well-established principle that statutes oontaining grants 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 

carries with it by neoesnary implication every other power necessary and 

proper to the execution of 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 statutes and 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 authority to make a preliminary survey for the purpose of 

determining the land most suitable for the establishment of a county 

airport. 

In your first question you also request "to know whether or 

not under the provisions of Article 1269h, Revised Civil Statutes, the 

engineers under an order of the County Judge have authority to enter 

these premises esoorted by a peace officer." Section 4 of Motions and 

Orders in 29 Texas Jurisprudence, defines an'brder" as follows: 

"While the word 'order' is frequently used as a synonym for 

'judgment' it is usually employed in a mere restricted sense. Within the 

terms of the narrower usage, an order may be defined as a command, direction, or decision of a oourt or judge on some collateral or intermediate 

point in a case, not detenainative of the main issue. It is sometimes 

denominated a 'rulel While en order is frequently the result or consequence of a motion made and presented by one of the parties to a suit, 

this is not always the case; in many situations, a court may Take an order 

on its om motion, without any request by a litigant. An ex parts order 

is one made upon the application of only one of the parties to an action 

or proceeding, without notioe to the other. 

"An order, like s judgment may be either final or interlocutory, 

depending upon whether it disposes of the matter 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 property under 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 one made ex parts, directing a litigant to show cause why it should 

not be made absolute, and it becomes absolute 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 

instrument you refer to in your question as an "order" cannot in any 

manner be considered as 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 engineers are 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 in making a 

preliminary survey, we think the proper prooeduri would be for Kimble 

Co&,y to file a petition for injunctive relief 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 necessary 
Mr. J. B. Stevenson, page 7 O-6296 

to answer the other questions in your letter. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/R. J. Long 

R. J. Long 

Assistant 

RJL:EPlnc 

APPROVED MARCH 23, 1945 

Carlos C. Ashley/e 

FIRST ASSISTANT 

ATTORNEY GENERAL 

This Opinion Considered and Approved in Limited Conference