AUSTIN. -rrcXAU 7es711

CXAWYOB1ID c.WA'WIVS A%-rOYNgYa-RII. November 17, 1969

Dr. George J. Beto, Director Department of Corrections Huntsville, Texas 77340 Opinion No. M- 508
Re: Whether the Texas

.Board of Corrections must collect from public utilities a fair consideration forplacing public utility lines on or across existing public roadways traversing State land under the control of the Department of Corrections, Dear Dr. Beto: and related question.
In your request for opinion of this office, you present the following questions: 1) Is the Texas Board of Corrections obligated to collect andmust public utilities pay a fair and adequate consideration forplacing public utility lines in, on, along, over or across existing public roadways which traverse State-owned landwhich isunder the custody and control of theTexas Department of Corrections? 2) May the Texas Board of Corrections, in the grant of apublic roadway easement, limit the use of such easement to roadway purposes only and reserve the exclusive right togrant public utility easements in,on, along, over or across such roadway easement? Section 1of Article 6203d, Vernon's Civil Statutes, authorizes theTexas Board of Corrections, with 

### consentof the Governor andAttorney General, to:
n

. . .grant permanent and temporary right-of-way easements forpublic highways, roads and streets, and ditches, and for electric lines andpipelines consisting ofwires, pipes, poles and other necessary equipment for the transmission or conveyance

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Dr. George J. Beto, Page 2 (M-5081 

# of,or distribution of,water, electricity, gas, oil or other similar substances or commodities,

. . .along, across and over any and all lands now owned by the State of Texas as apart of the Penitentiary System,
. . .” Section 2of the sameArticle provides that '.
. .such grants and leases shallbe executed only upon a fairand adequate consideration.
. . .'I However, public utilities - including telephone, telegraph, water, gas and electric corporations - are given express legislative authority by virtue of such Articles as 1416, 1433, 1436a and 1436b, Vernon's Civil Statutes, to lay their lines along, over and across public streets and highways within the State. The Court inJones v. Carter,-101 S.W. 514 (Tex.Civ.App. 1907, error ref.) stated atpage 516: 11

. . .Light, sewers, gas, andwaterworks are among the common necessities ofmodern cities, and it is a matter of,common knowledge that such plants cannot be constructed and operated without running the lines andmains along or across the streets. They are some of the common uses to which streets arenecessarily devoted."
Ithas been recognized further that it is in thepublic interest to receive utility services: therefore, public utilities are authorized touse the streets and highways. State v. City of Austin (Statev. City ofDallas), 160 Tex. 348, 331 S.W.2d 737 (1960). The Legislature acting for the State hasprimary and plenary power to control public roads and streets. Recognizing this proposition, the Court in State v. City of Dallas (Statev. City ofAustin), 319 S.W.Zd 767 (Tex.Civ.App. 1959, aff. 331 S.W.2d 737) said atpage 773: "There can be noquestion but that the Legislature can lawfully permit cities and private corporations toplace facilities in streets and highways toprovide essential utility service for thepublic,
. . ." The Legislature has seen fit to grant direct statutory authorization topublic utilities to use public roads and

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Dr. George J. Beto, Page 3 (M-508)

highways. Some such authority is found inArticles 1416, 1433, 1436a and 1436b,Vernon's Civil Statutes. Itwould therefore appear that Article 6203d,Vernon's Civil Statutes, would be rendered inapplicable to thequestion presented, 

### sincenoadditional grant of an easement would be necessary inorder to entitle public utilities to take advantage of the right-of-way of existing public roadways. Accordingly, the Texas Board of Corrections would not be obligated to collect, nor public utilities required to pay, forplacing lines in,on, along or across existing public roadways traversing State landunder the custody and 

### controlof the Texas Department of Corrections. Question 2relates to the power of theTexas Board of Corrections togrant 

### aneasement for roadway purposes, while reserving the exclusive right to grant public utility easements along and across the roadway easement.
Ithas been held that the erection of telephone poles and wires along apublic street or highway does not impose an additional servitude upon thehighway.so as to require thepublic utility to condemn the landof the street for that purpose. Roaring Springs Town-Site Co. v. Paducah Telephone Co., 164 S.W. 50 (Tex.Civ.App. 1914, aff. 212 S.W. 147). Ithas further been held that the statute so authorizinq is constitutional, 

# x, though no additional compensation isprovided. Huffaker v.. Lea County Electric Co-operative, 344 S.W.2d 915, 918 (Te Civ.App. 1961, error ref. n.r.e.); accord, Continental Pipe Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941, error ref. w.o.m.1
In Roaring Springs Town-Site Co. v. Paducah, 109Tex. 452. 212 S.W. 147 (1919),an attemnt had beenmade todedicate streets and alleys-in a.townsite forpublic use, while reserving exclusive right to grant, forvaluable consideration, the right to use the streets and alleys to construct telephone, telegraph, electric wires and poles, and gas, water and sewermains. The Court held that under thepublic policy of the State, apublic utility corporation had the authority to construct andmaintain itspoles and lines along the streets and alleys dedicated for public use. The Court stated atpage 148: 1,

. . .the attempt to reserve . . .aright inconsistent with such authority cannot be upheld. For the general rule that the dedicator may impose such restrictions ashe may see fiton making adedication ofhis property is subject to the thoroughly established limitation that the restriction be not repugnant to thededication or against public policy.
. . ."

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The Legislature, by virtue ofArticles 1416, et seq., has authorized public utilities toplace their lines in, over, along and across public streets and roads within the State. Such authorization is not restricted to roads andhighways towhich the State or County owns the fee. Continental Pipe Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941, error ref. w.0.m.). Therefore, by applying the same reasoning,advanced in theRoaring Springs Town-Site Co. case, the attempt to reserve exclusive right to grant apublic utility easement over a roa'dway easement would be inconsistent with the direct legislative grant of authority to public utility companies to lay their lines over, along and across anypublic road, street orhighway within the State. Accordingly, question 2 is answered in the negative. The Texas Board of Corrections is neither authorized nor entitled to limit the use of a public roadway easement to roadway purposes only, while reserving the exclusive right to grant public utility easements in, on, along, over or across such roadway easement. SUMMARY

Public utilities, by virtue of the direct legislative grant of Articles 1416, 1433, 1436a, 1436b, and other similar Statutes, are authorized toplace their facilities within the right-of-way along public roads, streets andhighways inthis State. Therefore, the Texas Board ofCorrections isnot obligated to collect normust public utilities pay forplacing their lines in, on, along, over or across existing public roadways which traverse State-owned land under the custody and control of the Texas Department of Corrections. Accordinclv. the Texas Board of Corrections iswithout power.to 

### reserve,in the grant of an easement forpublic roadway purposes, the exclusive right to grant public utility easements over such public roadway easement.

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Dr. George J. Beto, Page 5 (M- 508)

Prepared byDONALD JONES Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman John Reeves Harold Kennedy Roger Tyler Ronald Luna
MADE F. GRIFFIN Staff Legal Assistant
NOLA WHITE First Assistant

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