~Honorable Clyde E. Smith; Jr. 

County :Jttorney 

O&ion N+:M- 192 

.., 

Tyler County Courthouse 

Wood’vilSe. Texas 75979 

‘Re: ,Wh&her Tyler County or 

.-- .- thkutllits company must 

.’ War,, the ekpensi oi relocating ‘poles and other 

facll+tles of the utility 

Dear Mr::,&ith: ,,’ 

. company:.lncldent to the 

widening of a public road. 

‘1x1 your ~~ep&it~ fdr opinion of this offic’e you present 

the following queetldns whlah are.restated aa follows: 

‘1.. Is the:~utillty’ oompany or. the, cqahty re.sponslble 

for the, soe$ of ‘re&ocatin& pdles ena other facilities 

:of the util$ty .~aompany nece.tisitated, by .,the ,nidening 

OS ,a ~coqnty road ~$$’ such polea~ ,aix3 f,acllltles are 

loo&ted on the ,r%.,right-of+way in &II area covered 

by 3 ~3trlttim &id reoolided &i&nent dbtaihed by the 

utlllt, coinp&ny :f~orn’~‘.kiq adjpl+ig ‘property ,owner subsdquqn ~, ~t&.thd j$bl’ic,: a0duir’lng thi: ~~~+A.ng road ” t. 

rlg@t;of -*a? ,by prdec+ptlq,p? 

2.. D@s~..$ong _.uee, iof. a .pox$$on. of.* such’s roak right - 

.@-way,,; :pi%?vioueSjr it$qu$+,, b,y:,$,he publ,$c, ,by, presoriptipn~ b&ide.q &@~:~3cor&d ,e+sement give, the 

.’ .util*ty ~:.,cti&ny pre;eciilpt$v* ,rlghtd. to’,%hat ~portion 

6f %he .tioap :Y,x$ght -o$+w&y :actu&lly ~ueed’by’-them for 

dole& ‘tid .other :facliltles’? 

In r&krd to these quest&&; jou adilae that subsequent 

to .,the’ pUbl$o acquislng~.the right-of’-ivay in question by prescription, 

~adjtil~l~ property otinere gave krittin:eastimeh$e.to a utility company 

_foP. $hd erectioh OT.poles.‘and other,‘lacilitiee,.wlthin the limits of 

the PredcriptiCe ‘z%-id right-6f4ay Andy that these utility line easements have,beenon record for a number of yeara and that the poles 

md other, tacilitieu ,were. erected a number ,of yeara ago within the 

limit8 Of thd iWescriptive road right-of-way. This opinion is baaed 

Updn such stated facts, assuming the 8ame to be as etated and this 

-915- 
Hon. Clyde E. Smith, Jr., page 2 

office has made no Investigation 

rights. 

(M-192) 

or finding as to such prescriptive 

As to such poles and other Sacllitles located within the 

rights-of-wajr of public roads , Article 1436a, Vernon’s Civil 

Statutes provides, ln part, aa follows: 

n .The public agency having jurledictlon or 

control if a highway or county road, that la, the 

HIghway Commission or the Commissioners Court, as 

the case may be; may require any such corporation, 

at It,8 own expenae, to re-locate Its lines on a 

State highway or county road outside the limits of 

an incorporated city or town, 60 a8 $0 permit the 

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

lanes,,lmprovement. of the road bed, or Improvement 

OS ‘drainage ditches located on, such right -of -way by 

giving tiilrty (30) days wrltten notice to such cor- 

‘,. poratlon and specl?ylng the line or lines to be 

,moved, and indicating the place on the new rlghtOS-wq where such line or lines may be placed, 

. . * 

A person owning property encumbered by a prescriptive 

.eakement conveys or transfers any Interest In the same subject to 

ruch encumbrance. A purchaser of property subject to an easement 

that 18 openly used la charged with knowledge of the existence of 

the easement. Miles v. Bodenhelm, 193 S.W. 693.(Tex.Clv.App. 1917, 

sami-es.) The alght f structures or other vlsable objects such as 

roads, wires or ~poles’cbnnected with or on land may reasonably suggest the existence of an easement. mrkley v. Christian, 226 S.W. 

150 (!Cex.Clv.App. 1920, dimi. w.o.j.) 

;Zt ik the.‘oplniofi of this office that a utility company 

pukhaelng an easein&t’.upon,an area lying within a prescriptive 

road right-of-way would .do so with notice of the public easement 

and would take ‘kach ‘easement subject to such encumbrance, which 

in,turn would render’the relocation of the poles and other facilities, 

neoeeaitated by the widening of the right-of-way, subject to the 

terms of Article 1436a. 

It Is, ‘therefore, the opinion of this office that the 

utility company and.not the county , under such circumstances, would 

be responsible for the coats of relocating such poles and other 

facllltlee. 

Article 5517, Vernon’s Civil Statutes, provides a8 follows: 

-916- 
. 

Hon. Clyde E. Smith, Jr., page 3 .(M-192) : 

"The right of the State, all counties, lncor- ~' 

porated cities and all school districts shall not 

be barred by any of the provisions of this Title, 

nor shall any person ever acqulrt, by occupancy or 

adverse possession, any right or title to any part 

or portion of ariy road, street, alley, sidewalk, 

or grounds which belong to any town, city, or county, 

or ,whlch have been donated or dedicated for public 

use to any such town, city, or county by the owner'. 

'thereof, or which have been laid out or dedicated 

ln 'a?y manner to public use Inany town, alty; or 

county In this State. 

z. 

! The rights of the public ln,a p+escrlptlve road ease- 

~ment rest on adverse, continuous, and uninterrupted u8e, which 

will ralsea preeumptlon that the owner of the ltid granted the 

easement, arrd'that the evidence of the grant' has been lost. Such 

a U8e raises an lrrebuttable'presumptlon of grant. Alexander v. 

Schleicher County, 291 S.W. 263 (Tex,'Clv.App. 1927, affirmed 

~:~ex.Comm.App. 1928); Rhodes v. Whitehead, 27 Tex. 304 

.and Shepard v, Qalveston,A. & H.R. 

(18 

C 

1893, no wrio~~.. 

0.3 22 S.W. 267 (Tex.Clv.App. 

.' 'It l's the opinion of this office that your second questlon should be answered In the negative lnasmuoh as %ch use by # 

the utility company under its recorded easement could never ripen 

lntti'ir prescriptive right against the public by reason of said 

Article 5517. 

: 

.SUMMARY 

,The utility company is responsible for the costs 

of relocation of their poles and other facllltles lncident,to the widening of a county road'where such poles 

and'facllltles are located on a prescriptive road rlghtoi-wa$ In an area aovered by a written and recorded.easemi?pt obtained by such utl3lty company from adjoining 

property owners subsequent to the publla acquirzu",f: 

existing road right-of-way by prescription. 

o? such portion of the road right-of-way~by such public 

utility company under a recorded easement could not 

give the,utllity company any prescriptive rights to 

any portion of the road right-of-way actually used 

by It for polee and other 

/9 

acllltles. 
Eon. Clyde E. Smith, Jr., page 4 ( M -1 92) 

Prepared by Charles W. Yett 

Assistant Attorney &meral 

APPROVED: 

OPINION COMU!l'TER 

Hawthorne Phllllps, Chairman 

Kerns Taylor, Co-Chairman 

Don Cumngngs 

Jack Sparks 

.Davld Longorla 

Harold Keqnedy .' 

A. J. ~ARtXS.81, JR. 

Staff' ,Legall,Asslstant