~Honorable Clyde E. Smith; Jr.

County :Jttorney O&ion N+:M- 192

.., Tyler CountyCourthouse 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 followingqueetldnswhlah are.restatedaa follows:

‘1.. Is the:~utillty’ oompany or.

the, cqahty re.sponslble for the, soe$ of ‘re&ocatin& pdles ena other facilities :ofthe 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+wayin &II area covered by 3 ~3trlttim &id reoolided &i&nent dbtaihedby the utlllt, coinp&ny

:f~orn’~‘.kiq

adjpl+ig ‘property ,ownersubsdquqn~,

~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 questionby 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 iWescriptiveroad 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 Sacllitleslocatedwithin the rights-of-wajr

of public roads, Article 1436a,Vernon’s Civil Statutesprovides, ln part, aa follows:

n .The public agency having jurledictlonor control if a highway or county road, that la, the HIghway Commission or the CommissionersCourt, 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 incorporatedcity 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?ylngthe 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 encumberedby 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 structuresor 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.)
;Ztik the.‘oplniofi of this office that a utility company pukhaelng an easein&t’.upon,an area lying within a prescriptive road right-of-waywould .doso with notice of the public easement and would take ‘kach‘easement subject to such encumbrance,which in,turnwould render’the relocation of the poles and other facilities, neoeeaitatedby 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 provisionsof 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+escrlptlveroad ease- ~mentrest on adverse, continuous,and uninterruptedu8e, which will ralsea preeumptlonthat 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 prescriptiveright against the public by reason of said Article 5517. : .SUMMARY

,Theutility 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'facllltlesare located on a prescriptiveroad rlghtoi-wa$ In an area aovered by a written and recorded.easemi?pt obtainedby such utl3lty company from adjoining property owners subsequentto the publla acquirzu",f: existing road right-of-wayby prescription. o? such portion of the road right-of-way~bysuch public utility company under a recorded easement could not give the,utllitycompany any prescriptiverights to any portion of the road right-of-wayactuallyused by It for polee and other /9 acllltles.Eon. Clyde E. Smith, Jr., page 4 (M-192 )

Preparedby CharlesW. Yett AssistantAttorney &meral
APPROVED: OPINION COMU!l'TER Hawthorne Phllllps,Chairman Kerns Taylor, Co-Chairman Don **Cumngngs** Jack Sparks .DavldLongorla Harold Keqnedy .' A. J. ~ARtXS.81,

JR. Staff' ,Legall,Asslstant