GENERAL 

April 29, 1949. 

Ron. Eulon c. IL911 Oplnlon Ro. v-819. 

County Attorney 

ffrlmea county Re: Authority of ,the Comlimlonerd 

Anderson, Texas Court to require removal of a 

private water line crossing 

public streets in an upinaocporateb town. 

Dear Mr. Hall: 

In your request for an .oplnion you state that 

the Commls3loners~ Court OS Or*ea County~lss~ea a franchit30 to ths~Gulf ,Coast Water Company in 1930 ~grantlig 

them the'prlvllege of ,lay.$ng pipe and selling,wa*r~to~ 

the public in some fouz'or fire unlncorporated’,toMm l.i- 

@&.ng the town of Iala; Some iew VeekS ago;‘,& rdsl: '~ 

dent of the town of Iola drilled a private well'on hlzf 

res+lencs for his prlrcite us4 and benefit. Th$s lndlvldual dealrIng to pipe water to hle barn some four blocks 

away layed his pipe acro88 two streets and one alley In 

the unlnoorporated tovn of Iola. The stmets 'OS Iola 

are maintained entirely by the Commlssloners~ Court of 

ffrlmes County. This resident made applloatlon for permlsslon to lay said pipe acrow such streets;- It was 

denied by the Commlsslonera~ Court. 

the 

the 

You ask the followlug questionr 

%~@a the Conmissloners~ Court a? t3Mmes 

County, Texas, have the authority to Issue an 

order to this resident ln Iola, Texas, requlrlng him to remove his plpea from the publio 

streetsf" 

We know of no rule of law whloh would prevent 

County 'or State from owning a. fee simple interest In 

streets of Iola, Texas, Inasmuch aa the same Is uumcorporated, but for the purpose of this opinion we are 

assumlng that the public only has an easement In the 

streets .umler couslderatlon. Therefore, nothing 1s to 

be construed in this opinion as indicating permlsslon 

for the laying of pipes underneath the streets in question should the County or State have an interest in the 
eon. Rulon C. ~111, Page 2 (V-819) 

right-of-way other than 

that the pipes will not 

street. 

an easement. We further assume 

constitute an obstruction to the 

In an oplnlon numbered V-730 by the Attorney 

General, dated December 10, 1948, it~was stated that a 

Commlssloners~' Court did have the authority to assume 

control over streets and alleys In an unincorporated 

town. 

The primary design In laying out and constructing streets Is for the purpose of travel and passage for 

the public. Rights aa to Ingress end egress, nearly resembling private rights, are given abutting owners. Havlng exclusive control over the streets, the Legislature, 

or those to whom It has delegated powers over streets, 

have the right and authority to Impose reasonable terms 

and conditions upon the right to use them. Subject to 

rlghta of abutting owners, atreeta may be closed to all 

business traffic, the speed of vehicles regulated, obstructions may be prevented or removed, llcensea to use 

the streets may be required, travellera may be required 

to obey the direatlons of police, vehicles having heavy 

loads may not be permftted on certsln streets, or be required to have wide tires, the weight of loada may be 

limited, and hacks may be compelled to remain at certain 

stands. These are only part of the many regulations 

that have been held valid. 3 Dll.lon on Municipal Corporations (5th ed. 2911) 1849, Set, 1163-1167. 

In the case of S. H. Kreea & CO. V. City of 

M~CUII~, 82 SO. 775, 7 A.L.R. 640,m.a. SUP. 19191, the 

court atntea as followsr 

n .the right of the owner of the fee 

in a eiriei to use the subaurfaoe Is the same 

a8 Is other property, a0 long as he does not 

interfere with the rights of the municipality 

belov the subsurface, or sewers, or pipes, or 

water, or other public purposes, it follows 

that the owner haa the right subject to reasonable municipal regulation to make openings 

In the sldewalks to gain access to the area 

beneath. . e ." 

2 Elliott on Roads and Streets (4th ed.) 1142, 

reads aa follows: 
HOG. Hulon C. Hall, Page 3 (v-819) 

"Subject only to the public easement -- 

the proprietor haa all the usual right8 and 

remedlea of the owner of a freehold. He may 

sink a drain below the subsurface of a road 

If proper care be taken to cover It so that 

It shall remain safe and convenient. He may 

carry water In pipes under the way and he 

may mine It.' 

In the case of ColoRrove Water Co. v. Hollywood, 151 Cal. 425, 90 Pac. 

m7), the Court stated: 

1053, 13 L.R.A.(lV.S.J 904 

"The abutting owner of the fee of a city 

street has the right to lay a water pipe for 

his own 1~34 beneath the subsurface ao far as 

he can do 80 without lmpealng the public use, 

and, for that purpoae, may excavate the soil, 

subject to such restrictions by the muulclpalIty as will Insure the least Interruption to 

the public eaaement.n 

(Tex. 

In the case of Clutter v. Davis, 62 S.W. 1107 

Clv. App. 1901, error refused), the Court stated 

aa Pollowa:~ 

"When the sovereign Imposes a public 

right-of-way upon the iana 0s an 3.nalvlaua1, 

the title of the former owner la not extlngulahed, but la so quallflea that It can only be enjoined subject to that easement. 

The former proprietor still retains 4xcluslv4 

right In all mines, quarries, springs of water, timber and earth for every pu~poae not 

Incompatible with the public right-of-way." 

In view of the foregoing It Is our opinion that 

your queatlon should be answered la the negative. 

Thla opinion la not to be construed as passing 

upon the rights of Individual owners if such water pipes 

should be acroaa some Intervening own8rta land. 

SUMMARY 

The owner of the fee in a street haa the 

right to use the subsurface ao Zong as he does 

not interfere wlth the rights of the munlclpa1lty. 
Hon. Hulon C. Hall, Peg8 4 (V-819) 

Aaaumlng the County only haa 8n easement 

and there la no public obatructlon, the Commlaalonera~ Gourt would not have the authority 

to require au abutting owner to remove pipes 

underneath atreeta in au unlncorporat4d town. 

You-8 very truly, 

ATTORREY GENERAL OF TEXAS 

BW:bh Assistant 

APPROVRD 

e 

2. /6cQiiM 

FIRST ASSISTART 

ATl'QRlcEp GENERAL