GENERAL



### April 29, 1949.

Ron. Eulon c. IL911 OplnlonRo.v-819. CountyAttorney ffrlmea county Re: Authorityof ,theComlimlonerd Anderson,Texas Court to requireremovalof a 

### privatewater line crossing publicstreetsin an upinaocporatebtown.
DearMr. Hall:

In your requestfor an .oplnion you state that the Commls3loners~ Court OS Or*ea County~lss~ea a 

### franchit30 to ths~Gulf,Coast

Water Companyin 1930~grantlig them the'prlvllegeof ,lay.$ng pipe and selling,wa*r~to~ the public in some fouz'orfireunlncorporated’,toMm 

### l.i- @&.ng the town of Iala; Some iew VeekS ago;‘,& 

### rdsl: '~ dent of the town of Ioladrilleda privatewell'onhlzf res+lencsfor his prlrcite us4 and benefit. Th$s 

### lndlvldual dealrIngto pipewater to hle barn some fourblocks away layedhis pipe acro88two streetsand one alley In the unlnoorporated tovn of Iola. The stmets 'OSIola are maintained 

### entirelyby the 

### Commlssloners~ Court of ffrlmes 

### County. Thisresidentmade applloatlonforpermlsslonto lay saidpipe acrow 

### such streets;-It was deniedby the Commlsslonera~ Court.

the 

### the You ask the followlugquestionr

%~@a 

### the Conmissloners~ Court a? t3Mmes 

### County,Texas,have the authorityto Issuean order to this resident ln 

### Iola,Texas,requlrlnghim to removehis plpea from the publio streetsf"
We know of no rule of lawwhloh wouldprevent County 'orState from owninga. fee simpleinterestIn streetsof Iola,Texas, Inasmuchaa the same Is uumcorporated, but for the purposeof this opinionwe are assumlngthat the public only has an easementIn the streets .umler

couslderatlon. Therefore,nothing 1s to be construedin this opinionas indicatingpermlsslon for the laying of pipesunderneaththe streetsin question shouldthe Countyor Statehave an interestin theeon. 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 conditionsupon the right to use them. Subject to rlghta of abutting owners, atreeta may be closed to all business traffic, the speed of vehicles regulated, obstructionsmay 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.lonon 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 .theright of the 

### ownerof 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 

### ownerof 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



### "Theabuttingowner 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