ORNEY GENERAL 

OPTE~AS 

Grover Sellers 

Hon. D. C. Greer 

State Highway Engineer 

Texas Highway Department 

Austin 26, Texas 

Opinion No. O-5910 

Rer Does the F.W, & D.C. Railway 

Company and the City of Memphis, 

Texas, have authority to make the 

exchange of property herein stated? 

Dear Sir: 

We are in receipt 

ion from this department on 

of your recent request for an opinthe following state of facts: 

"The F.W. & D,C, Railway Company has a 200 foot right 

of way through the city of Memphis. The city has constructed a street 40 foot wide on each side of and parallel to the railway right of way. The proper location for 

highway U. S, 287 is onthe 40 foot street, on the west 

side of the railway right of way, however, it will be necessary that a minimum right of way of 70 feet be secured, 

There are many buildings and other improvements on the 

west side of the street which would have to be moved in 

order to widen the present 40 foot street to the west, 

however, it may be that the railway officials would be 

willing to give to the State or the city of Memphis an 

easement on 30 feet off the west side of their 2C0 foot 

right of way in exchange for 30 feet to be added to the 

east side of their right of way. This, of course, would 

include 30 feet of the present 40 foot city street on the 

east of the railway right of way leaving only SO feet of 

the original 40 feet, In as much as there is very lit.tle 

improvement on the east side of the railway the city of 

Memphis may acquire an additional 30 feet of right of way 

adjoining the east line of the present city street on the 

east side of the railway thus restoring ,the street to the 

original width of 40 feet, 

"Before presenting this plan to the officials of the 

railway company and the city of Memphis will you please 

advise us if the railway company and the city of Memphis 

have authority to make the exchange hereinabove outlined. 

A rough pencil sketch is attached hereto for your further 

information.V8 

The facts in this request are insufficient, in that 

it is not stated whether the railroad owns the right-of-way in 

fee simple or merely has an easement over same0 We wil~l 
Hon. D. C. Greer, page 2 CO-59lP) 

endeavor to treat this matter under both assumptions. 

At the very outset of this opinion we wish to make 

it clear that if the right-of-way of the railroad company is 

an interest less than fee simple, it must be condemned for 

highway or street purposes. 

16 Texas Jurisurudence. nase 681. provides as follows: 

"Hut'it is a fundamental proposition of eminent domain that land that has been condemned for one use may not 

be permanently used for another and different one." 

In the case of O'Neal v. City of Sherman, 14 S.W. 319 

plaintiff executed a deed to the city conveying a piece of 

property for street purposes only, and the city in turn delivered the land to a company that had a contract to drill a water 

well for the city. The Supreme Court held that the city could 

not appropriate such land for the purpose of maintaining waterworks. See also Muhle v. N.Y. Tex.Mex. R.R., 25 S.W. 607. 

Now if the railroad company owns the property in fee 

simple, the railroad company has a right to convey same in fee 

simple or any lesser estate to the city. 

A title 

f 

6341, Vernon's Annotated Civil Statutes, provides as fo lows: 

"Railroad corporations shall have the following other 

rights: 

"6 o To purchase, hold and use all such real estate 

and other property as may be necessary for the construction and use of its railway, stations and other accommodations necessary to accomplish the objects of its incorporation, and to convey the same when no longer required 

for the use of such railway. 

"7. To take, hold and use such voluntary grants of 

real estate and other property as shall be made to it in 

aid of the construction and use of its railway, and to 

convey the same when no longer required for the uses of 

such railway, in any manner not incompatible with the 

terms of the original grant." 

30 Texas Jurisprudence, 354, states that cities have 

the authority to buy and sell property, said authority being 

granted by the following Articles of Vernon's Annotated Civil 

Statutes: 
Hon. D. C. Greer, page 3 (O-5910) 

- 

4 states that after the city has complied 

with the incorpora on statutes it shall: 

e* * + have the power to sue and be sued, plead and 

be impleaded, and to hold and dispose of real and personal 

property provided such real property is situated within 

the limik of the corporation.f' 

Article 962: 

tlAll the inhabitants of each city, town or village so 

accepting the provisions of this title shall continue to 

be a body corporate *** and in all matters whatever, may 

take, hold and purchase, lease, grant and convey such real 

and personal or mixed property or estate as the purposes 

of the corporation may require, within or without the limits thereof; ***'l 

The following Articles of Vernon's Annotated C;viP 

Statutes,specifically provide that the city has the right to 

condemn property of railroads: 

brticle 1149: 

"Any town or village in this State, incorporated under this Chapter or by special charter, shall have the 

right, and they are hereby empowered, to condemn the 

right of way and roadbed of any railway companywhose roadbed runs within the corporate limits of such town or vilIage, when deemed necessary and so declared, by a majority 

vote of the board of aldermen., for the purpose of opening, 

widening, or extending the streets of such town or village; 

***If 

Article 1150: 

llCounty commissioners shall have the right, upon petftfon of twenty freeholders of any community, or unfncorporated town or city, to condemn roadbed of railroads for 

the same purpose mentioned in the preceding article." 

It is therefore our opinion that the city has the 

right to condemn the property of the railroad for highway or 

street purposes. Assuming that the railroad merely has an easement, it would be advisable to make the original grantors parties to such condemnation proceeding, 

Assuming that the railroad company owns the right-ofway in fee simple, the city has a right to the west 40 feet of 
Hon. D. C. Greer, page 4 (o-5910) 

same for highway purposes; but we are unable to find any authority that would permit the city giving the railroad company 

the exclusive use of the 30 feet on the east of said railroad 

right-of-way which has been dedicated as a public street. 

Trusting this answers your inquiry, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ W. P. Watts 

W. P. Watts, Assistant 

APPROvED MAY 4, 1944 

/s/ Geo. P. Blackburn 

(Acting) ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: OS, CHAIRMAN 

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