ORNEY GENERAL
OPTE~AS

Grover Sellers



### Hon.D. C. Greer StateHighway Engineer Texas Highway Department Austin 26, Texas OpinionNo. O-5910 Rer Does the F.W, & D.C. Railway Company and the City of Memphis, Texas, have authority tomake the exchange of propertyherein 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 Companyhas a 200 foot right of way through the city of Memphis. The cityhas constructeda street 40 foot wide on each side of and parallel to the railway right ofway. The proper location for highway U. S, 287 is onthe 40 foot street, on thewest side of the railway right of way, however, it will be necessary that a minimum right ofway of 70 feet be secured, There are many buildingsand other improvementson the west side of the streetwhich would have to be moved in order to widen the present 40 foot street to thewest, however, it may be that the railway officialswould be willing to give to the State or the city of Memphis an easement on 30 feet off thewest 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 Memphismay 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 ,thestreet to the originalwidth of 40 feet, "Beforepresenting this plan to the officials of the railway companyand the city of Memphiswill you please advise us if the railway company and the city of Memphis have authority tomake the exchangehereinabove outlined. A rough pencil sketch is attachedhereto for your further information.V8 The facts in this request are insufficient, in that it is not statedwhether the railroad owns the right-of-way in fee simple or merely has an easement over same0 We wil~lHon. D. C. Greer, page 2 

### CO-59lP)

endeavor to treat thismatter under both assumptions.

At the very outset of this opinionwe 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 streetpurposes.



### 16 Texas Jurisurudence.nase 

### 681.providesas follows: "Hut'it is a fundamentalpropositionof eminentdomain that land thathas been condemned for one use may not be permanentlyused 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 conveyinga piece of property for streetpurposes only, and the city in turndelivered the land to a company that had a contract to drill a water well for the city. The Supreme Courtheld that the city could not appropriate such land for the purpose of maintainingwaterworks. See also Muhlev. N.Y. Tex.Mex.R.R., 25 S.W. 607.

Now if the railroad companyowns the property in fee simple, the railroad companyhas 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 shallhave the following other rights:



### "6 o To purchase,hold and use all such real estate and other propertyas may be necessary for the construction and use of its railway, stationsand other accommodationsnecessary to accomplish the objects of its incorporation, and to convey the samewhen no longer required for the use of such railway. 

### "7. To take,hold and use suchvoluntary grants of real estate and other property as shall be made to it in aid of the constructionand use of its railway, and to convey the samewhen no longer required for the uses of such railway, in any manner not incompatiblewith the terms of the original grant." 

### 30 Texas Jurisprudence,

### 354, states that citieshave the authority to buy and sellproperty, said authority being grantedby the followingArticles of Vernon'sAnnotated Civil Statutes:Hon. D. C. Greer, page 3 

### (O-5910)

- 4 states that after the cityhas complied with the incorpora on statutes it shall:

e* * + have the power to sueand be sued,plead and be impleaded, and to hold and dispose of real and personal property provided such real property is situatedwithin 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 matterswhatever,may take, hold and purchase, lease, grant and convey such real and personal or mixed property or estate as the purposes of the corporationmay require,within or without the limits thereof; ***'l The followingArticles of Vernon'sAnnotated C;viP Statutes,specificallyprovide that the cityhas the right to condemnproperty of railroads:

brticle 1149: "Any town or village in this State, incorporatedunder this Chapter or by special charter, shallhave 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 streetsof such town or village; ***If Article 1150: llCounty

commissioners shallhave the right,upon petftfon of twenty freeholders of any community, or unfncorporated town or city, to condemnroadbed of railroads for the samepurposementioned in the preceding article."
It is thereforeour opinion that the cityhas the right to condemn the property of the railroad for highway or streetpurposes. Assuming that the railroadmerely has an easement, itwould be advisable to make the original grantorsparties to such condemnationproceeding,

Assuming that the railroad company owns the right-ofway in fee simple, the cityhas a right to thewest 40 feet ofHon. D. C. Greer, page 4 (o-5910)

same for highway purposes;but we are unable to find any authority thatwould permit the city giving the railroad company the exclusiveuse of the 

### 30 feet on the east of said railroad right-of-waywhich 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 WFW:EP:wb