## OIRNEPGE~~I.
OFTEXAS

Hon.FredHarris $ounty Audit,or Polk county Livingston, Texas opinion No. O-2405 Ret Highways - Pipe Lines

Dear Sir; Your request for opinion has been received and carefully considered by this department. Wequote from your letter of request as follows:

“Attached youwill find ‘acopy of a franchise, that Polk County madewith or to SKELL PIPELINE CORPORAl!ION,

in 

### 1931,which is self explanatory. With this franchise and the laws of Texas, please advise me on the following:

“Under the above authority SHELL PIPELINECODPOEUTION

laid pipe lines and erected telephone lines in Polk County, under above, etc. the roads of Polk County, then in 

### 1938balk County was called upon by the State highway Dept. to secure right-of-way for various highway constructions most of which was newly located, along the old highways, then it followed that the SEELLPIPELINBCORPORATION was called upon to lower their pipe in several places and to case said pipe at these newlocations, someof these new locations was only a few yards of the old location, but the above mentioned work was necessary.

‘“About December 1938, SHELL PIPELINECORPOBATIONpresented Polk Countywith an account, representing that this was cost on said job, Polk County Commissioners Court passed an order that samebe paid, but I refused to sign said warrant, and to date they have not received their money, however they nowdemand that this account be paid.

“1 refused to sign this warrant, because I was of the opinion that their franchise called for them to do this kind of work at their ownexpense, for the privilege of crossing, etc. our roads at their will and pleasure samebeing the only consideration that Polk County received for said franchise.. .

Hon. Fred Norris, page 2 

### (O-2405)

“Nowthe present Commissioners Court, at a recent meeting rescinded the order that their predecessors passed, ordering that this account be paid. ent court says not to pay this account.) (The pres-

“Please advise as to your opinion, as to whether Polk County owes SH&LPIPELINECORPORATION anything or not

.‘I The order of the commissiorrrs~ court, attached to your letter, reads as follows:

“ORDW

“Now, on this the 13th day of July, 

### 1931,TheBoard of County Commissioners of Polk County, Texas, having convened in regular call, pursuant to law, and it appears that the following members of said Board were present, to-wit: W.J. Tullos, County Judge, Polk County John McLeod, Commissioner, Pre. #2 Carl Bergman, Commissioner, Pre. 

### 813 Fred Handley, Commissioner, Fre. 

### #4

“And it appearing that said meeting has been in all things lawfully convened end there coming on for hearing the application of the SHELL PIPELINECORPORATION, praying for authority to use certain highways andpublic places in Polk County for the purpose of laying pipe lines in Polk County and erecting a line or lines of poles with telephone and telegraph wires thereon, and said application having been duly considered, andit appearing that the sameought to be granted. wNOW, IT IS ORDWRD,CONSIDERED ANDADJUDGED,

that said SHELL PIPELINECORPORATION, its successors and assigns are granted authority to use the highways andpublic places of the County of Polk, State of Texas, andto lay thereon, through, over, under and across the said highways andpublic places in said County, pipes and pipe lines for the transportation of oil, petroleum and/or any of its products, gas, water, refined oil andother substances and/or any thereof, with the right to construct, reconstruct, replace,Hon. Fred Norris, page 

### 3 (O-.+5)

renew, maintain, repair, operate change the size of, andremove said pipes andpipe lines.

“There is also granted the said Shell Pipe Line Corpor,ation, its successors or assigns, the right to erect and maintain, through, under and,across said highways andpublic places of the County of Polk State of Texas, a line or line of.poles, with teiephone andtelegraph..wires thereon and also the right to lay adjacent to andparallel with the first pipe line or lines other pipe lines; and the said grantee, its successors’and assigns, is granted the right of ingress and egress to and from sald lines or any of them, for the’purposes of construction, inspection, repairing, renewing, operating, changing the size of, or removing the same, ,together with the right of removal of such, in whole or finpart; said grantee, its successors or assigns to select the route,of such lines. Erovided. all DiDe-

“Done by the Board of County Commissioners of Polk County, Texas this 13th day of July, 

### 1931.

“ATTEs!rr I glex Chairmanof the Bbard. 

## UEAL) Filed July 

### 13th;1931 ty, Texas.” &ticle 

### 1497,Vernon’s Texas Annotated Civil Statutes, reads as follows:

“Such ‘corporation shall ,have the right andpower to enter upon, condemnandappropriate the lands, right of way, easements andproperty of any person or corporation. Such c~orporation shall have the right to lay its pipes andpipe lines across andunder any public road or highway or underany railroad, railroad right of way, street railroad, canal or stream in this State, andto lay its pipes and.pipe lines across or along andunder any street or alley in any incorporated city or town in this State with the consent ‘andunder the direction of the governing body of such city or town. gooioe l&azi 1 be lwallel with a&3on anv ac h&g&&y,Hon. Fred Norris, page 4 (O-2405)

thereof. exceot with the waooroval andunder the tion of ’ the c-s court of the county in whic&

der any cemetery, church or college, school house, residence business, or storehouse, or through or under any building in this State, except by the consent of the owner or owners thereof. All such pipes andpipe lines, when sameshall pass through or over the cultivated or improved lands of another, shall be well buried under ground at least twenty inches under the surface, and such surface shall be properly and promptly restored by such corporation unless otherwise consented to by the owners of such land. Whensuch pipes andpipe lines shall be laid over or along any uncultivated or unimproved lands of another, and such lands shall thereafter become cultivated or improved, such pipes or pipe lines shall be buried by’said corporation as herein provided for cultivated lands, within a reasonable time after notice by the owner of such lands corporation or any agent thereof.?’ or his agent, to said (Underscoring ours) Article 6022, Vernon’s Texas Annotated Civil Statutes, reads as followss

“Every person, firm, corporation, limited partner-.. ship, joint stock association, or association of anykind whatsoever owning, operating or managing any pipe line, or anypart of any pipe line within this State for the transportation of crude petroleum that is declared by this title to be a commoncarrier, shall have the right ~--and-power offeminent domain in the exercise of which he, it or they mayenter upon andcondemnthe lands, rights of way, easements andproperty of any person or corporation necessary for the construction, maintenance or operation of his, its or their commoncarrier pipe line; and shall have the right to lay his, its or their pipes or pipe lines under any railroad, railroad right of way, street railroad canal or stream in this State; and along andunder any street railroad, ,canal or stream’ in this State; and’.along ,andunder any street or alley,& any incorporated city or town in this State with the consent andunder the direction of the governlng body: of- such city or town; andacross andunder anypublic road,. provided that, no pipes or pipe lines shall be laid parallel with and on any public highway closer than fifteen feet from the improved section,

:

Hon. Fred Norris, page 

## 5 (O-2405)

thereof except with the approval andunder the direction of the commissioners court of the county in,which such publichighway is ,located; and such other rights in the matter of laying pipes andpipe lines as are conferred by Article 

### 1497,~subjec,t to the conditions, limitations and restrictions therein stated.@ Article 6021, Vernon’s Texas Annotated Civil Statutes, - we reads as rollowa5

“The right to run pipe Sines, telegraph andtelephone lines along, across or over anypublic road or highway can only be exercised upon condition thatthe traffic thereon be not interfered with, andthat such road or highway be promptly restored to its former condition of usefulness, andthe restoration thereof to be subject also to the supervision of the commissioners court or other proper local authority. In the exercise of the privileges herein conferred, such pipe lines shall compensate the county or road district, to such public road. respectively, for anydamagedone Nothing herein shall be construed to grant any pipe line companythe right to use any public street or alley of any incorporated or unincorporated city or town, except by express permission from the governing body thereof .I1 Commissioners1 courts are courts of limited jurisdiction, in that their authority extends only to matters pertaining to the general welfare of their respective counties andthat their powers are only those expressly or impliedly conferred upon themby law, that is, by the Constitution and statutes of the State. Jurisprudence, pages 564-5. 11 Texas

The license granted by the county to the pipe line company shownabove is subordinate to the paramount right of the county to construct, alter, repair andmaintain the roads of the county. Thelaw.requires that the pipes andpipe lines be so buried andcovered as not to interfere with the use and occupancy of roads andhighways. c&t. 

### 1497) Thecoverlng andburying of pipe lines to proper depths so as not to interfere with roads and highways is a legal duty of the pipe line company; it follows that the expense of such compliance is anexpense chargeable to the pipe line company. Neither the law nor the license granted would makethe county liable for such expense.

You are therefore respectfully advised that it is the opinion of this department under the facts stated in your letter,Hon. Fred Norris, page 6 (O-24O5)

that the commissioners' court of Polk County, Texas, has no authority to pay the claim described in your letter. Yours very truly A!l'TORNmGENERAL

OFTEXAS By/s/ Wm.J. Fanning Wm.J. Fanning, Assistant APPROVED

J-m 8, 1940 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAS APPROVED:

OPINIONCOMMITTEE BY: BWB,CHAIRMAN WJF:AW:wb