March 6, 1961

Mr. Ellis A. Oualline,Jr. County Attorneyof MontgomeryCounty Conroe, Texas OpinionNo. W-1004

Dear Re:

Mr. Oualline: Your request fork

an opinion is “The Commissioner ‘8 Court Whether Commissioners'

Court may require gas pipe line company to move or lower its pipe lines which are now in, along, or across a new right of way location to be purchased for a prospectivefarm-tomarket road. in the following language: of MontgomeryCounty goes beyond your nas requested Informationthat opinion No. W’tf-961. They are purchasingright-ofway on which the State of Texas will constructa farm-to-market

road,
.a 'May the Commlsslonerts Court of Montgomery County require gas pipe line companiesto move or lower their pipe lines along or across this rightof-way for the proposed road without paying them compensation

therefor?" Our holding in OpinionNo. w&961, to which you refer, is reflected in the "Summary" thereof,which we quote: "The Commissioners' Court of Sherman~County, Texas, is authorizedto requiregas pipeline companies,whose lines run along or acrosspublic roads which are to be paved, to move or lower such pipelines at their own expense and without reimbursement from the State. That opinionpertains to a pipe line which had been laid in an existing street. Our conclusions were based upon State v. City of Austin, Tex. -, 331 S.W.2d 737 (w6o),Mr. Ellis A
. . Oualline,Jr., page 2 '(W-ldO4)

which in turn is predicatedupon Section 1 of Article 1436b, V.C.S. We quote the applicable portions of that statute: "Section1. Any person, firm or corporation or incorporatedcity or town engaged in the business of transporting

or disbrlbutlng

gas for public consumptionshall have the power to lay and maintain pipes, mains, conductorsand other facilitiesused for conductinggas through,under, along, across and over all public highways,public roads, public streets and alleys, and public waters within this State; provided that within the corporate limlts of an incorporatedcity or Incorporated town such right shall be dependentupon the consent and subJect to the directionof Its governing body.,.
. . The public agency having jurisdiction or control of a highway or county road, that Is, the Highway Commissionor the Commissioners Court, as the case may be, may require any such p'erson, firm or corporation or Incorporatedcity or town at its own expense to relocate ,its

pipes, mains, conductorsor other fixtures for conductinggas on a state highway or county road outside the limits of an Incorporated city or incorporatedtown so as to permit the wldenlng or changingof traffic lanes.
. . On (Enighasis Added) It is thus seen that pipe line companiesmay lay their pipe lines in existinghighways , roads, streets,etc,> but, in turn, may be requiredby the governing authorltyto relocate them so as to permit the widening or changingof traffic lanes. A differentsituationexists In your case. Your letter to the AttorneyGeneral dated February 4, 1961, supplementing information~

in your opinion request,makes lt plain that the proposed farm-to-market road is on new locationand that the pipe line in question is on private property. This being true, there is no statute or law by which the pipe line company can be required to move or lower Its pipe lines. Doubtlessthis pipe line lies within an easement securedby the company from the owner of the land. Section 17 of Article I of the Constitution of Texas states: "No person'sproperty shall be taken, damaged or destroyedfor or applied to public use without adequate compensation being made, unless by the consent of such person."Mr. Ellis A. Oualline,Jr., Page 3 (WIG1004).

If by negotiation

your Commissioners1 Court cannotpersuade the company to move this pipe line you will have to pay it therefor. If a price cannotbe agreedupon you will have to condemn the easement,of which the pipe line Is a part. If the Commissioners1 Court cannot agreewith the owner of the fee on the value of the land thcna condemnation suit should be brought jointlynaming both the fee owner and the pipe line company as condemnees. In answer to your question,therefore,it is our opinion, and we so hold, that the Commissioners' Court of Montgomery County may not require a pipe line company to move or lower its pipe lines from the private premisesupon which a future road is contemplated.

SUMMARY

The Commissioners1 Court may not require a gas pipe line company to move or lower Its pipe lines which are now in, along, or across a new right of way locationbeing acquired for a proposed farm-to-market road. hi ~..' ~Yoursvery truly, WILL WILSON AttorneyGeneral of Texas

wRs:vj APPRCVED: OPINION COMMITTEE W. V. Geppert, Chairman
Jerry Roberts Riley Eugene Fletcher Thomas Burros

REVIEWED FOR TRE ATTORNEYGENERAL By: Morgan Nesbltt