March 6, 1961 

Mr. Ellis A. Oualline, Jr. 

County Attorney of Montgomery County 

Conroe, Texas 

Opinion No. 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 

prospective farm-tomarket road. 

in the following language: 

of Montgomery County 

nas requested Information that goes beyond your 

opinion No. W’tf-961. They are purchasing right-ofway on which the State of Texas will construct a 

farm-to-market road, 

.a 'May the Commlsslonerts Court of Montgomery 

County require gas pipe line companies to move or 

lower their pipe lines along or across this rightof-way for the proposed road without paying them 

compensation therefor?" 

Our holding in Opinion No. w&961, to which you refer, 

is reflected in the "Summary" thereof, which we quote: 

"The Commissioners' Court of Sherman ~County, 

Texas, is authorized to require gas pipeline companies, whose lines run along or across public 

roads which are to be paved, to move or lower such 

pipelines at their own expense and without reimbursement from the State. 

That opinion pertains 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 predicated upon Section 1 of Article 1436b, 

V.C.S. We quote the applicable portions of that statute: 

"Section 1. Any person, firm or corporation 

or incorporated city or town engaged in the business 

of transporting or disbrlbutlng gas for public consumption shall have the power to lay and maintain 

pipes, mains, conductors and other facilities used 

for conducting gas 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 incorporated city or Incorporated town such 

right shall be dependent upon the consent and subJect to the direction of Its governing body.,. . . 

The public agency having jurisdiction or control of 

a highway or county road, that Is, the Highway 

Commission or the Commissioners Court, as the case 

may be, may require any such p'erson, firm or corporation or Incorporated city or town at its own expense 

to relocate ,its pipes, mains, conductors or other 

fixtures for conducting gas on a state highway or 

county road outside the limits of an Incorporated 

city or incorporated town so as to permit the wldenlng or changing of traffic lanes. . . On (Enighasis Added) 

It is thus seen that pipe line companies may lay their 

pipe lines in existing highways , roads, streets, etc,> but, 

in turn, may be required by the governing authorlty to relocate 

them so as to permit the widening or changing of traffic lanes. 

A different situation exists In your case. Your letter 

to the Attorney General dated February 4, 1961, supplementing 

information~ in your opinion request, makes lt plain that the 

proposed farm-to-market road is on new location and 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. Doubtless this 

pipe line lies within an easement secured by the company from 

the owner of the land. 

Section 17 of Article I of the Constitution of Texas 

states: 

"No person's property shall be taken, damaged 

or destroyed for 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 cannot persuade the company to move this pipe line you will have to pay 

it therefor. If a price cannot be agreed upon you will have 

to condemn the easement, of which the pipe line Is a part. 

If the Commissioners1 Court cannot agree with the owner of the 

fee on the value of the land thcna condemnation suit should 

be brought jointly naming 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 premises upon 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 ~..' 

~Yours very truly, 

WILL WILSON 

Attorney General of Texas 

wRs:vj 

APPRCVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Jerry Roberts 

Riley Eugene Fletcher 

Thomas Burros 

REVIEWED FOR TRE ATTORNEY GENERAL 

By: Morgan Nesbltt