THEATTORNEY GENERAL 

OF TEXAS 

March 14, 1961 

Honorable Q. F. Steger Opinion No. WW-1017 

County Attorney 

Colorado County Re: Whether property already 

Columbus, Texas appropriated to one public 

use can be taken under 

eminent domain laws for 

another public us@ in the 

absence of a showing that 

the purpose of the taking 

can be aocompllehed in no 

Dear Mr. Steger: other practical manner. 

You state in your opinion request that Colorado County 

1s contemplating the condemnation of a lengthwise portion 

of railroad spur right of way located In an unpopulated area 

of the county for the purpose of building a aounty road. As 

we understand the facts the county seeks to aoqulre that portion of railroad right of way from the intersectlon of the 

tracks and Farm-to-Market Road No. 950 in a aoutherly direction for almost a distance of one-half mile. 

Prior to the consideration of condemnation the county 

offered to purchase the needed right of way from the railway 

company, which 1s not presently in use by the railroad. Sub - 

sequently, the company declined to sell stating that such 

segment of the railroad would be needed In the future. 

In,,your opinion request your conclusl$n Is that the right 

of way has not been abandoned . . . and you have asked the folio&g question: 

“Can property already appropriated to one 

public use be taken under applicable laws of 

eminent domain for another public use In the 

absence of a showing that the purpose of the 

taking can be accomplished in no other practical manner?” 

It is stated In Snellen v. Brazoria County, 224 S.W.2d 

305 (Civ. App., 1949, error ref. n.r.e.) that: 
Honorable G. F. Steger, Page 2 (ww-1017) 

as a general rule, property appropriated to-the public purpose cannot be taken 

for another public use without express or lmplied legislative authority when such taking 

results in practical destruction of the prior 

use unless the subsequent taking is for a 

public purpose of greater or paramount lmportante which cannot be accomplished in any other 

practical way." (Emphasis added) 

This rule was originally stated in Sabine & E. T. Ry. 

Co. V. Gulf & I. Ry. Co. of Texas, 92 Tex. 162, 46 S.W. 784 

8). 

There 1s no applicable statute conferring the specific 

authority needed by the county to condemn the desired portion 

of railroad right of way. In the absence of such authority, 

to sustain a subsequent taking under a general power, there 

must be a showing of paramount importance or purpose and that 

the power can be exercised In no other practical way, We 

accordingly answer your question in the negative. 

SUMMARY 

In absence of legislative authority, property 

appropriated to a public purpose cannot be 

taken for another public use when such taking 

will destroy or materially impair the prior use 

unless the subsequent taking is for a paramount 

public importance which cannot be accomplished 

In any other practical way. 

WHPjr:mm 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

Edward A. Cazares 

John C. Phillips 

John Leonarz 

Dudley McCalla 

REVEIWED FOR THE ATTORNEY GENERAL 

BY: Morgan Nesbitt