# THE AITORNEY GENEWAL ~FTExAs

The Honorable B. L. DeBerry Texas Highway Department 11thand Braeos Austin, Texas 78701 Dear Mr. DeBerry: Opinion No. H- 113 Re: The status of signboards

as realty or personalty for condemnation purposes.
You have requested our opinion on the following question:

“In our condemnation proceeding, should signboards which are interred inthe ground on the property of the landowner, lessor, be treated the same as any other realty such as fences, etc., or should such signboards be treated as personalty because ofthe special terms oftheplease agreements between the landowner and the lessee,
. . . .‘I Your question is prompted by the rule oflaw that, under normal circumstances, personalty, because of its removable character is not included in determining compensation for condemnation purposes. The sample “leases” attached to your letter provide in one way or another that “all signs and improvements placed onthe above mentioned property pursuant to this lease are now and forever the exclusive property ofthe lessee and may be removed by them at any time. ” This “lease” provision would indicate that between the parties the signs are considered personalty. Whether the agreements are actually “leases, ” or only licenses, generally, ifthe signs were erected and interred inthe ground, they would b,econsidered realty for condemnation purposes. InTexas, the character of ,property as realty or personalty, for condemnation proceedings, is not affected by any private agreement designating its character. Texas Pig Stands v.

p. 545The Honorable Mr. B. L. DeBerry, page 2 (H-113)
Krueger, 441 S.W. 2d 940 (Tex. Civ. App., SanAntonio, 1969, err. ref., n.r. e.); Brasos River Conservation and Reclamation District v. Adkisson, 173S.W. 2d 294 (Tex. Civ. App. , Eastland, 1943, err. ref). IntheAdkisson case, the question presented was: “Did the Court properly require the district to pay appellee for the property taken, including casing and other fixtures affixed to the leasehold estate, where the lease, producing wells, and such equipment were inundated by waters ofthe district’s reservoir, even though as between the Appellee as Lessee and the original landowners as Lessors, Appellee had the privilege of removing such fixtures at the termination ofthelease?” (emphasis added) The Court answered inthe affirmative because ofthe rule applied in condemnation cases and approved the following statement: ”
. . . Where fixtures are of such a character that ifput inby the owner, they would constitute apart ofthe real estate, they must be paidfor as ‘real estate’ by the party condemning the land. ” Accordingly, in condemnation proceedings, indetermining whether signboards which are interred inthe ground constitute realty or personalty, they should be treated as though they were owned and had been erected by the landowner, notwithstanding private agreements aboutthe matter. SUMMARY Incondemnation proceedings signboards which are interred inthe ground should be treated as though they were owned and had been erected by the landowner inorder to determine whether they constitute personalty or realty, notwithstanding private agreements about the matter.

Attorney General ofTexas

p. 546The Honorable B. L. DeBerry. page 3 (H-113)

DAVID M. KENDALL, Chairman Opinion Committee

p. 547