**‘ .,**  **-**

**OFFICE. OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

Honorable Ii.Pat Edvards civil Dlstrlot Attorne3 Dallas, Texas

or088 Sam, and ted qllestidng, ‘..

an 0plnLon h3 t irk su?xAtted qu recent request for trw four followndamn an easePent an deemednecear Of th8 COlUUiS098 of extending a road across said conneat the ssme vlth

fact that four railroad tracks

3. Can such a condemnation be had forI ar?d restricted to,pedestrian traffic onlyl
4. If a railroad canpsny should voluntarily grant a public easement over OF under its rlght-

..

# .

~~snol-.nble

R. pnt ;XIvaXls,?S.~e2

of-w3 connsct.lr~ two gubltc roads, vb:ch by the express terw of ths dedlastion 1s restricted to nedestr&3n use e, by the public 5~ ~en9r31, &nd uhlch dadlcatlon is further condditionedupon the counties construttlng and msL-,tzInniz: sam9, end thu oommlo310n9rs1 court 13 cf the 0pLnZon that such passage will be of2ublLc benei'ltand th3t a nsccsslty exists for such passaGe for pub110 convenience and safsty, can Dal.lssCounty lszslly ua9 the Road t; SrLdse ZQnd or tk;eCeneral Fund fcr tko con3tructlon and me'~tensnce of ssm9?

Prom ycsr letter dated :-fag 28, 

### 1933,wecuote the . follo*&-n;:informstion relstlve to tha cue3tLon subikttsd:

"Tha fscts are 08 follorrr: WC lsnd tobe condemned by I%~llssCotltrty 13 a Fart oi'E railroad rfghht-of.usy and road bed, Lt vLll ,tzverse four rsilrosd trecko; the scme is situsted In Callas County in n commn.nLtywhich I3not an-k- _-. coqonted city, v:lls~e or town; theenssment desked is Car the yJ.rjlooe of ccNl3c:"-r?;:

two ?rerLously dedictted end estsblL3hed ydblic roads."

An oxanins';ion of the lmm of Texss reve.tlsthzz \-othgenorsl and spec4sl lnvs 879 cvailable to th9Xll,zs i3-Q s\;thcM.tlea **named** thorein for tke 7~~093 OSacq~~lr Iq necessary property tobe wed in the sstnblL3'hm9ntand .o;enlx of public -cads znd ‘hi;;?--ey3.

T?-tle116, Chapter 2,Revked tXv!.lStzt'Jtcs,or- ~Lcles 6102 

### 6716InVernon's Annotated Civil Ststtites,a ;ensrzl lc~v,sets out on9 procedurs f9r the cond~~ztiou oi' goperty for public road j~~urpooea.Fr-oiz Mtic19 67Cz-,ve q..ote :n snrt a3 frjllovn:

,.

IionorableH. Pat i3dv3rds.Page 

### 3

Article 

### 3264et SW., V.A.C.S., thsnoet cozzmon of the ;;enerallaws on condemnation, provides undsr ArtIcls 3254a, In part, as follovs:

“The rtght of Eminent Dcmaln ishereby conferred u?on countlee of the State of Texas for the purpo,oee

of condamnlrggand acqulrqng land, right-of-vay or easement in land, private or public, except property used for cemetery purposss, where eaid land, right-of-nap or easement Is necessary in the oonstruction of jails, courthouses, hospitals, delinquent and dependent schools, poor farma; libraries, or for other o1.2~~ ~,F~nmpor~s. vh9re such purpose is nov f’nay

s autaorieed by the ConstitntAon or statutes of this state. .

“All such conckmnat~on groceedfap shsll be Instituted under the direction of the coaxz:ssionem ’court, . . . *” (Underscoring ours)~
Articles 1150 and 1149, ‘JX.C.S. provide 59t another method by which property neceassry Zor the construct:oc of public roads map -beacquired by condemnat’Lon. Fran Art:.-19 1143 v4 qUOt8 ti part a8 fcllcvsr

9Any tovn or village in this atste, incorporated under thls chaptar or by s~peclal charte:, eh611 hvc3 the K&t, **aad** thsy 3rr3 he,ze+jeapwered, to condsmn the right-of-vay and roadbed of any ra:lvay company vhose roadbed runs vlthin ths corporate l&nits of such tovn or vLllas;e,vhcn deemed necessrry and 80 declared, by amajorit; vote of the So.nrdOP Aldermen, for thepurpose of openiq, v:dealng or extending the atroeta of such tovti or villg~e; provided, there 3rd less than four rsllroad tracks. . . . .’
And Article 1150, vs quote in full .asfollovs:

“County commissioners shall have the rlsht, upon petftlon of tventy freeholdors of zng comnunLt.y,or unincorporated town or cites,to cc+9mn‘donorableIi.Pat Edwards, Page 4

road beds of railroads for the same,yrpose mentioned in the preoeeding article.

Acts 1941, 47th Leglsl.ature, Re8ular Sesoion, Chapter 458, House Bill 961, 1s a special lav enacted tocreate amore efficient road system for Dallas County, portibns of vhich speak1 law, psrtinent to this opinion, ve quote aa followsa
“sec. 6. The oommisslonars~ court in said oounty shall have the right to con&m anypro-. pert7 necessary for the openIn& widendng, or ‘malntainlag of apubllo road . . . . R

. . . .
n provided, houever, theprovisions hereof s &&llative of the present lsvs relat-. lng to condsmnatFan and the conraissioners’court may proceed under the provisions hereof or under the provisions 

### of the General Laws vith refere.?oe to the condemnation of right-of-Ysp b7 railroads orhy jury of vlow.

“sec. 24. The provisions of tUs act ars and shall be held and construed tobe cunulotive of all Goneral Laws of this state on the subject treated of snd embraced in this aotvhsn not in conflict herewith, but in case of said conflict, inwhole or inpart, this aot shall control Dallas County; . , . .”

In the light of the ststutes hersinabove enumerated, It 1s the opLnion of this department that Dallas Countymay condemn an easenent over a railroad right-of-way vben deened necessary for-the purpose of extending a regularly dedicated county road across said railroad right-of-war, in sccordance uith the condaatlon procedure set out inArtiols 6702 et seq.; InArticle 3264 et seq., V.A.C.S.; or inDallas County Special Road Lav hsrein rofsrred to as 5-e Bill 961. The provisions of these statutes confer the r<Qht of jkI.inent Doma4a on theDallas County 

### cmmlss~oners to condenn any property necessary for apublic county road purpose. Bo attempt IS therein made to linit the ccmmissloners’ gover to condemni?morable~U. pst Edvrrds, Psgo 

### 5

rzLlroad right-of-ways. That the county has the option to >rocsed under the provlsf.onsof either of these statutes Ss,ve thiuk, settled undsr the deciklon end ~3339 sst out ‘a Tarrant County vs. Shanuon, 129 Texas. 264, 104 S.W. (2d) 3, rev3rsing the Court of Civil Agpsals, 9 S.W. (2d), 934, vhLch exDressly overruled O’Keefe vs. !iudspathCounty, et al., (Tsx. Civ. App.) 25 S.W. (26) 

### 625,contsinlng exprssslors to the contrary, and wblch rul’ingwae folloved In Doughty vs. CeFee, 152 S.V. (26) at page 410. Our ansver toyour first -quest:cn is, therefore, in tineaffimstlvs.

By the provisions ofArticle 1150 and 1149,V.A. C.S., tho rlgbt of the county commlssioriersto condemu rail- :oad right-

of-vays is limited to the condemnation of rightor’-vayswhich have less than four railroad tracks. The prob13~1svhLch msy confront the comlsalonere~ court, should it elect to enter ,proceedinSa h ~ccorrlancevlth said Article3 1150 and 1149, vould not ~~13.9, If it elected toDroceed under the other ~oneral statute or syecinl law hers- set cut. Should Dallas County elect to institute condemnation -~ oroceedlws uuder its special road law, for instance, then tFl3 fact that the four railroad trackswill have tobe cpossod vi11 not interfere v?th oi- prevsnt such-a conaeanation for the reason that 

### under 329 

### speciallawanyproperty deemed xeceasary by the cocm:ns:oners r;aybe condemed for public rocd purooses. in the case of iii11County vs. D-ryant ,zadZd’r’nx~,11% Texas, at page 365, 

### theZqmme COWL hsld chat a s;?cc:Rlroad lov supersedes the general road laws vhere they oonflict with said specl31 lsv, and the corn--ts ar3 requir3d to take notLc3 of the special law. see al30 Sansss C. tsG.R.R. Co. vs. Grayson County, ,(Clv.A;p.) 5 s.W (2d) 542. 2-m ansver toyour second qu3stlon is, thersfore, in the negative.

Vith ~e;%?d toyour third q‘a38tiO?1, ve think the ;roper ansver thereto depends upon the Dover, Ifany, in the county comm:ssFonera to restrict ih3 use Of any DUblie r03O 1 “or pedestrian pu-yeses only. The ccmnissionersi court is a creature of the State Constitution, and Its powers.are 14aited 2nd controlled by ths Constitution and the laws as **gassed by**  zhe Leg)Lslature. Article 5, Section 16, Constltut:on of Texas; Baldvi~ va - Countv 68 S.U. a%; Comsiesiouersl C3urt v3. i3112~&L (54) 

### 533.Honorable H. P8t Edvards, Page4 ,,

Articles 

### 2351through 2372h, V.A.C.3 ,asarnenaod, set out the various pavers and duties of the commlssionsrs~ court end ar9 too lengthy to set out ln this opinion. Hov- ever, It should be pointed out th8t none of the abovement:oned ertioles direotlg or lndlreotly give the comalasioners’ co=-t the paver to restrict the use of any public road to psdestrlan traffic. Within oertaln constitutional 

### lisitations, the Legislature has exolusive control 

### overpublic roads and hlghvags in this State. The right to establish andbuild hlghvaps r9sts primarily with theLegislature, suchpovsr may be dslegated to some other agency as itmay determine. State vs. Hale, 

### 146S-U. (26) 731. It isnow vsll sett.ledthat pub110 roads belong to the State and that theState has full control and authority over the’same. Tl%V**is county**  **vs.** Trogden, **88** Tex. 302, 

### 319.w.358,.It is also svell established rule that the commlssfcners~ courtmay exercise only those povers speoifically design8ted by the Ccn- .etit.utionor the statute. The fact that theLegislnture hsa exclusive control over public roads and hlghvays In the State andhas not seen fit to grant the said oounty.authorlties the paver to limit or control the use of Its public county roads ccmpels us to the conclusion that the county oommissloners’ ccurt does not have the

### paver **or** authority to linlt theuse parmanently of any of its publio county roads orportiona thereof topedestri8.nuse only. Our msver toyour third qusstlon is, therefore, ln the negative.

with rega;-dtoyour fourth submitted question, the railroad company being owner of the right-of-vay inquestion could oertalnly grant a pub110 easement dressing **over** same tobe used for pedestrl8.npurposes only. Furthermore, Article 1151,V.A.C.S., places a duty on the railroad tokeep th8t portion of its road bed and right-of-vay over or across vhich anypublic street of any Incorporated village or tovnmay run Lnproper condition for the use of the traveling public. But vhether ornot the county Road and Bridge Fundmay bo used to consttict a paSS8ge ~87 to be used for pedestrian purposes onlydepends, ve think, on vhether the so-called passage vay so restricted vould come vithln the deflnltiou of 8 public road. The cost of oonstruotlon of csunty public roads andbridges Isauthorized and cxpendsble out of the county Road & BridgeZonorable II. Pat IZdvards, Pagef

Fund. Will this 

### proposedeasement restrloted topsaestrlsn use only, be It acquired by oondemnatlon ordedication, constitute in fact a part or portion of 8 public road?

Prom Bradford vs. Moseley, 

### 223S.W. 171, 173, decided by the Commlsaion ofAppeals of Texas, Seotlon B, ve quote* “What is a publio ro8d Is in ameasure dependent on the fact of each particular case, but the **charaoter of**  a road does not depend on its length, nor upon the plaoe tovhich it 198dsnor 1s its character determined by the number ofpeople vho aotually travel upon it. Decker vs. ironard (Civ. App.) 25 **S.W.** 

### 728;Elliot on RO~XIS Paragraph l-7. A roadmay be established which is a cul-de-aao Id. A road open to thepublic is a pub110 road, though one person msy bemoat benefited by it. Galveston, etc. vs.Baudat, 18 Tex. Clv. App. 595. It is a hi&way If there is a general right to use It for travel, and lf’it 1s cpen to theuse of all peopls. Elliot on Roads Paragraph l-3; Sumner, etc., vs.Uteruzbzr,, etc., 141 Term, 493, 213 S.W. 412.”

We cite also :liseouri Pac. R.R. vs. Lee, 

### 7S.W. 

### 857,70 TOX., at page 500 for a definition of 3hil8r nature,

page 

### 323,In Words 8 Phrases, Permanent Etitlon, volume 

### 35,

ve find the s0110w1ng:
“The test es towhether or not a road 1s a public road isnot simply how many people actually use it, but hov many may have a free end.unrestricted right in common to **use** it. If it is free and common to all citizens, thea, no matter whether It is or 1s **not** ofgreat length, or vhether It leads to or from a villnge, city, or hamlet, or vhethar it ismuch or little used, it Is a ‘pub110 road.’ Henlnger vs. Perry, 

### 47S.E. **1013, 1014,**  **102 Va,**  **896,** quoting Elliott Roads & Streets, paragraphs 11, 192.”

..Honorable ii.Pat Edwards, Page% i:

Andon psge 

### 322 of the same vollJmewe find the f0110v3-2-2 definition:

"A lpubllo road' 1s a vay open to all the people vlthout distinction for paasage and repassage at their pleasure, being 

### a public thoroughfare. Clv. Code Article 705. Gsllovay vs. W att Metal & Boiler Works, 181 so. 

### 187,19~a.837.”

8

In Sumner County **~8.** Interurban Transportation company, 141 Term. 493, 213 3.W. 412, as set out In 5A.L.R. 

### 765,at page 767, wherein itwas held that a Tennessee County court was yitbout authority to restrict the size and veight of vehicles which shall be used on public county roads, va find the folloolng definitlonz

“Roads belong to the public, and the county court holds them in trust for the public and while It 1s proprietor for the premises of Its .- trust, it is not proprietor in the sense that - it is tha owner of the road against the public, or anr number thereof. A public road is avag open to all the people,.vithout distinction, for passaga and repassage at their pleasure. Definition In other terms have been given, but they nean substantlall~ the same as the one just stated. The authorities make it clear that any road which isnot for the **us3** of thepeople Is not a public road; the fact that it Is for the benefit of thepublic destroy the thought that there cm be a private mershlp of the road. (Cases cited) This be5.q ths established nature of the public road, the county court vould *haveno paver to exclude any menber of the public from Its reasonable use witinoutlegislative authority.

n

. . . . “The Legislature, as the constitutional representative of the public, &q,?s the power to levy o?lyreesonable condition upon mqbers of

**I**

**. .** 

.Honorable H. Pat Edvards, Pager9

the public for th3l.ruse 

### of the public roads3 but the county court, without express authorltg,Jma not such power. It cannot take such action as proprietor, and as a county court it has .nopower to legislate. The

### mannerof its dlachargo of its trust cmea from the Leglalsture.
“It Iswell settled thst every member of the publlo has the right touse the public road in a reasonable msnner for the pranotlon of his health and happlskaa. Such USB, hovever, 1s restricted toa us3 with due care and in a reasonable manner.3

As we interpret the authorities above quoted on thadefinition of a public road, it is our opinion that thodesired restricted easement proposed tobe acquired by Dallas County for pedestrian use only would not constitute in itself 8 public road or 8part orportion of aDallas County public road. ~Thecounty Eoad and Bridge Pond balng expsndabie only for county public roads andbridges, it vould follow that this fundmay not legally be used for theconstruatlon ofany publla improvements other thanpublicroads and bridges. PurthennopB, ln theevent the construction of the desired passage 

### waywould ln fact auount tothe construction of a permanent improvement, the county 

### Caners1Fund could not legally be expended therefor, but rather the procedure lnclaent to the use of the county Perzsnent Improvement Fund would have tobe resorted to for thepayment of the coat of said permanent construction. **The** absence of faota concerning the type of structure oontanplated prevent further .dlacusalonof thismatter.

With 

### referencetoyour fourth question, we think itshould aleo be pointed out that whether ornot a rallroad company nay voluntarily grant apublic easement over Ltsright-of-way which vould involve the construction of u over-pass or an under-pass, over or under Its rlght-ofvay, depends onwhether the railroad company owns its rlghtof-vay in fee simple absolute. This department has held lnits opinion 210.~ O-1110 that although thecounty or state.,.I..

.

iIonorab1.e R. Pat Edwards, Page/O

my have a dominant easement in the road right-of-vay, the title to the land and all the profits therefrom, not inconsistent vlth and subject to the easement, remain b theqvner of the soil.

Trusting ue are that the foregoing fully answers your

Yours very truly

ATTORLI GEABRAL OF 'nims

w&TzGc?a~~

chaster lx;Olllson

AssiStant