‘., - 

OFFICE. OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Ii. Pat Edvards 

civil Dls trlot At torne3 

Dallas, Texas 

or088 Sam, and 

ted qllestidng, 

‘.. 

an 0plnLon h3 t 

irk su?xAtted qu 

recent request for 

trw four followndamn an easePent 

an deemed necear 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.~e 2 

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 condditioned upon the counties construttlng and msL-,tzInniz: 

sam9, end thu oommlo310n9rs1 court 13 cf the 

0pLnZon that such passage will be of 2ublLc 

benei'lt and th3t a nsccsslty exists for such 

passaGe for pub110 convenience and safsty, can 

Dal.lss County lszslly ua9 the Road t; SrLdse 

ZQnd or tk;e Ceneral Fund fcr tko con3tructlon 

and me'~tensnce of ssm9? 

Prom ycsr letter dated :-fag 28, 1933, we cuote the . 

follo*&-n;: informs tion relstlve to tha cue3tLon subikttsd: 

"Tha fscts are 08 follorrr: WC lsnd to be 

condemned by I%~llss Cotltrty 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.nLty which I3 not an-k- _-. 

coqonted city, v:lls~e or town; the enssment 

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.tls thzz 

\-oth genorsl and spec4sl lnvs 879 cvailable to th9 Xll,zs 

i3-Q s\;thcM.tlea named thorein for tke 7~~093 OS acq~~lr 

Iq necessary property to be wed in the sstnblL3'hm9nt and 

.o;enlx of public -cads znd ‘hi;;?--ey3. 

T?-tle 116, Chapter 2, Revked tXv!.l Stzt'Jtcs, or- 

~Lcles 6102 6716 In Vernon'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: 

, 
. 

Iionorable H. Pat i3dv3rds. Page 3 

Article 3264 et SW., V.A.C.S., ths noet cozzmon 

of the ;;eneral laws on condemnation, provides undsr ArtIcls 

3254a, In part, as follovs: 

“The rtght of Eminent Dcmaln is hereby conferred u?on countlee of the State of Texas for 

the purpo,oee of condamnlrgg and 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, ‘J X.C.S. provide 59t another 

method by which property neceassry Zor the construct:oc of 

public roads map -be acquired 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+j eapwered, 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 a majorit; 

vote of the So.nrd OP Aldermen, for the purpose 

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 .as follovs: 

“County commissioners shall have the rlsht, 

upon petftlon of tventy freeholdors of zng comnunLt.y, or unincorporated town or cites, to cc+9mn 
‘donorable Ii. 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 to create 

a more efficient road system for Dallas County, portibns of 

vhich speak1 law, psrtinent to this opinion, ve quote aa 

follows a 

“sec. 6. The oommisslonars~ court in said 

oounty shall have the right to con&m any pro-. 

pert7 necessary for the openIn& widendng, or 

‘malntainlag of a publlo road . . . . 

R 

. . . . 

n provided, houever, the provisions 

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 or hy jury of vlow. 

“sec. 24. The provisions of tUs act ars 

and shall be held and construed to be cunulotive 

of all Goneral Laws of this state on the subject 

treated of snd embraced in this aot vhsn not in 

conflict herewith, but in case of said conflict, 

in whole or in part, this aot shall control 

Dallas County; . , . .” 

In the light of the ststutes hersinabove enumerated, 

It 1s the opLnion of this department that Dallas County may 

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 in Artiols 6702 et 

seq.; In Article 3264 et seq., V.A.C.S.; or in Dallas 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 the Dallas County cmmlss~oners to condenn any property necessary for a public county road purpose. Bo attempt 

IS therein made to linit the ccmmissloners’ gover to condemn 
i?morable~ U. pst Edvrrds, Psgo 5 

rzLlroad right-of-ways. That the county has the option to 

>rocsed under the provlsf.ons of 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. !iudspath County, et 

al., (Tsx. Civ. App.) 25 S.W. (26) 625, contsinlng exprssslors to the contrary, and wblch rul’ing wae folloved In 

Doughty vs. CeFee, 152 S.V. (26) at page 410. Our ansver 

to your first -quest:cn is, therefore, in tine affimstlvs. 

By the provisions of Article 1150 and 1149, V .A. 

C.S., tho rlgbt of the county commlssioriers to condemu rail- 

:oad right - of-vays is limited to the condemnation of rightor’-vays which have less than four railroad tracks. The prob13~1s vhLch msy confront the comlsalonere~ court, should it 

elect to enter ,proceedinSa h ~ccorrlance vlth said Article3 

1150 and 1149, vould not ~~13.9, If it elected to Droceed 

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 tracks will have to be 

cpossod vi11 not interfere v?th oi- prevsnt such- a conaeanation for the reason that under 329 special law any property 

deemed xeceasary by the cocm:ns:oners r;ay be condemed for 

public rocd purooses. in the case of iii11 County vs. D-ryant 

,zad Zd’r’nx~, 11% Texas, at page 365, the Zqmme COWL hsld 

chat a s;?cc:Rl road 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. ts G.R.R. Co. vs. Grayson County, ,(Clv. A;p.) 5 

s.W (2d) 542. 2-m ansver to your second qu3stlon is, thersfore, in the negative. 

Vith ~e;%?d to your third q‘a38tiO?1, ve think the 

;roper ansver thereto depends upon the Dover, If any, 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, Page 4 ,, 

Articles 2351 through 2372h, V.A.C.3 , as arnenaod, 

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 above ment: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 lisitat ions, the Legislature has exolusive control over public 

roads and hlghvags in this State. The right to establish 

and build hlghvaps r9sts primarily with the Legislature, 

such povsr may be dslegated to some other agency as it may 

determine. State vs. Hale, 146 S-U. (26) 731. It is now 

vsll sett.led that pub110 roads belong to the State and that 

the State has full control and authority over the’ same. Tl%Vis county vs. Trogden, 88 Tex. 302, 31 9.w. 358,. It is also 

s vell established rule that the commlssfcners~ court may exercise only those povers speoifically design8ted by the Ccn- 

.etit.ution or the statute. The fact that the Legislnture hsa 

exclusive control over public roads and hlghvays In the State 

and has 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 the use 

parmanently of any of its publio county roads or portiona 

thereof to pedestri8.n use only. Our msver to your third 

qusstlon is, therefore, ln the negative. 

with rega;-d to your fourth submitted question, the 

railroad company being owner of the right-of-vay in question 

could oertalnly grant a pub110 easement dressing over same 

to be used for pedestrl8.n purposes only. Furthermore, Article 

1151, V.A.C.S., places a duty on the railroad to keep th8t 

portion of its road bed and right-of-vay over or across vhich 

any public street of any Incorporated village or tovn may run 

Ln proper condition for the use of the traveling public. But 

vhether or not the county Road and Bridge Fund may bo used to 

consttict a paSS8ge ~87 to be used for pedestrian purposes only depends, 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 and bridges 

Is authorized and cxpendsble out of the county Road & Bridge 
Zonorable II. Pat IZdvards, Page f 

Fund. Will this proposed easement restrloted to psaestrlsn 

use only, be It acquired by oondemnatlon or dedication, constitute in fact a part or portion of 8 public road? 

Prom Bradford vs. Moseley, 223 S.W. 171, 173, decided by the Commlsaion of Appeals of Texas, Seotlon B, ve 

quote * 

“What is a publio ro8d Is in a measure dependent on the fact of each particular case, but 

the charaoter of a road does not depend on its 

length, nor upon the plaoe to vhich it 198ds nor 

1s its character determined by the number of people vho aotually travel upon it. Decker vs. ironard (Civ. App.) 25 S.W. 728; Elliot on RO~XIS 

Paragraph l-7. A road may be established which 

is a cul-de-aao Id. A road open to the public 

is a pub110 road, though one person msy be moat 

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 the use 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, 7 S.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 to whether or not a road 1s 

a public road is not 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 of great 

length, or vhether It leads to or from a villnge, city, or hamlet, or vhethar it is much 

or little used, it Is a ‘pub110 road.’ Henlnger vs. Perry, 47 S.E. 1013, 1014, 102 Va, 896, 

quoting Elliott Roads & Streets, paragraphs 11, 

192.” 

. . 
Honorable ii. Pat Edwards, Page 

% i: 

And on psge 322 of the same vollJme we 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, 1 8 9 ~a. 837.” 

In Sumner County ~8. Interurban Transportation 

company, 141 Term. 493, 213 3.W. 412, as set out In 5 A.L.R. 

765, at page 767, wherein it was 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 a vag 

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 is not for the us3 of the people 

Is not a public road; the fact that it Is for 

the benefit of the public 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 *have no paver to exclude any menber of 

the public from Its reasonable use witinout legislative authority. 

n 

. . . . 

“The Legislature, as the constitutional 

representative of the public, &q,?s the power to 

levy o?ly reesonable condition upon mqbers of 

I . . 

. 
Honorable H. Pat Edvards, Pager9 

the public for th3l.r use 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 .no power to legislate. The manner of its 

dlachargo of its trust cmea from the Leglalsture. 

“It Is well settled thst every member of 

the publlo has the right to use the public 

road in a reasonable msnner for the pranotlon 

of his health and happlskaa. Such USB, hovever, 1s restricted to a us3 with due care and 

in a reasonable manner.3 

As we interpret the authorities above quoted on 

tha definition of a public road, it is our opinion that 

tho desired restricted easement proposed to be acquired by 

Dallas County for pedestrian use only would not constitute 

in itself 8 public road or 8 part or portion of a Dallas 

County public road. ~The county Eoad and Bridge Pond balng 

expsndabie only for county public roads and bridges, it 

vould follow that this fund may not legally be used for 

the construatlon of any publla improvements other than public roads and bridges. PurthennopB, ln the event the construction of the desired passage way would ln fact auount 

to the construction of a permanent improvement, the county 

Caners1 Fund could not legally be expended therefor, but 

rather the procedure lnclaent to the use of the county Perzsnent Improvement Fund would have to be resorted to for 

the payment of the coat of said permanent construction. 

The absence of faota concerning the type of structure oontanplated prevent further .dlacusalon of this matter. 

With reference to your fourth question, we think 

it should aleo be pointed out that whether or not a rallroad company nay voluntarily grant a public easement over 

Lts right-of-way which vould involve the construction of 

u over-pass or an under-pass , over or under Its rlght-ofvay, depends on whether the railroad company owns its rlghtof-vay in fee simple absolute. This department has held 

ln its opinion 210.~ O-1110 that although the county 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 

the qvner 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