THE ATTORNEY GENERAL 

OF TEXAS 

May 22, 1957 

Honorable Fred F. Holub 

County Attorney 

Ma tagorda County 

Bay City, lkxae 

Opinion No. WW-125 

ReS Authority of County to relmburee Pipe Line Company ‘for 

expenses Incurred by virtue 

of acquiring right of way 

where there le a pre-existing 

pipe line. 

Dear Sirs 

The Sollonlng queatlon wae presented in your recent 

letter8 

“The question that Is presented here Ls that 

when the State Hlghway Commlaslon takes over an 

exlrjtlng County Road for the purpose of conatructlng a F.M. Highway and requeeta addftlonal 

rights of way to be purchased by the County for 

a wider right of way than originally included 

In the County road right of way, and said old 

County road Ian crossed by a pipe line of a common 

carrier, must the County pay said common carrier 

for meeting State apeolflcations In lowering 

and additional oaelng of the pipe line under 

the widened portion of said right of way%* 

ment a 

In your letter you also offered the following com- 

“It would appear, taking into eonalderatlon 

Article 6022 and 2351 that although the oommon 

carrier would have the right to cross a public : 

road; where same is a County road under Article 

2351, the Commls~loners Court in its exerelse 

of general control could control the methoU of 
Ihorable #red Fe Holub, page 2 (W-125) 

crossing and the looatlon oi ocos~lng. Here 

In this caee, had 8he comaon oafiier mde a 

Sonnal notlee OS urofmlng, the Oomlsalonerrr 

Court, could, It would be masoneble to assume; 

foresee a futulr ridenlng of sald road and mwire the croestng to provide ior Suture widenIngo M It appeam.that no formal approval or 

notice of crossing was promFed by the commn 

carrier, it would appear that now any addltlonal 

casing or lowering shotald be doan at the expenao 

of the comon darz%er.” 

.; 

: 

We refer you to Opinions -115 aW -78 (uhioh alw 

en.closed)holdlng, In eifect, that the expenses for XWloation 

of’ a utility on right of way alrerdy aubileot to publio use, 

must be bone by the utility rather than the publloo !kUOWW, 

your question 88. prebaented was limited to the propoaltion of 

whether or not n?lmburaerahnt was reqwlnd tq be paid to tha 

pioe 13114~ common carrier Por rrntlng State apeeifloetlcma ln 

1aPering rcM addZtlonaX ‘orslng of the pip% tiab un#r the new 

;;t”,~-&ymht~~o~~~~~ lbgBa&Bg~ 

which you rntlo?Wd 7oII lud in .7Iwls h-, 6~s H 60 Wt#’ 

lpeasupe of daeg is, B O&N%- -84t4 

+%%lelrfoaN’; lte sib -a* ena qanlag e&i’- 

rhezw the lee3 ~hel3 perwl~ sada 0oPpoFqtion 

as above akntlonad to eTeol 8lkl emafrfi& i&I 

lines under and aemau pI&llc Foatle, and whim3 

the county mqtix%?,a the ‘aUditiona Mght of way 

for new highwayEi OP publie roads over and acroaa 

the pHvate property of the above aeneloned 

corporation, the cow@7 vould b&liable bo se5d 

.? 

., 

.’ 

156 s.w, 2: 

, CIVD Ame 191, IIWR, 

‘It hepi long been the rule in this atak that 

3.s ‘~by.: the taking of a portion of one03 land 

for pub110 u8e it becomes necessargr fo build 

fences, constrwt gatee, culverts and other 

things necessary to make ths remainder usable 

and to prevent pester losses sustained by the 

: 2 
. . 

: . i 

., 

! 

Honorable Fred F: Holub, page 3 (WW-125) 

appropriation of that part taken, evidence 

of such expenses thus Incurred should be 

considered by the jury fn fixing the amount 

of damages to that part not appropriated. m 0 .” 

Also, see Plllot v. City of Houston, Clv. App., 1932, 

NWH, 51 S.W. 2d 794. 

* Should this right of way have to be condemned, the cost 

of buryltig and providing additional caning would not be a aeparate issue, but should be coneldered In the general Issues of 

the before and lifter Va?iu?a of condemneels property. IS, however, 

thle right IS acquired by but’of court settlement, It seems that 

there would,.be no other way to compute what the plpe line company 

la entitled to but by~.conslderlng the 008 t of reburying and providing ad~ltional~6a~lng, and ltla considered that this Is suppbrted by ample authority a8 above set forth. 

. 

You pointed out, aa above quoted, that you considered 

this situation different because the pipe line utility had not 

secured’ ‘permleslon of the Commisslonere~Court to cross the ex- 

~latlng’road and that “it would be reasOnable to assume” that the 

Commlsaloners ‘Court would “Sore&e a Suture widening of said. 

roads .alid require the crosalng to provide for Suture wldenlngo 0 0” and Sor’that reason there should be no llablllty for 

Mburylng and providing additional casing on the gortlon taken 

Soy ney, or additional right of way. 

It la submitted that this propoeftioc has been decided 

adversely to your contention in Hammon v. Wichita Count& Civ. 

AP~Q, 1956, 290 S.W. 2d 545 (no wrlt history) a 

“Wichita County has no right to destroy 

appellant OB property prior to the lawful 

appropriation thereof by paying or securing 

the pamnt of compensation. Cltjr of Fort 

worth v. Dletert, Tex, Cfv, Appoe 271 S.W. 

2d 299, error refused. 

“Conversely, the Coanty has no right to 

PeatFaIn appellant from making lawful, use of 

his property prior to a legal taking thereof 

by the County.” 

Hence, amumlng, wtthout decidlzg, that the statutes 

Impose upon the pipe line common carrier the duty of clearing 

with the Commissioners8 Court before crossing a county road, 
C._ c 

. . 

L ” : 

Aonorabl? Fred FI Holub, page 4 (WW-1%) 

. . 

and even aasumlng that the Commlsalonerp@Court has foreseen 

the widening, it could not have required the pipe line common 

carrier to make special preparationa, at additional exense, 

on land not In the then exlatlng right of way a8 euch would 

have been a restraint upon the use' of private property prior 

to a legal taking thereof. 

W@ere a pipe line croaa,e8 under an 

exlrting county road, which road lb deslnd by the Btate'aa a Fati to Market 

road, and additional Mght of w&y la required to widen the’ road, the governmental 

authority aectilng this additional right 

of way la authorlzed'to pay thi pipe line 

oommon carrier for expetia&a lncurred'ln 

meeting state ppeclficatlona which apeolSlcatlona require the lowering of the pipe 

line and additional casing therefor under 

the widened, or newly acquired, right of 

way. 

Youre very truly, 

APPROVED: 

OPINION COMMITTEE 

Ii. ffrady Chandler, Chairman 

FPed Werkenthln 

Ralph R. Rash 

Jas. W. Wilson 

&VIEWED FOR Ti33 ATTORXXY 

OENXRAL BY: 

f 

Ceo. P. Blazkburn