### 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 awider right of way than originally included In the County road right of way, and said old County road Iancrossed **by**a pipe line of a common carrier, must the County pay said commoncarrier for meeting State apeolflcations In lowering and additional oaelng of the pipe line under the widened portion of said right of way%*

menta 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 FeHolub, page 2 (W-125)

crossing and the looatlon oi ocos~lng. Here In this caee, had 8he comaon oafiier mde a Sonnal notlee OSurofmlng, 

### 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 nowany 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’autility onright of wayalrerdy 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~

commoncarrier Por rrntlng State apeeifloetlcma ln 1aPering rcMaddZtlonaX ‘orslng of the pip%tiab un#r the new ;;t”,~-&ymht~~o~~~~~ lbgBa&Bg~ which yourntlo?Wd 7oIIlud in .7Iwlsh-, 6~s H 60Wt#’ lpeasupe of daeg is, BO&N%- -84t4

+%%lelrfoaN’;lte sib -a*ena qanlag e&i’- rhezw thelee3 ~hel3perwl~ sada 0oPpoFqtion as above akntlonad to eTeol 8lklemafrfi& i&I lines under and aemau pI&llc Foatle, andwhim3 the county mqtix%?,a the‘aUditiona Mght ofway for newhighwayEi OPpublie roads over and acroaa the pHvate property 

### of the above aeneloned corporation, the cow@7 vould b&liable bose5d

.?

.,

.’ 156 

### s.w, 2: , CIVD**Ame** 

### 191, IIWR,

‘It hepilong been 

### the rule in 

### this atak that 3.s ‘~by.:the taking of a portion of one03 land 

### forpub110 u8e it becomes necessargr fo 

### build fences, constrwt 

### gatee, culverts and other 

### things necessary to makeths 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. m0

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

### 51S.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 008t of reburying and providing ad~ltional~6a~lng, and ltla considered that this Is suppbrted by ample authority a8 above set forth.

.

Youpointed 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 Hammonv. Wichita Count& Civ. AP~Q, 1956, 290 S.W. 2d 

### 545(no wrlt history) a

“Wichita County has no right to destroy appellant OBproperty 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 commoncarrier 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@erea 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&yla required to widen the’ road, the governmental authority aectilng this additional right of way la authorlzed'to pay thi pipe line oommoncarrier 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: OPINIONCOMMITTEE Ii. ffrady Chandler, Chairman FPed Werkenthln Ralph R. Rash Jas. W.Wilson &VIEWEDFORTi33ATTORXXY OENXRAL

BY: f

Ceo. P. Blazkburn