August 8, 1962

Honorable Mack Wallace Opinion No. W-1413 CountyAttorney Henderson County Courthouse Re: Whether a contract seismograph Athens, Texas crew has the right to shoot on county roadswithout obtaining aneasement for that purpose Dear Mr. Wallace: from the county.

You have requested the opinion of this office as to the following question:

II

. . . whether or not a contract seismograph
crew has a right to shoot on county roadswithout obtaining an easement for that purpose from the county."

The public roads and highways of this Stateare established and maintained as an attribute of sovereignty. Title and control of public roads and highways,whether title to the land
overwhich it runs has been taken in fee simple or a mere easement has been acquired by condemnation or otherwise, is in the State and not the counties. Travis Countvv. Trogden, 88 Tex. 302, 31 S.W. 358 (1895);Robbinsv. Limestone ,Countv 114 Tex. 345, 268 S.W. 915 (1925);Statev. Hale 136 Tex. 29 '146 S.W.2d 731 (1941); Statev. Malone 168 S.W.2d 293 (Civ.App.1543 error ref.w.o.m.1. This is true ev& though the right ofway for i particularroad may have been acquired or taken in the name of the county, for as stated at page 919 of Robbinsv. Limestone Countv, sunra:

"Wherenot restricted by the Constitution, the Legislaturehas full control of the propertyheld by a county as an agency of the state, and may exercise dominion and control over it without the consent of the county and without compensating the county for it."

It is only by virtue of the enactments of our Legislature, as passed anJ amended from time to time, that the counties of this State through their commissioners' courts,have ever exercised jurisdiction over public roads as a part of the county business. The jurisdiction so grantedmay be erlarged or restrictedat the will of the Legislature, even to the point of excluding all authority respectingpublic roads, for as so often statedby our courts: the county commissioners' courts are courts

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Honorable Mack Wallace, page 2 (WW-1413)

of limited jurisdictionand exercise only such powers and authority as may be conferredupon them by the Constitutionof Texas
or the statutory enactments of the Legislature. BlandV* Orr, 90 Tex. 492, 39 S.W. 558 (1897);Mills Countvv. Lamnasas Countv, 90 Tsx. 603, 40 s.w. 403 (1897).

There is no provision of our Constitutionor statutory enactmentwhich would empmJer a county commissioners'court to issue a permit authorizing a seismographcrew to use the county roads or other public roads in the county for purposes ofmaking
a seismic survey. It, therefore,necessarily follows that such
crew or companywould not have to seek and obtain such a permit from the county commissioners'court.

We have partiallyansweredyour question by holding that no permit from the county is necessary,yet it does not necessarily follow, nor do we wish to be understoodas holding, that a seismograph crewmay have free and unrestricteduse of the county roads in pursuing the secrets of the geological structures lying thereunderand adjacent, for such is certainlynot the case.
The drilling ofholes beneath the surface of the earth and the discharge of explosives incident to a seismograph survey necessarily involves the invasion of the mineral estatewhich lies beneath the surface of the earth. One who so invades the property of otherswithout their permissionmust respond in damages for the trespass so committed. Phillips Petroleum Co. v. Cowden, 241 F.2d 586 (C.C.A. 5th, 1957). Your opinion request does not indicatehow the roads in questionwere acquired or the status of the mineral estate involved,however, the general rule in Texas is well established to the effect that: (1)The owners of property abutting upon a public road orhigh>Jayown the fee to the center of the road, subject to the public easement, unless it appears to the contrary in the granting clause by which the propertywas deeded, Mitchellv. Bass, 26 Tex. 372 (1862);Stanberv v. Wallace, 45 S.W.2d 198 (Tex.Comm.App.1932); Roarin Sprints Townsite Co.v. Paducah Teleohone Co., 164 S.&Civ. App. 191 ; ~ccessosuccessors in title if themineral estate be severed, retains the exclusive right in all minerals subject orl,y to the public easement for travel, Clutterv. Davis, 62 S.V. 1107 (Civ.App.1901, error ref.); m of RefuaioV* Strauch, 20 S.W,2d 326 (Civ.App.1929) reversed on other grounds 29 S.X.2d 1041 (Corm. App. 1930).

Assuming that the seismograph crew or company in question has the authority of the owner of the mineral estate to conduct the tests in question, their use of the county roads for such purposerrlould still not be without restraint, for the publicHon. Nack Wallace, page 3 (‘uw1413)

has a right to free and unobstructedaccess to the public roads and highways. Though themineral owners and their priviesmay retain their rights in the mineral estates,nonetheless these rights are subject to the public right of travel and theymay not interfere therewith. Calvertv. Harris Countv .W.2d 375 (Civ.App.1932, error ref.); Perrvv. mer ‘9%; 2d 143 (Civ.App.1928, error dism.w.0.j.); Town ,"g Ref$io v. itrauch, supra.

Boonev. Clark, 214 S.W. 607 (Civ.App.1919, error ref.) is a casewhere an oil well was to be drilled upon the right of way of a publichighway under a lease from the county and the landownerwho abutted the highway at the pointwhere thewell was to be drilled. Two legs of the derrick extended onto the traveled portion of the road and there was evidence that the ,free
access of the public to the highway was thus impaired. The court thereheld that the countyhad no authority to lease the right of way easement for oil and gas purposes or to grant authority to either the owner of the abutting fee or his lessee to obstruct the publicway in the process of developing theirmineral estate. The court furtherheld that the obstruction of the highwaywas a public nuisancewhich could be properly enjoinedby other land owners who abutted the publicroad in question and also pointed out that Articles

812 of Vernon's Penal Code (1911Revision),which is now Article 784 ofVernon's Penal Code,made thewilful obstruction of
a public road a misdemeanor and provided punishment therefor. These same principleswould apply to a seismographcrewwhich uses the public right ofway for conducting its tests. It shouldbe noted however that the question ofwhether the publicmay be obstructed in its use of the roadway or whether the roadwaywill be damaged are questions of fact to be determined from the particular circumstances.

We have endeavored to set forth the various principles of law which would applicable under various circumstancesbecause of the fact thatyou informed us by telephone thatyou did not at this timeknow who OWX?d the fee under the roadway involved or whether the seismograph cre>J purported to act with the consent of the owner of the underlyingmineral estate, consequently,we did not, by holding that no permit from the county commissioners' court to use the county roads bJaS necessary,desire to leave the impression that we were holding that a seismograph crew would be entitled to subvert the publicroads of the county to its own needs an5 purposes in fulfilling its contract./ I

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Ron. I4ack

Wallace, page 4 ('W-1413)

SUMMARY

The county commissioners'court is not authorized to issue a permit to a seismograph crew to make use of the right of way of the county roads to conduct its tests. Such seismograph crew may not use such roads so as to obstruct the public use thereofand may also be responsible in damages for any unauthorized invasion upon the underlyingmineral estate, or damages to thehighway.

Very truly yours,

WILL WILSON Attorney General of Texas

WOS:mkh:wb

APPROVED:

OPINIONCOMMITTEE

W. V. Geppert, Chairman JohnReeves Elmer McVey L. P. Lollar Dudley McCalla W. 0. Shultz Assistant

REVIEWED FOR THE ATTORNEY GENEPSL

BY: Leonard Passmore