August 8, 1962 

Honorable Mack Wallace Opinion No. W-1413 

County Attorney 

Henderson County Courthouse Re: Whether a contract seismograph 

Athens, Texas crew has the right to shoot on 

county roads without 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 roads without 

obtaining an easement for that purpose from the 

county." 

The public roads and highways of this State are established and maintained as an attribute of sovereignty. Title and 

control of public roads and highways, whether title to the land 

over which 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 Countv v. Trogden, 88 Tex. 302, 31 

S.W. 358 (1895); Robbins v. Limestone ,Countv 114 Tex. 345, 268 

S.W. 915 (1925); State v. Hale 136 Tex. 29 '146 S.W.2d 731 (1941); 

State v. Malone 168 S.W.2d 293 (Civ.App. 1543 error ref. w.o.m.1. 

This is true ev& though the right of way for i particular road 

may have been acquired or taken in the name of the county, for as 

stated at page 919 of Robbins v. Limestone Countv, sunra: 

"Where not restricted by the Constitution, the 

Legislature has full control of the property held 

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 granted may be erlarged or restricted at the will of the Legislature, even to the point of excluding all authority respecting public roads, for as so often 

stated by our courts: the county commissioners' courts are courts 
, 

I 

Honorable Mack Wallace, page 2 (WW-1413) 

of limited jurisdiction and exercise only such powers and authority as may be conferred upon them by the Constitution of Texas 

or the statutory enactments of the Legislature. Bland V* Orr, 

90 Tex. 492, 39 S.W. 558 (1897); Mills Countv v. Lamnasas Countv, 

90 Tsx. 603, 40 s.w. 403 (1897). 

There is no provision of our Constitution or statutory 

enactment which would empmJer a county commissioners' court to 

issue a permit authorizing a seismograph crew to use the county 

roads or other public roads in the county for purposes of making 

a seismic survey. It, therefore, necessarily follows that such 

crew or company would not have to seek and obtain such a permit 

from the county commissioners' court. 

We have partially answered your question by holding 

that no permit from the county is necessary, yet it does not 

necessarily follow, nor do we wish to be understood as holding, 

that a seismograph crew may have free and unrestricted use of 

the county roads in pursuing the secrets of the geological structures lying thereunder and adjacent, for such is certainly not 

the case. 

The drilling of holes beneath the surface of the earth 

and the discharge of explosives incident to a seismograph survey 

necessarily involves the invasion of the mineral estate which 

lies beneath the surface of the earth. One who so invades the 

property of others without their permission must 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 indicate how the roads in question were 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 or high>Jay own 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 

property was deeded, Mitchell v. 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. ~ccessosuccessors 191 ; in title 

if the mineral estate be severed, retains the exclusive right in 

all minerals subject orl,y to the public easement for travel, 

Clutter v. Davis, 62 S.V. 1107 (Civ.App. 1901, error ref.); m 

of Refuaio V* 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 purpose rrlould still not be without restraint, for the public 
Hon. Nack Wallace, page 3 (‘uw1413) 

has a right to free and unobstructed access to the public roads 

and highways. Though the mineral owners and their privies may 

retain their rights in the mineral estates, nonetheless these 

rights are subject to the public right of travel and they may 

not interfere therewith. Calvert v. Harris Countv .W.2d 

375 (Civ.App. 1932, error ref.); Perrv v. mer ‘9%; 2d 143 

(Civ.App. 1928, error dism. w.0.j.); Town ,"g Ref$io v. itrauch, 

supra. 

Boone v. Clark, 214 S.W. 607 (Civ.App. 1919, error ref.) 

is a case where an oil well was to be drilled upon the right of 

way of a public highway under a lease from the county and the 

landowner who abutted the highway at the point where the well 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 

there held that the county had 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 

public way in the process of developing their mineral estate. The 

court further held that the obstruction of the highway was a public nuisance which could be properly enjoined by other land owners 

who abutted the public road in question and also pointed out that 

Articles 812 of Vernon's Penal Code (1911 Revision), which is now 

Article 784 of Vernon's Penal Code, made the wilful obstruction of 

a public road a misdemeanor and provided punishment therefor. 

These same principles would apply to a seismograph crew which uses 

the public right of way for conducting its tests. It should be 

noted however that the question of whether the public may be obstructed in its use of the roadway or whether the roadway will 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 circumstances because 

of the fact that you informed us by telephone that you did not at 

this time know 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 underlying mineral 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 public roads 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 

thereof and may also be responsible in damages for 

any unauthorized invasion upon the underlying mineral estate, or damages to the highway. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

WOS:mkh:wb 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves 

Elmer McVey 

L. P. Lollar 

Dudley McCalla 

W. 0. Shultz 

Assistant 

REVIEWED FOR THE ATTORNEY GENEPSL 

BY: Leonard Passmore