                        OWNICY         GENERAL

                                 XAS




Honorable Jack N. Fant
County Attorney
El Paso County Courthouse
El Paso, Texas

                            Opinion NO. c-482
                            Re: Whether the Commissioners
                                Court of El Paso County has
                                the authority to grant an
                                easement for construction
                                of a natural gas underground
                                pipeline across Ascarate Park,
                                a county-establishedpark,
Dear Mr. Fant:                  under the facts stated.
       You have requested the opinion of this office as to
whether the CommissionersCourt of El Paso County has the au-
thority to grant an easement for constructionof a natural gas
undergroundpipeline across Ascarate Park. You advise us that
on October 11, 1937, Cordell Hull, as Secretary of State of
the United States, conveyed a certain tract of land to the
County of El Paso for public recreationalpurposes. In examin-
ing this conveyance we note that the term "public recreational
purposes" is repeated several times, and that there is contain-
ed therein a reversionaryclause, by virtue of which the land
is to revert to the United States in the event "that the County
of El Paso shall cease to utilize the said described premises
       for public recreationalpark purposes. . ." (emphasis
wed).       Th 1 d conveyed by this deed has been and is now
known as Ascarzteagark, and has been and is now operated and
maintained by the County of El Paso as a public park. A natural
gas company has applied for an easement to install an under-
ground gas pipeline across a part of Ascarate Park, and you seek
our advice as to the prcpriety of the granting of this easement,
in view of the reversionaryclause contained in the conveyance
from the United States Government.
       We have been favored by several able briefs by the various
parties involved in this question. In one of these briefs, it was
contended that Article 2351, Vernon's Civil.Statutes, provides
the authority whereby the County of El Paso may properly grant

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Hon. Jack N. Fant, page 2 (C-482)


   s easement, for the reason that Section 19(e) thereof author-
till.
izes the county to sell, lease or exchange land'receivedfrom
the Federal Government. This contentionmust fall, for the rea-
son that Section 19(b) thereof authorizes the county to bind it-
self to comply with any and all terms and conditions imposed by
the Federal Government as a prerequisiteto the transfer of the
land. The County of El Paso, in this case, bound itsel$ ;zu;;e-
serve the land wholly as a public recreationalarea.
appear that the contract, standing alone, would operate to forbid
the county to make any use of the land inconsistentwith a wholly
public recreationaluse.
       If further authority were needed, we have only to look
to the case of Zachry vs. City of San Antonio, 157 Tex. 551, 305
S.W.2d 558 (1957-n     an exhaustive opinion, Justice Griffin re-
viewed the law surroundingthe uses which may be made of land
which has been dedicated as a public park, as has Ascarate Park.
In this particular area of the law, it does not appear to matter
whether the governmentalagency involved is a city or a county;
the same limits are imposed upon ~bothtypes of governmentalunit.
In Zachry, which dealt with a lease to build an,undergroundpark-
ing garage beneath Travis Park in,San Antonio, it was held that
the,City had no power to lease where there had been a dedication
to public park usage. Admittedly, in the Zachry lease there
would have been a loss to the public of approximatelyone-fourth
of the park area; the decision of the Court was not based upon
the loss factor, but upon the City's lease in violation af the
dedication to the public. Justice Garwood's concurring opinion
stated that he would have reached a different result from the
majority had the lease involved on1    the sub-surface,and result-
ed in no loss of land to the pubrry-c(use.
       In the particular case before us, It is apparently not con-
templated that there would be any diminution of the land area
available to the public. Nevertheless,it is the opinion of this
office that the easement in question would not be consistent with
the wholly public recreationaluse insisted upon by the contract
to which El Paso County bound itself, and to which Ascarate Park
has been dedicated.
                             SUMMARY
                             --
            Ascarate Park is dedicated to wholly
       public use both by contract between El Paso
       County and the Federal Government,and by
       the actions of the CommissionersCourt of
       El Paso County. The Commissioners  Court has
       no power to grant an easement across the

                             -2282-
Hon. Jack N. Fant, page 3 (c-482)


         Park to a private corporation for the
         installationof an undergroundnatural
         gas pipeline, for such an easement would
         not be consistent with a wholly public
         recreationaluse of the Park.

                             Yours very truly,
                             WAGGONER CARR
                             Attorney General


                             By&&
                                 Malcolm L. Quick
                                 Assistant
MLQ:ms
APPROVED:
OPINION COMMITTEE
W. 0'.Shultz, Chairman
Linward Shivers
Milton Richardson
Ralph Rash
C. L. Snow
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright




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