                        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 estab-
lished 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 ex-
     ercise dominion and control over it without the con-
     sent of the county and without compensating the
     county for it."
          It is only by virtue of the enactments of our Legisla-
ture, as passed anJ amended from time to time, that the counties
of this State through their commissioners' courts, have ever ex-
ercised jurisdiction over public roads as a part of the county
business. The jurisdiction so granted may be erlarged or re-
stricted at the will of the Legislature, even to the point of ex-
cluding all authority respecting public roads, for as so often
stated by our courts: the county commissioners' courts are courts
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Honorable Mack Wallace, page 2   (WW-1413)


of limited jurisdiction and exercise only such powers and author-
ity 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 struc-
tures 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 dam-
ages 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>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
property was deeded, Mitchell v. Bass, 26 Tex. 372 (1862); Stan-
berv v. Wallace, 45 S.W.2d 198 (Tex.Comm.App. 1932); Roarin
Sprints Townsite Co. v. Paducah Teleohone Co., 164 S.&Civ.
~ccessosuccessors
App. 191 ;                                            in title
if the mineral estate be severed, retains the exclusive right in
all minerals subject orl,yto 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 ques-
tion has the authority of the owner of the mineral estate to con-
duct 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 ,"gRef$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 trav-
eled 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 pub-
lic nuisance which could be properly enjoined by other land owners
who abutted the public road in question and also pointed out that
Articles812 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 ob-
structed 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>Jpurported 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.
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Ron. I4ackWallace, page 4   ('W-1413)



                              SUMMARY
           The county commissioners' court is not author-
      ized 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 min-
      eral estate, or damages to the highway.
                                 Very truly yours,
                                 WILL WILSON
                                 Attorney General of   Texas




                                        W. 0. Shultz
WOS:mkh:wb                              Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Elmer McVey
L. P. Lollar
Dudley McCalla
REVIEWED FOR THE ATTORNEY GENEPSL
BY:   Leonard Passmore
