                           ORNEY      GENERAL
                         OPTE~AS

Grover Sellers




    Hon. D. C. Greer            Opinion No. O-5910
    State Highway Engineer      Rer Does the F.W, & D.C. Railway
    Texas Highway Department    Company and the City of Memphis,
    Austin 26, Texas            Texas, have authority to make the
                                exchange of property herein stated?
    Dear Sir:
              We are in receipt of your recent request for an opin-
    ion from this department on the following state of facts:
              "The F.W. & D,C, Railway Company has a 200 foot right
         of way through the city of Memphis. The city has con-
         structed a street 40 foot wide on each side of and paral-
         lel to the railway right of way. The proper location for
         highway U. S, 287 is onthe 40 foot street, on the west
         side of the railway right of way, however, it will be ne-
         cessary that a minimum right of way of 70 feet be secured,
         There are many buildings and other improvements on the
         west side of the street which would have to be moved in
         order to widen the present 40 foot street to the west,
         however, it may be that the railway officials would be
         willing to give to the State or the city of Memphis an
         easement on 30 feet off the west side of their 2C0 foot
         right of way in exchange for 30 feet to be added to the
         east side of their right of way. This, of course, would
         include 30 feet of the present 40 foot city street on the
         east of the railway right of way leaving only SO feet of
         the original 40 feet, In as much as there is very lit.tle
         improvement on the east side of the railway the city of
         Memphis may acquire an additional 30 feet of right of way
         adjoining the east line of the present city street on the
         east side of the railway thus restoring ,thestreet to the
         original width of 40 feet,
              "Before presenting this plan to the officials of the
         railway company and the city of Memphis will you please
         advise us if the railway company and the city of Memphis
         have authority to make the exchange hereinabove outlined.
         A rough pencil sketch is attached hereto for your further
         information.V8
              The facts in this request are insufficient, in that
    it is not stated whether the railroad owns the right-of-way in
    fee simple or merely has an easement over same0 We wil~l
Hon. D. C. Greer, page 2   CO-59lP)


endeavor to treat this matter under both assumptions.
          At the very outset of this opinion we wish to make
it clear that if the right-of-way of the railroad company is
an interest less than fee simple, it must be condemned for
highway or street purposes.

          16 Texas Jurisurudence. nase 681. provides as follows:
          "Hut'it is a fundamental proposition of eminent do-
     main that land that has been condemned for one use may not
     be permanently used for another and different one."
          In the case of O'Neal v. City of Sherman, 14 S.W. 319
plaintiff executed a deed to the city conveying a piece of
property for street purposes only, and the city in turn deliv-
ered the land to a company that had a contract to drill a water
well for the city. The Supreme Court held that the city could
not appropriate such land for the purpose of maintaining water-
works. See also Muhle v. N.Y. Tex.Mex. R.R., 25 S.W. 607.
          Now if the railroad company owns the property in fee
simple, the railroad company has a right to convey same in fee
simple or any lesser estate to the city.
          A title 6341, Vernon's Annotated Civil Statutes, pro-
vides as foflows:
          "Railroad corporations shall have the following other
     rights:


          "6o  To purchase, hold and use all such real estate
     and other property as may be necessary for the construc-
     tion and use of its railway, stations and other accommo-
     dations necessary to accomplish the objects of its incor-
     poration, and to convey the same when no longer required
     for the use of such railway.
          "7. To take, hold and use such voluntary grants of
     real estate and other property as shall be made to it in
     aid of the construction and use of its railway, and to
     convey the same when no longer required for the uses of
     such railway, in any manner not incompatible with the
     terms of the original grant."
          30 Texas Jurisprudence, 354, states that cities have
the authority to buy and sell property, said authority being
granted by the following Articles of Vernon's Annotated Civil
Statutes:
Hon. D. C. Greer, page 3   (O-5910)


                     4 states that after the city has complied
with the incorpora
          -          on statutes it shall:
           e* * + have the power to sue and be sued, plead and
     be impleaded, and to hold and dispose of real and personal
     property provided such real property is situated within
     the limik   of the corporation.f'
         Article 962:
          tlAllthe inhabitants of each city, town or village so
     accepting the provisions of this title shall continue to
     be a body corporate *** and in all matters whatever, may
     take, hold and purchase, lease, grant and convey such real
     and personal or mixed property or estate as the purposes
     of the corporation may require, within or without the lim-
     its thereof; ***'l
          The following Articles of Vernon's Annotated C;viP
Statutes,specifically provide that the city has the right to
condemn property of railroads:
          brticle 1149:
         "Any town or village in this State, incorporated un-
    der this Chapter or by special charter, shall have the
    right, and they are hereby empowered, to condemn the
    right of way and roadbed of any railway companywhose road-
    bed runs within the corporate limits of such town or vil-
    Iage, when deemed necessary and so declared, by a majority
    vote of the board of aldermen.,for the purpose of opening,
    widening, or extending the streets of such town or village;
    ***If

         Article 1150:
          llCountycommissioners shall have the right, upon petf-
     tfon of twenty freeholders of any community, or unfncor-
     porated town or city, to condemn roadbed of railroads for
     the same purpose mentioned in the preceding article."
          It is therefore our opinion that the city has the
right to condemn the property of the railroad for highway or
street purposes. Assuming that the railroad merely has an ease-
ment, it would be advisable to make the original grantors par-
ties to such condemnation proceeding,
          Assuming that the railroad company owns the right-of-
way in fee simple, the city has a right to the west 40 feet of
Hon. D. C. Greer, page 4    (o-5910)


same for highway purposes; but we are unable to find any au-
thority that would permit the city giving the railroad company
the exclusive use of the 30 feet on the east of said railroad
right-of-way which has been dedicated as a public street.

            Trusting this answers your inquiry, we are
                                  Yours very truly
                                  ATTORNEY GENERAL OF TEXAS
                                  By /s/ W. P. Watts
                                  W. P. Watts, Assistant
APPROvED MAY 4, 1944
/s/ Geo. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY:       OS, CHAIRMAN
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