                         OIRNEPGE~~I.
                       OFTEXAS




Hon. Fred Harris         opinion No. O-2405
$ounty Audit,or          Ret Highways - Pipe Lines
 Polk county
 Livingston, Texas
Dear Sir;
           Your request for opinion has been received and care-
fully considered by this department.   We quote from your letter
of request as follows:
          “Attached you will find ‘a copy of a franchise,
     that Polk County made with or to SKELLPIPE LINE
     CORPORAl!ION,in 1931, which is self explanatory.      With
     this franchise    and the laws of Texas, please advise me
     on the following:
            “Under the above authority SHELLPIPE LINE COD-
     POEUTIONlaid pipe lines and erected telephone lines
     in Polk County, under above, etc. the roads of Polk
     County, then in 1938 balk County was called upon by
     the State highway Dept. to secure right-of-way     for
     various highway constructions    most of which was newly
     located,   along the old highways, then it followed
     that the SEELLPIPE LINB CORPORATION     was called upon
     to lower their pipe in several places and to case
     said pipe at these new locations,    some of these new
     locations   was only a few yards of the old location,
     but the above mentioned work was necessary.
           ‘“About December 1938, SHELLPIPE LINE CORPOBA-
     TION presented Polk County with an account, represent-
     ing that this was cost on said job, Polk County Com-
     missioners Court passed an order that same be paid,
     but I refused to sign said warrant, and to date they
     have not received their money, however they now demand
     that this account be paid.
           “1 refused to sign this warrant, because I was of
     the opinion that their franchise    called for them to do
     this kind of work at their own expense, for the privi-
     lege of crossing,  etc. our roads at their will and
     pleasure same being the only consideration    that Polk
     County received for said franchise.
                                                                                  .   .




Hon. Fred Norris,      page 2      (O-2405)

                “Now the present   Commissioners Court, at a recent
          meeting rescinded the    order that their predecessors
          passed, ordering that    this account be paid.   (The pres-
          ent court says not to    pay this account.)
               “Please advise  as to your opinion, as to whether
          Polk County owes  SH&L PIPE LINE CORPORATION anything
          or not .‘I
               The order of the commissiorrrs~ court,        attached   to your
letter,      reads as follows:
                                        “ORDW
                 “Now, on this the 13th day of July, 1931, The Board
          of County Commissioners    of Polk County, Texas, having
          convened in regular call,   pursuant to law, and it appears
          that the following   members of said Board were present,
          to-wit:
                                W. J. Tullos,
                                County Judge, Polk County
                                John McLeod,
                                Commissioner,   Pre.   #2
                                Carl Bergman,
                                Commissioner, Pre.     813
                                Fred Handley,
                                Commissioner,   Fre. #4
          “And it appearing that said meeting has been in all things
          lawfully  convened end there coming on for hearing the ap-
          plication   of the SHELLPIPE LINE CORPORATION,  praying for
          authority to use certain highways and public places in Polk
          County for the purpose of laying pipe lines in Polk County
          and erecting a line or lines of poles with telephone and
          telegraph wires thereon, and said application   having been
          duly considered,   and it appearing that the same ought to be
          granted.
                wNOW,IT IS ORDWRD, CONSIDERED     ANDADJUDGED,that said
          SHELLPIPE LINE CORPORATION,its successors       and assigns are
          granted authority to use the highways and public places of
          the County of Polk, State of Texas, and to lay thereon,
          through, over, under and across the said highways and pub-
          lic places in said County, pipes and pipe lines for the
          transportation   of oil, petroleum and/or any of its products,
          gas, water, refined oil and other substances and/or any
          thereof,   with the right to construct,  reconstruct,   replace,
Hon. Fred Norris,   page 3   (O-.+5)


     renew, maintain, repair, operate   change the size        of,
     and remove said pipes and pipe lines.
            “There is also granted the said Shell Pipe Line
     Corpor,ation,    its successors   or assigns,   the right to
     erect and maintain, through, under and, across said
     highways and public places of the County of Polk
     State of Texas, a line or line of .poles, with teie-
     phone and telegraph..wires      thereon    and also the right
     to lay adjacent to and parallel        with the first    pipe
     line or lines other pipe lines;        and the said grantee,
     its successors’and     assigns,    is granted the right of
     ingress and egress to and from sald lines or any of
     them, for the’purposes      of construction,    inspection,
     repairing,    renewing, operating,     changing the size of,
     or removing the same, ,together with the right of re-
     moval of such, in whole or fin part; said grantee, its
     successors    or assigns to select the route,of       such
     lines.     Erovided.        all DiDe-



          “Done by the Board of County Commissioners of
     Polk County, Texas this 13th day of July, 1931.
     “ATTEs!rr
                         I
     glex
                                 Chairman of the Bbard.
     UEAL)
     Filed   July 13th; 1931
                                ty,    Texas.”
             &ticle   1497, Vernon’s Texas Annotated Civil Statutes,
reads as follows:
             “Such ‘corporation  shall ,have the right and power
     to enter upon, condemn and appropriate         the lands, right
     of way, easements and property of any person or corpor-
     at ion.    Such c~orporation shall have the right to lay its
     pipes and pipe lines across and under any public road
     or highway or under any railroad,        railroad    right of way,
     street railroad,      canal or stream in this State, and to
     lay its pipes and .pipe lines across or along and under
     any street or alley in any incorporated         city or town in
     this State with the consent ‘and under the direction         of
     the governing body of such city or town. go oioe l&azi
          1 be lwallel           with a&3 on anv ac          h&g&&y,
Hon. Fred Norris,       page 4   (O-2405)


        thereof.  exceot with the aooroval and under the w-
        tion of’ the c-s           court of the county in whic&




        der any cemetery, church or college,        school house, resi-
        dence business,     or storehouse,    or through or under any
        building in this State, except by the consent of the
        owner or owners thereof.      All such pipes and pipe lines,
        when same shall pass through or over the cultivated          or
        improved lands of another, shall be well buried under
        ground at least twenty inches under the surface,         and
        such surface shall be properly and promptly restored by
        such corporation    unless otherwise consented to by the
        owners of such land.      When such pipes and pipe lines
        shall be laid over or along any uncultivated         or unim-
        proved lands of another, and such lands shall thereafter
        become cultivated     or improved, such pipes or pipe lines
        shall be buried by’said     corporation   as herein provided
        for cultivated    lands, within a reasonable time after
        notice by the owner of such lands        or his agent, to said
        corporation    or any agent thereof.?’     (Underscoring ours)
              Article   6022, Vernon’s      Texas Annotated Civil   Statutes,
reads    as followss
             “Every person, firm, corporation,       limited partner-..
      ship, joint stock association,      or association      of any kind
     whatsoever owning, operating or managing any pipe line,
      or any part of any pipe line within this State for the
      transportation    of crude petroleum that is declared by
      this title    to be a common carrier,     shall have the right
    ~--and-power off eminent domain in the exercise         of which he,
      it or they may enter upon and condemn the lands, rights
      of way, easements and property of any person or corpora-
      tion necessary for the construction,        maintenance or opera-
      tion of his, its or their common carrier          pipe line;   and
      shall have the right to lay his, its or their pipes or
      pipe lines under any railroad,      railroad right of way,
      street   railroad   canal or stream in this State; and along
      and under any street railroad,     ,canal or stream’ in this
      State; and’.along ,and under any street or alley,&           any in-
      corporated city or town in this State with the consent
      and under the direction     of the governlng body: of- such city
      or town; and across and under any public road,. provided
      that, no pipes or pipe lines shall be laid parallel           with
      and on any public highway closer than fifteen           feet from
      the improved section
    ,
:



        Hon. Fred Norris,        page   5   (O-2405)


                thereof except with the approval and under the direction
                of the commissioners court of the county in,which such
                publichighway   is ,located; and such other rights in the
                matter of laying pipes and pipe lines as are conferred by
                Article 1497, ~subjec,t to the conditions, limitations and
                restrictions  therein stated.@

                     - Article
                        we       6021, Vernon’s    Texas Annotated Civil   Statutes,
        reads     as rollowa5
                      “The right to run pipe Sines, telegraph and telephone
                lines along, across or over any public road or highway
                can only be exercised upon condition       thatthe   traffic
                thereon be not interfered    with, and that such road or
                highway be promptly restored      to its former condition     of
                usefulness,   and the restoration    thereof to be subject also
                to the supervision   of the commissioners court or other
                proper local authority.     In the exercise     of the privileges
                herein conferred,   such pipe lines shall compensate the
                county or road district,    respectively,    for any damage done
                to such public road.     Nothing herein shall be construed to
                grant any pipe line company the right to use any public
                street or alley of any incorporated       or unincorporated    city
                or town, except by express permission from the governing
                body thereof .I1
                   Commissioners1 courts are courts of limited jurisdiction,
        in that their authority   extends only to matters pertaining    to the
        general welfare of their respective     counties and that their powers
        are only those expressly or impliedly conferred upon them by law,
        that is, by the Constitution    and statutes of the State.    11 Texas
        Jurisprudence,  pages 564-5.
                   The license   granted by the county to the pipe line com-
        pany shown above is subordinate to the paramount right of the
        county to construct,    alter,   repair and maintain the roads of the
        county.   The law. requires that the pipes and pipe lines be so bur-
        ied and covered as not to interfere      with the use and occupancy
        of roads and highways.       c&t. 1497) The coverlng   and burying of
        pipe lines to proper depths so as not to interfere      with roads and
        highways is a legal duty of the pipe line company; it follows       that
        the expense of such compliance is an expense chargeable to the
        pipe line company. Neither the law nor the license       granted would
        make the county liable     for such expense.
                      You are therefore      respectfully  advised that it is the
        opinion     of this department      under the facts stated in your letter,
Hon. Fred Norris,   page 6   (O-24O5)


that the commissioners'  court of Polk County, Texas,      has no
authority to pay the claim described  in your letter.
                               Yours very truly
                                A!l'TORNmGENERAL
                                               OF TEXAS
                               By /s/ Wm. J. Fanning
                               Wm. J. Fanning, Assistant
APPROVED  J-m 8, 1940
/s/ Gerald C. Mann
 ATTORNEY GENERAL OF TEXAS
APPROVED:OPINION COMMITTEE
BY:     BWB, CHAIRMAN
WJF:AW:wb
