                                                             5514

        ~EA'llTORNEYGENEltltAL
                     UDF ?B?ExAs




                      February 16, 1962

Honorable Fred P. Holub          Opinion No. ~~-1263
County Attorney
Eay City, Texas                  Re:   Authority to grant an
                                       easement for a gas pipe
                                       line along a county road
                                       acquired by prescription.
Dear Mr. Holub:
          You request our opinion as to   whether the Matagorda
County Commissioners Court may grant an   easement to a gas pipe
line along the right-of-way of a county   road, which road was
acquired by prescription as a result of   long continued public
use and maintenance.
          Article 1436b, Vernon's Civil Statutes, gives to
parties engaged in the business of transporting or distributing
gas for public consumption the right to lay pipe lines within
the rights-of-way of all public roads. The lines inquired
about are part of a gas gathering system, the gas being ul-
timately distributed for public consumption.
          Said statute itself confers the right on gas companies
to lay the lines within a right-of-way, but it requires that
notice of intention to lay such lines along a county road must
be given to the County Commissioners Court, which then has the
option to designate the place on the right-of-way where the
pipes are to be laid.
          Your opinion request annears to have been precipitated
by the contention of fee owners of the tract containing the road
in question that the prescriptive easement owned by the public
is for road purposes only, and that only the owners of the fee
in the land may grant an easement for the laying of pipe lines
under the road.
          The rule of law applicable here, in our opinion, is
set forth in Continental Pipe Line Co. v. Gandy, 162 S.W .2d 755
(Civ.App. lgbi, error ref. w.m.). When the Driscoll Ranch in
Nueces County was subdivided, a plat was filed of record con-
taining a dedication to the public of a 40 ft. road. With the
consent of the county, a telephone line was built on said road
by an oil pipe line company. The abutting owner, whose consent
Honorable Fred P. Holub,   page 2 (~~-1263)


was not obtained,  sued for damages and for an Injunction   re-
quiring the line’s   removal.  The court held that the abutting
landowner had no rights In the road superior to any other
member of the public,   and that the property rights of such
owner had not been violated.    The court said:
                “The construction    and operation of
          common carrier    pipe lines are now recog-
          nized as necessary and lndlspenaable       to
          a proper and economical exploitation       of
          the petroleum, natural resource.        They
          are of great Importance to the public.
          Private property ownera, the producers of
          crude oil,   and the public are interested
          In the expeditious     and economical trans-
          portation   of 011 from the producing fields
          and the-distribution     of It to the consuming
          public and. industry.     Pipe line transporta-
          tion is the best mode yet provided.        The
          public has an Interest     in relieving   other
          means OS transportation     and its highways
          of the burden they would have to carry but
          for pipe line transportation.        Hence the
          Legielature    has recognized the pipe line
          as a convenience and modern neceeeit;y and
          a business of public concern,       . , .
The quoted language dealing with oil pipe      lines   would appear   to
be equally applicable to gas pipe llnee.
            The fact that the public road was created by prescrip-
tion rather than by dedication   or grant is immaterial.  In
Phillips   v, T. & P. Ry, Co., 296 S.W. 877 (Comm.App., 1927),
  t ts aalas
                 “A right by prescription rests upon
           the presumption that the owner of the land
           has granted the ease$ent, and that the
           grant has been lost.
To the same eff’ect,   see Boone v. City of Stephenvllle   37 S.W.2d
842 (Civ.App.,   1931); 283 J S b41 Eaeements, S         6; 21 Tex.
Jur.2d 151, Easements, Sec.1 i5:    !f&,  since a gr%    is presumed,
a prescriptive   easement stands on the same footing au a granted
easement.
            Prescription   and title  by adverze poeeesslon  follow
substantially    the same pattern,   except that in the  iomer    only
an easement results,     whereas In the latter full title   ie ob-
tained.    AQ bald in 2 C.J.S. 512, Adverse Poseession,     Seo. 1:
                                                             5515

Honorable Fred P. Holub, Page 3 (~-1'2663)


              "Prescription and adverse possession,
         while differing in certain respects, are
         essentially the same in that both confer
         rights in property through the medium of
         adverse enjoyment."
Both prescription and limitation title are based on presumptions
of lost grants.
          Article 5513, V.C.S., declares that limitation title
is "full title, precluding all claims." It has been held that
title by limitation is as good as if acquired by patent, Bridges
v. Johnson, 69 Tex. 71, 7 S.W. 506 (1888), and is as legal as
one acquired by purchase, Wagers v. Swilley, 220 S.W.2d 673 (Civ.
App. 1949, error ref., n.r.e.).
          In 28 C.J.S. 676 Easements, Sec. 22, it is said:
              "Easements acquired by prescription
         stand in all respects on the same footing
         as easements acquired by grant; the title
         and right so acquired are as perfect and
         absolute as those acquired by grant; and
         the owner of the servient estate is estopped
         to question them, as against the owner of
         the dominant estate."
          We conciude that a prescriptive public easement in a
road gives the public the same rights therein as it possesses
in a road easement acquired by grant or dedication.
          We next consider the nature of the rights in such a
road that may be awarded by law to third parties. In McCammon
and Lang Lumber Co. v. Trinity & B.V. Ry; Co., 104 Tex. 8, 133
S.W. 247 (lgll), the court held that the laying of tracks for
a steam railroad along a dedicated road and alley constituted
a taking of property from the fee owners requiring compensation,
and upheld the right to an injunction against such taking. This
decision was followed in T. & N.O. Ry. Co. v. Thompson, 194 S.W.2d
123 Civ.App. 1946 error ref,); City of Orange v. Rector, 205 S.W.
503 Civ.App. 1918 and Pecos & N.T. Ry. Co. v. Falls, 96 S.W.2d
430 iCiv.App. 1936i, all involving steam railroads.
          In Galveston-Houston Electric Ry. Co. v. Jewish Literary
;ocitety,192 S.W. 324 (Civ.App. 1916, error dism.), it was held
 ha the laying of two sets of tracks in a street and the operation
of an inter-urban railway thereon was not a taking of the fee. The
tracks involved appear to have been the equivalent of street car
tracks and did not prevent vehicular travel.
Honorable Fred P. Holub, page 4 (~~-1263)


          The Gandy case, supra, distinguished the McCammon case
on the ground that the operation of a steam railroad amounted to
"an almost, if not quite, exclusive appropriation of the street
or highway." Clearly, in the case of the proposed gas pipe line,
there would be little, if any, interference with travel. In fact,
Article 6021, V.C.S., provides:
               "The right to run pipe lines along,
          across, or under any public road or high-
          way can only be exercised on condition
          that the traffic thereon be not inter-
          fered with, and that such road or highway
          be promptly restored to its former con-
          dition. . . .'
          The proposal of the gas company involved herein states
that the 4 inch pipe line will have a 36 inch cover meeting the
approval of the Commissioner in that district, and that the right-
of-way will be cleaned up to the satisfaction of said Commissioner.
          It follows that we are of the opinion that under Art.
1436b, V.C.S., the gas company is authorized to lay and maintain
the pipe line in question, after giving notice to the Commissioners
Court as required in said statute.
                            SUMMARY
               Companies engaged in the business of
          transporting gas for ultimate public con-
          sumption may, under Article 1436b, V.C.S.,
          lay their pipe lines along the right-of-way
          of a county road acquired by prescription,
          after first giving notice of such intention
          to the County Commissioners Court.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas




JAS:ljb
Honorable Fred P. Holub, page 5 (~~-1.263)


APPROVED:
OPINION COMMITl'EE
W. V. Geppert, Chairman
Pat Bailey
Elmer McVey
Milton Richardson
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Houghton Brownlee
