‘.,     -




            OFFICE.   OF THE   ATTORNEY     GENERAL     OF TEXAS

                                   AUSTIN




      Honorable Ii. Pat Edvards
      civil Dls trlot At torne3
      Dallas, Texas




                                                        or088 Sam, and   ‘..
                                                      ted qllestidng,


                                                       recent request for
      an 0plnLon h3 t                                   trw four follow-
      irk su?xAtted qu

                                               ndamn an easePent
                                                 an deemed necea-
                                                 r Of th8  COlUUiS-
                                             098 of extending a
                                             road across said
                                            conneat the ssme vlth


                                  fact that four railroad     tracks



                 3.   Can such a condemnation be had forI ar?d
            restricted to, pedestrian traffic onlyl

                 4. If a railroad canpsny should voluntarily
            grant a public easement over OF under its rlght-



                                               ..
     .
~~snol-.nble
           R. pnt ;XIvaXls, ?S.~e 2



     of-w3   connsct.lr~ two gubltc roads, vb:ch by the
     express terw of ths dedlastion 1s restricted to
     nedestr&3n use e,      by the public 5~ ~en9r31,
     &nd uhlch dadlcatlon is further condditioned up-
     on the counties construttlng and msL-,tzInniz:
     sam9, end thu oommlo310n9rs1 court 13 cf the
     0pLnZon that such passage will be of 2ublLc
     benei'lt and th3t a nsccsslty exists for such
     passaGe for pub110 convenience and safsty, can
     Dal.lss County lszslly ua9 the Road t;SrLdse
     ZQnd or tk;e Ceneral Fund fcr tko con3tructlon
     and me'~tensnce of ssm9?

           Prom ycsr letter dated :-fag28, 1933, we cuote the           .
follo*&-n;:informs tion relstlve to tha cue3tLon subikttsd:

            "Tha fscts are 08 follorrr: WC lsnd to be
      condemned by I%~llss Cotltrty13 a Fart oi' E rail-
      road rfghht-of.usy and road bed, Lt vLll ,tzverse
      four rsilrosd trecko; the scme is situsted In
      Callas County in n commn.nLty which I3 not an-k-             _-.
      coqonted    city, v:lls~e or town; the enssment
      desked   is Car the yJ.rjlooeof ccNl3c:"-r?;:
                                                  two
      ?rerLously dedictted end estsblL3hed ydblic
      roads."

              An oxanins';ion of the lmm of Texss reve.tls thzz
\-oth genorsl and spec4sl     lnvs 879 cvailable to th9 Xll,zs
i3-Q    s\;thcM.tlea    named thorein for tke 7~~093  OS acq~~lr
 Iq necessary property to be wed       in the sstnblL3'hm9nt and
 .o;enlx of public -cads znd ‘hi;;?--ey3.

            T?-tle 116, Chapter 2, Revked  tXv!.l Stzt'Jtcs, or-
 ~Lcles 6102 6716 In Vernon's Annotated Civil Ststtites, a
 ;ensrzl  lc~v, sets out on9 procedurs f9r the cond~~ztiou oi'
 goperty   for public road j~~urpooea. Fr-oizMtic19 67Cz-, ve
 q..ote :n snrt a3 frjllovn:



                                                                    ,
         .




Iionorable H. Pat i3dv3rds. Page   3


          Article 3264 et SW., V.A.C.S., ths noet cozzmon
of the ;;eneral laws on condemnation, provides undsr ArtIcls
3254a, In part, as follovs:

           “The rtght of Eminent Dcmaln is hereby con-
     ferred u?on countlee of the State of Texas for
     the purpo,oeeof condamnlrgg and acqulrqng land,
     right-of-vay or easement in land, private or
     public, except property used for cemetery pur-
     posss, where eaid land, right-of-nap or easement
     Is necessary   in the oonstruction of jails, court-           .
     houses, hospitals, delinquent and dependent
     schools, poor farma; libraries, or for other o1.2~~
     ~,F~nmpor~s.    vh9re such purpose is nov f’ nay
                  s autaorieed by the ConstitntAon or
     statutes of this state.

          “All such conckmnat~on groceedfap  shsll be
     Instituted under the direction of the coaxz:ssion-
     em ’ court, . . . *” (Underscoring ours)~

           Articles 1150 and 1149, ‘J X.C.S. provide 59t another
method by which property neceassry Zor the construct:oc of
public roads map -be acquired by condemnat’Lon. Fran Art:.-19
1143 v4 qUOt8   ti part a8 fcllcvsr

           9Any tovn or village in this atste, incor-
     porated under thls chaptar or by s~peclal charte:,
     eh611 hvc3 the K&t,     aad thsy 3rr3 he,ze+j eapw-
     ered, to condsmn the right-of-vay and roadbed of
     any ra:lvay company vhose roadbed runs vlthin ths
     corporate l&nits of such tovn or vLllas;e, vhcn
     deemed necessrry and 80 declared, by a majorit;
     vote of the So.nrd OP Aldermen, for the purpose
     of openiq,    v:dealng or extending the atroeta of
     such  tovti or villg~e; provided, there 3rd   less
     than four rsllroad tracks. . . . .’

And Article   1150, vs quote in full .as follovs:

            “County commissioners shall have the rlsht,
      upon petftlon of tventy freeholdors of zng com-
      nunLt.y, or unincorporated town or cites, to cc+9mn
‘donorable Ii. Pat Edwards,   Page 4



     road beds of railroads for the same,yrpose
     mentioned in the preoeeding article.

          Acts 1941, 47th Leglsl.ature, Re8ular Sesoion, Chap-
ter 458, House Bill 961, 1s a special lav enacted to create
a more efficient road system for Dallas County, portibns of
vhich speak1   law, psrtinent to this opinion, ve quote aa
follows a

           “sec. 6. The oommisslonars~ court in said
     oounty shall have the right to con&m any pro-.
     pert7 necessary for the openIn&   widendng, or
     ‘malntainlag of a publlo road . . . .
           R . . . .

           n         provided, houever, the provisions
     hereof s    &&llative   of the present lsvs relat-.
     lng to condsmnatFan and the conraissioners’ court
     may proceed under the provisions hereof or under
     the provisions of the General Laws vith refer-
     e.?oe to the condemnation of right-of-Ysp b7 rail-
     roads or hy jury of vlow.

            “sec. 24. The provisions of tUs act ars
      and shall be held and construed to be cunulotive
      of all Goneral Laws of this state on the subject
      treated of snd embraced in this aot vhsn not in
      conflict herewith, but in case of said conflict,
      in whole or in part, this aot shall control
      Dallas County; . , . .”

           In the light of the ststutes hersinabove enumerated,
 It 1s the opLnion of this department that Dallas County may
 condemn an easenent over a railroad right-of-way vben deened
 necessary for- the purpose of extending a regularly dedicated
 county road across said railroad right-of-war, in sccordance
 uith the condaatlon    procedure set out in Artiols 6702 et
 seq.; In Article 3264 et seq., V.A.C.S.; or in Dallas County
 Special Road Lav hsrein rofsrred to as 5-e    Bill 961. The
 provisions of these statutes confer the r<Qht of jkI.inent
 Doma4a on the Dallas County cmmlss~oners to condenn any pro-
 perty necessary for a public county road purpose. Bo attempt
 IS therein made to linit the ccmmissloners’ gover to condemn
i?morable~ U. pst Edvrrds,    Psgo 5



rzLlroad right-of-ways.    That the county has the option to
>rocsed under  the provlsf.ons of either of these statutes
Ss, ve thiuk, settled undsr the deciklon end ~3339 sst out
‘a Tarrant County vs. Shanuon, 129 Texas. 264, 104 S.W. (2d)
3, rev3rsing the Court of Civil Agpsals, 9 S.W. (2d), 934,
vhLch exDressly overruled O’Keefe vs. !iudspath County, et
al., (Tsx. Civ. App.) 25 S.W. (26) 625, contsinlng exprss-
slors to the contrary, and wblch rul’ing wae folloved In
Doughty vs. CeFee, 152 S.V. (26) at page 410. Our ansver
to your first -quest:cn is, therefore, in tineaffimstlvs.

            By the provisions of Article 1150 and 1149, V .A.
C.S., tho rlgbt of the county commlssioriers to condemu rail-
:oad right -of-vays is limited to the condemnation of right-
or’-vays which have less than four railroad tracks. The prob-
13~1s vhLch msy confront the comlsalonere~     court, should it
elect to enter ,proceedinSa h ~ccorrlance vlth said Article3
1150 and 1149, vould not ~~13.9, If it elected to Droceed
under the other ~oneral statute or syecinl law hers- set
cut. Should Dallas County elect to institute condemnation -~
oroceedlws    uuder its special road law, for instance, then
tFl3 fact that the four railroad tracks will have to be
cpossod vi11 not interfere v?th oi-prevsnt such- a conaeana-
tion for the reason that under 329 special law any property
deemed xeceasary by the cocm:ns:oners r;ay be condemed for
public rocd purooses.     in the case of iii11 County vs. D-ryant
,zad Zd’r’nx~, 11% Texas, at page 365, the Zqmme     COWL hsld
 chat a s;?cc:Rl road lov supersedes the general road laws
vhere they oonflict with said specl31    lsv, and the corn--ts
ar3 requir3d to take notLc3 of the special law. see al30
Sansss C. ts G.R.R. Co. vs.   Grayson County, ,(Clv. A;p.) 5
s.W    (2d) 542. 2-m ansver to your second qu3stlon is, thers-
 fore, in the negative.

           Vith ~e;%?d to your third q‘a38tiO?1, ve think the
;roper ansver thereto depends upon the Dover, If any, in the
county comm:ssFonera     to restrict    ih3 use    Of any DUblie     r03O
“or pedestrian pu-yeses only. The ccmnissionersi court is a
1
creature of the State Constitution, and Its powers. are 14aited
2nd controlled by ths Constitution and the laws as gassed by
zhe Leg)Lslature.    Article     5, Section 16, Constltut:on of Tex-
as; Baldvi~ va           -   Countv   68 S.U.   a%;   Comsiesiouersl
C3urt   v3.   i3112~&L          (54)   533.
Honorable H. P8t Edvards, Page 4
                               ,,


           Articles 2351 through 2372h, V.A.C.3 , as arnenaod,
set out the various pavers and duties of the commlssionsrs~
court end ar9 too lengthy to set out ln this opinion. Hov -
ever, It should be pointed out th8t none of the above men-
t:oned ertioles direotlg or lndlreotly give the comalasioners’
co=-t the paver to restrict the use of any public road to
psdestrlan traffic. Within oertaln constitutional lisita-
tions, the Legislature has exolusive control over public
roads and hlghvags in this State. The right     to establish
and build hlghvaps r9sts primarily with the Legislature,
such povsr may be dslegated to some other agency as it may
determine.     State vs. Hale, 146 S-U. (26) 731. It is now
vsll sett.led that pub110 roads belong to the State and that
 the State has full control and authority over the’ same. Tl%V-
 is county  vs.  Trogden, 88 Tex. 302, 31 9.w. 358,. It is also
s vell established rule that the commlssfcners~ court may ex-
ercise only those povers speoifically design8ted by the Ccn-
.etit.ution or the statute.   The fact that the Legislnture hsa
 exclusive control over public roads and hlghvays In the State
 and has not seen fit to grant the said oounty.authorlties the
paver to limit or control the use of Its public county roads
 ccmpels us to the conclusion that the county oommissloners’
 ccurt does not have the paver or authority to linlt the use
 parmanently of any of its publio county roads or portiona
  thereof to pedestri8.n use only. Our msver   to your third
 qusstlon is, therefore, ln the negative.

          with rega;-d to your fourth submitted question, the
railroad company being owner of the right-of-vay in question
could oertalnly grant a pub110 easement dressing over same
to be used for pedestrl8.n purposes only. Furthermore, Article
1151, V.A.C.S., places a duty on the railroad to keep th8t
portion of its road bed and right-of-vay over or across vhich
any public street of any Incorporated village or tovn may run
Ln proper condition for the use of the traveling public. But
vhether or not the county Road and Bridge Fund may bo used to
consttict a paSS8ge ~87  to be used for pedestrian purposes on-
ly depends, ve think, on vhether the so-called passage vay so
restricted vould come vithln the deflnltiou of 8 public road.
The cost of oonstruotlon of csunty public roads and bridges
Is authorized and cxpendsble out of the county Road & Bridge
Zonorable     II. Pat IZdvards,   Page
                                         f


Fund. Will this proposed easement restrloted to psaestrlsn
use only, be It acquired by oondemnatlon or dedication, con-
stitute in fact a part or portion of 8 public road?

          Prom Bradford       vs. Moseley, 223 S.W. 171, 173, de-
cided by the Commlsaion       of Appeals of Texas, Seotlon B, ve
quote *

             “What is a publio ro8d Is in a measure de-
       pendent on the fact of each particular case, but
       the charaoter   of a road does not depend on its
       length, nor upon the plaoe to vhich it 198ds nor
       1s its character determined by the number of peo-
       ple vho aotually travel upon it. Decker vs. iron-
       ard (Civ.  App.) 25 S.W. 728; Elliot on RO~XIS
       Paragraph l-7. A road may be established which
       is a cul-de-aao Id. A road open to the public
       is a pub110 road, though one person msy be moat
       benefited by it. Galveston, etc. vs. Baudat, 18
       Tex. Clv. App. 595. It is a hi&way     If there is
       a general right to use It for travel, and lf’it
       1s cpen to the use of all peopls.    Elliot on
       Roads Paragraph l-3; Sumner, etc., vs. Uteruzbzr,,
       etc., 141 Term, 493, 213 S.W. 412.”

We cite also :liseouri Pac. R.R. vs. Lee, 7 S.W.          857, 70   TOX.,
at page 500 for a definition of 3hil8r   nature,

              In Words 8 Phrases, Permanent       Etitlon, volume   35,
page   323,   ve find the s0110w1ng:

             “The test es to whether or not a road 1s
       a public road is not simply how many people
       actually use it, but hov many may have a free
       end. unrestricted right in common to use it.
       If it is free and common to all citizens, thea,
       no matter whether It is or 1s not of great
       length, or vhether It leads to or from a vil-
       lnge, city, or hamlet, or vhethar it is much
       or little used, it Is a ‘pub110 road.’ Henln-
       ger vs. Perry, 47 S.E. 1013, 1014, 102 Va, 896,
       quoting Elliott Roads & Streets, paragraphs 11,
       192.”



                                             ..
    Honorable   ii. Pat Edwards,   Page
                                          %        i:


    And on psge 322 of the same vollJme we find the f0110v3-2-2
    definition:

               "A lpubllo road' 1s a vay open to all
         the people vlthout distinction for paasage
         and repassage at their pleasure, being a
         public thoroughfare.   Clv. Code Article 705.
         Gsllovay vs. W att Metal & Boiler Works,
         181 so. 187, 189 ~a. 837.”

              In Sumner County ~8. Interurban Transportation
    company, 141 Term. 493, 213 3.W. 412, as set out In 5 A.L.R.
    765, at page 767, wherein it was held that a Tennessee Coun-
    ty court was yitbout authority to restrict the size and
    veight of vehicles which shall be used on public county roads,
    va find the folloolng definitlonz

               “Roads belong to the public, and the coun-
         ty court holds them in trust for the public and
         while It 1s proprietor for the premises of Its .-
         trust, it is not proprietor in the sense that      -
         it is tha owner of the road against the public,
         or anr number thereof. A public road is a vag
         open to all the people,.vithout distinction,
         for passaga and repassage at their pleasure.
         Definition In other terms have been given, but
         they nean substantlall~ the same as the one
         just stated.    The authorities make it clear that
         any road which is not for the us3 of the people
         Is not a public road; the fact that it Is for
          the benefit of the public destroy the thought
          that there cm be a private mershlp     of the
         road.    (Cases cited) This be5.q ths established
         nature of the public road, the county court
         vould *have no paver to exclude any menber of
          the public from Its reasonable use witinout leg-
          islative authority.
                 n . . . .

               “The Legislature, as the constitutional
          representative of the public, &q,?sthe power  to
          levy o?ly reesonable condition upon mqbers   of



I                                             ..




                                                         .
Honorable   H. Pat Edvards,   Pager9



     the public for th3l.r use of the public roads3
     but the county court, without express author-
     ltg,Jma   not such power. It cannot take such
     action as proprietor, and as a county court it
     has .no power to legislate.  The manner of its
     dlachargo of its trust cmea from the Leglals-
     ture.

          “It Is well settled thst every member of
     the publlo has the right to use the public
     road in a reasonable msnner for the pranotlon
     of his health and happlskaa.  Such USB, hov-
     ever, 1s restricted to a us3 with due care and
     in a reasonable manner.3

           As we interpret the authorities above quoted on
tha definition of a public road, it is our opinion that
tho desired restricted easement proposed to be acquired by
Dallas County for pedestrian use only would not constitute
in itself 8 public road or 8 part or portion of a Dallas
County public road. ~The county Eoad and Bridge Pond balng
expsndabie only for county public roads and bridges, it
vould follow that this fund may not legally be used for
the construatlon of any publla improvements other than pub-
lic roads and bridges.    PurthennopB, ln the event the con-
struction of the desired passage way would ln fact auount
 to the construction of a permanent improvement, the county
Caners1 Fund could not legally be expended therefor, but
 rather the procedure lnclaent to the use of the county Per-
zsnent Improvement Fund would have to be resorted to for
 the payment of the coat of said permanent construction.
 The absence of faota concerning   the type of structure oon-
 tanplated prevent further .dlacusalon of this matter.

           With reference to your fourth question, we think
 it should aleo be pointed out that whether or not a rall-
 road company nay voluntarily grant a public easement over
 Lts right-of-way which vould involve the construction of
 u over-pass   or an under-pass , over or under Its rlght-of-
 vay, depends on whether the railroad company owns its rlght-
 of-vay in fee simple absolute.    This department has held
 ln its opinion 210.~O-1110 that although the county or state
.,.I..




         .




             iIonorab1.eR. Pat Edwards, Page/O



             my have a dominant easement in the road right-of-vay,
             the title to the land and all the profits therefrom, not
             inconsistent vlth and subject to the easement, remain b
             the qvner of the soil.

                       Trusting   that the foregoing    fully answers your
                      ue are


                                                  Yours very truly

                                              ATTORLI     GEABRAL OF 'nims

                                              w&TzGc?a~~
                                                        chaster lx; Olllson
                                                                 AssiStant
