.    .-_




                                   Maroh 21, 1958



    Honorable W.W. Kilgore                      Opinion Ho. WW-391
    County Attorney
    Victoria County                             Re: Authority of the
    Victoria, Texas                                 county to condemn
                                                    a right of way eaee-
                                                    ment over a railroad
                                                    -I%*h -0i'wuy zzn~*L%*~'L~rg
    Dear Mr. Kllgore:                               of four or more tracks.
                In a recent request Tor an opinion of thla~oi-
    rice, you ask whether Victoria County, under Articles 1149
    and 119, Vernon's Civil Statutes, 18 authorized
                  "to condemn an eacpementover a rall-
             road right oi way CennkFtl~ two streets,
             whlah propesed croseing rpuld croonsfour
             tracka and an additional track or syPurwhich
             goes to a loading ramp, being five tracks in
             all, in a community or unincorporated  town
             or city".
                       Artloles 1149 and 1150   of Vernon'8 are Articles
    1149   and   11%     of the Revised Civil   Statutea of Texas, 1925.
    They read:

                  "Art. 1149. Condemnation for hl&ghways.
             --Any tern or village In thle State, lncor-
             porated under 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 railroad company whose
             roadbed runa within the corporate llmlfs of
             suah town or village, when deemed neceseary
             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; provided, there are lees than four
             railroad tracks. Falling to agree en the damages
Hon.   W.W.   Kllgore, page   2 (W-391)


         to be paid therefor, the mayor shall prepare
         a statement In writing ehowlng the point on
         eaid railroad right of way where said atreet
         Is desired to be opened, widened Qr extended,
         giving the width and length of that portion
         of the right of way of the railroad sought to
         be oondemned, and daecrlblng It eo that It can
         be clearly Identified, the object for whloh It
         Is sought to be condemned, the name and style
         ol the railroad uompany, and file the same with
         the county judge ef the county In which auah
         town or villa@ Is sltuated, whereupon proceed-
         ings shall be had to condemn said right of way.
          Acts 1897, p. 216; Q.L. Vol. lo, p. 1270)."
         fEmphasis added.)
               "Art. 1150. Commissioners court may con-
         demn .--County commissionera shall have the
         right, upon petition of twenty freeholder8 of
         any oommunlty, or unlnaorporated town or city,
         to condemn roadbed of railroads for the Bame
         purpose mentioned in the preaedlng article.",
             Artlales   1149 and 1150 were originally paesed
by the LeglrrlatureaB one act--Acts 1897, 25th Legislature,
page 216, chapter 151. It Is therefore proper when later-
pratlng Articles    1149 and 1150 to look to this original rat
and likewise to consider said Articles    to be in para aaterla.
39 Tex.Jur. page 263, Stats. i3139; 39 Tex.Jur. page 253,
Stata. g 135. When this Is done we see that the primary ob-
jeatlve of the.orlglnrl enactment    was to enable     towna, vll-
la$ea and population    centers to remove obatructlona      caused
by railroads to public streets in their respective area8
through the medium of'eminent domain. However, a qualifica-
tion wae placed upon the method of achieving this primary
objective, condemnation was authorized Qver no more than
three railroad tracks. Article 1149 and 1150 carried Into
codiricatlon the purpose and methods of the original rat.
From an historical view It becomes obvious that the Leglsla-
ture in enacting Article 1150 intended to confer to ,unlncor-
porated town8 or communltles in the county only such condem-
nation powers a8 were konf'erredto incorporated towns and
villages by Article 1149, i.e., the right to condemn a rrll-
road right of way consisting of less than four rallrQad tracks.
It would Indeed be illoglaal to assume that the Legislature
by this enactment Intended to grant to unincorporated commu-
nities greater condemnation powers than it granted to the
more densely populated Incorporated communities in the county.
Clearly the restriction on the number of tracks that may be
condemned under Article I149 applies to Article 1150.
Hon. W.W. Kllgore, Page 3 (WW-391)

             This oi'llce,in Attorney Qeneral’s Opinion No.
O-5352, 1943, has held that Articles 1149 and 1150 grant to
the county commissioners court the power to condemn railroad
rights of way over no more than three traaks. We believe that
opinion to be correct In thlnrrespect. Therefore  we inform
you that Victoria County does not have authority under Articles
1149 and 1150 to condemn an easrementIn an unincorporated com-
munity over a railroad right or way to connect two streets
which proposed arossing would croaa four tracks and an ad-
ditional spur track making live tracklsIn all.
                            SUNNARY
       Articles 1149 and 1150 do not authdrlze the
       County Comm1saloners Court 0r Victoria County
       to condemn a right of way across a railroad
       right of way consisting of five railroad tracks.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney (leneralof Texaa



                                      Milton Richardson
                                      Assletant Attorney Qeneral

iYR:dhs:bh
APPROVED:
OPINION OOMMITTEE
Gee. P. Blackburn, Chairman
Ceail C. Rotsch
Mark McLaughlin
John Ii.Minton, Jr.
RBVIRWED FOR THE ATTORNEY
(IKNERALBY:
      W.V. (3eppert
