I




            OFFICE     OF THE ATT’ORNEY GENERAL           OF TEXAS
                                     AUSTIN




    lion, Julian Montgomery
    State Highway Engineer
    Austin, Texan
    Dear Mr. Montgomery:




         state    highway?




                                                , Texas Highway
                                                eta and develop

                                              questiona   you stated:


                                   built, and maintained by the
                                it, hee been our experience that
                               ose days rarely ever obtained
                                to the r Qht of way ior such

                 And you further   stated:
              WOW, a8 highway construction  has progressed
         through the years slnoe 1917, the Highway Commis-
         slon has seen fit to rebuild Borneof the highways
Hon. Julian    Montgomery, rage I!


        which formerly were oounty roads, on new looa-
        tlons,   and find6 Itself  la paseeslon   0r ralu-
        able 011 lands, which no lower are needed for
        hl&way rl6ht of way pur sea.        Xany of the
        tract6 are 8~~~11laolate r areas whloh oould not
        be utllleed    by counties EII e part of the county
        rood Syetemr~
             Vi@ take it from the above quoted portion of your letter
that nolie Of the troota in question were scoured by an outright
deod in fee simple from the fee omer to the county or state and
cnswer your questions on that aerumptlon.       Therefore   the most
that the state oould own under the ciromstanaos        would be an
~~~ene~~n”,dhi$$we~urpoSOS.         %ium,, when the road 18 closed
                          t to use aud oocupy the land would rovort
to the owner free and clear of the sasemsnt end the state would
have no rightto retain      6aae for other purpoaee, us the state
                     ht to UIe such land eroept for highway purposes.
nover
The feehedslrap
             “p e‘Yt tle burdened with the easement remained in the
owner thoroor ,frt the tlmo the essement was oreutod, his heirs
and nssl~ns.      Ahis Is tme whether the easement wea aoqulred by
dedication from the owner ior roadway purposea, aOqulre6 by pur-
chase of o rlcht of way for roadway purposes, coodomed under
the law of oninent domln for roadway purposes, or established
by prasorlptlon.

             irt 10lo 3Z70, gevlsod Civil Statutes of 1926, under
Title    62, “mlnent 5mml.n”, provides8s follaws:
              mzxoept wbere otborwlso expressly provided
        by law, the rlcht asoured or to be 8ecurod to
        any oorporatlon or other pimtirr      in thl~ Gtete,
        ln the mannerprovided by this law, shall not be
        so construed as to include the fee simple esttite
        In lends   either pub110 or private,   nor ahall the
        SW be ioet by the forfoituro     or orplratlon  or
        the uharter, but ohall rmln     subjeot to an 0x1
        teuslon 0f the charter of the grant of a new
        charter without a new c0nd0anat10n~"
            In the oese of Celvort of al., vs. liarrle County, 46
8, w . (2d) 375, decided by the Court or Clvll 1ip 0~1s at Galves-
tons wherein the defendants In a oondennntlon s-upt by the county
meI&     t,o condmn 0ertal.n of his land for road ptiposm   Oon-
tended ‘that ha wao entitled to the value of the minerale under
the lad t&en,     the court In overrulinc his ContentiOn used t&Q
Eon. Julian       Montmmery,    rage 3


         “The lttlod   rule is that in ooaber~~tlon
     prooeedl~r   only aa easement is ao@red    and that
     suoh saroment is all that the law requires   to be
     paidior.”
               Ve find     in T&as JUdB&WUdenoo the followlne      l~us.go~
            Wbder the law of eminent doaeln a highway
     easement only ls ao uired b condemaatlon~ the
     foe remains re8tea & htidose            TO rty was oon-
     damed,      idso,   the pub110 r lfht P8 $Ut 0ll OeBO-
     mont when the roadway is ded oated by tho owner
     or aoqulrod b&pT:;h";v           establlBhed by pre-
     soriptlon.~
     w~waysm.          2100 al;0 60&E
     #L& l~g           l



     i2dl       457
     al.       YI. G
     B1880ur1,         7
     undOI-.

          In answer to your rlrst         question, it is the opinion
of this dopartmnt that the state          only has an oasanont for road
right of way purposes.
           For the reasons expressed in our answer to your first
c,uestIon your seooad on4 third quostlon8em answered in the
negatlrer
           Ii ws are wron& in the 688UnptiOn that non0 ot the
tracts in question wsre deeded in fee 8lsi1Ao to the aountlss or
to ths state   then p10ase furnish us tith ooplos o? such deeds
as you haye )or our construction  and further Opinion.
                                                   Yery truly   yours



                                               w                D. D. Xmbon
                                                                  Assistant
               AFGe7z                      ’
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