         THEATTORNEY      GENERAL
                 OF TEXAS


                         March 14, 1961

Honorable Q. F. Steger      Opinion No. WW-1017
County Attorney
Colorado County             Re:   Whether property already
Columbus, Texas                   appropriated    to one public
                                  use can be taken under
                                  eminent domain laws for
                                  another public us@ in the
                                  absence of a showing that
                                  the purpose of the taking
                                  can be aocompllehed in no
Dear Mr. Steger:                  other practical    manner.
      You state in your opinion request that Colorado County
1s contemplating   the condemnation of a lengthwise portion
of railroad   spur right of way located In an unpopulated area
of the county for the purpose of building a aounty road.      As
we understand the facts the county seeks to aoqulre that por-
tion of railroad   right of way from the intersectlon  of the
tracks and Farm-to-Market Road No. 950 in a aoutherly direc-
tion for almost a distance of one-half mile.
       Prior to the consideration  of condemnation the county
offered to purchase the needed right of way from the railway
company, which 1s not presently    in use by the railroad.   Sub -
sequently,   the company declined to sell stating that such
segment of the railroad    would be needed In the future.
     In,,your opinion request your conclusl$n Is that the right
of way         has not been abandoned . . . and you have ask-
ed the folio&g     question:
           “Can property already appropriated   to one
     public use be taken under applicable    laws of
     eminent domain for another public use In the
     absence of a showing that the purpose of the
     taking can be accomplished in no other practi-
     cal manner?”
     It is stated In Snellen v. Brazoria     County,   224 S.W.2d
305 (Civ. App., 1949, error ref. n.r.e.)     that:
Honorable   G. F. Steger,   Page 2 (ww-1017)


                   as a general rule, property appro-
     priated to-the public purpose cannot be taken
     for another public use without express or lm-
     plied legislative      authority when such taking
     results   in practical    destruction of the prior
     use unless the subsequent taking is for a
     public purpose of greater or paramount lmport-
     ante which cannot be accomplished in any other
     practical   way."    (Emphasis added)
     This rule was originally stated in Sabine & E. T. Ry.
Co. V. Gulf & I. Ry. Co. of Texas, 92 Tex. 162, 46 S.W. 784
    8).

      There 1s no applicable  statute conferring   the specific
authority needed by the county to condemn the desired portion
of railroad  right of way. In the absence of such authority,
to sustain a subsequent taking under a general power, there
must be a showing of paramount importance or purpose and that
the power can be exercised   In no other practical   way, We
accordingly  answer your question in the negative.
                       SUMMARY
     In absence of legislative    authority,  property
     appropriated  to a public purpose cannot be
     taken for another public use when such taking
     will destroy or materially     impair the prior use
     unless the subsequent taking is for a paramount
     public importance which cannot be accomplished
     In any other practical    way.
                                  Yours very truly,
                                  WILL WILSON
                                  Attorney General of Texas



WHPjr:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Edward A. Cazares
John C. Phillips
John Leonarz
Dudley McCalla
REVEIWED FOR THE ATTORNEY
                        GENERAL
BY: Morgan Nesbitt
