                                            June 22.2000



The Honorable Gary L. Walker                        Opinion No. JC-0238
Chair, Committee on Land
  and Resource Management                           Re: Whether a county may permit the installation
Texas House of Representatives                      of temporary water lines along its right-of-way
P.O. Box 2910                                       (RQ-0164-JC)
Austin, Texas 787682910


Dear Representative   Walker:

         You have asked this office two related questions concerning whether the commissioners
court of Martin County may permit the installation by oil companies oftemporary water lines along
the county’s right-of-way. In our view, the resolution of the first of these questions is governed by
a recent opinion issued by this office, Attorney General Opinion JC-0179 (2000), and that of the
second by general principles of property law as articulated by section 478 of the Restatement of
Property. In both cases, while we can outline for you the relevant law, the ultimate determinations
in particular instances will depend upon the resolution of factual questions, an activity in which this
office does not engage in the opinion process.

        You explain the situation giving rise to your first question thus: “In Martin County, the
county commissioners allow oil companies to run temporary water lines along the county right-of-
ways. Individual landowners have protested, asserting that the county does not have the right to
use their right-of-ways for this purpose.” Letter from Honorable Gary L. Walker, Texas State
Representative, to Honorable John Cornyn, Attorney General ofTexas (Dec. 15,1999) (on tile with
Opinion Committee) [hereinafter “Request Letter”].

         We note at the outset that your question concerns the temporary placement of water lines to
benefit an oil company, rather than the placement of public utility lines. It is well-settled as a matter
ofboth statute, see,e.g., TEX.UTIL.CODE ANN. $5 181.005,      ,042,,082(Vernon 1998), and case law
that the easement in a public right-of-way provides for more than surface travel, whether on a rural
road or a city street:

                In either case the responsible officials may, within the limits of the
                power vested in them by the Legislature, authorize the use of the
                subsurface for sewers, pipelines and other methods of transmission
                and communication that serve the public interest. This was taken for
                granted when the Legislature provided that public utilities might lay
                their water, gas and electric lines under public roads and city streets
                after notifying or obtaining the approval of the proper agency.
The Honorable   Gary L. Walker    - Page 2         (JC-0238)




Hill Farm, Inc. v. Hill County, 436 S.W.2d 320,323 (Tex. 1969); accord Grimes v. Corpus Christi
Transmission Co., 829 S.W.2d 335,336 (Tex. App.Xorpus        Christi 1992, writ denied); Blackburn
v. Brazes Valley Utils.,Inc., 777 S.W.2d 758,759 (Tex. App.-Beaumont    1989, writ denied); Pittman
v. City of Amarillo, 598 S.W.2d 941, 944 (Tex. Civ. App.-Amarillo     1980, writ ref d n.r.e.). The
county’s rights in this regard do not depend upon how its easement was obtained: “[A] highway
easement acquired by prescription is no less comprehensive than one acquired by grant, dedication
or condemnation.”    Hill Farm, Inc., 436 S.W.2d at 323-24.

        However, the county’s roadway easement does not as a matter of law include a right to grant
a further easement to nonowners of the property to install pipelines for the nonowners’ private
benefit. In Hale County V.Davis, 572 S.W.2d 63 (Tex. Civ. App.-Amarillo      1978, writ ref d n.r.e.),
the owners of land subject to a prescriptive easement for a county road sued both the county and
nonowners to whom the county had granted a pipeline easement along the right-of-way. The court
held that easement to be a nullity, on the ground that “the county possesses no authority in law to
grant an easement in the road’s subsurface owned by an individual for the exclusive private use of
a nonowner.” Hale County, 572 S.W.2d at 65.

         A situation analogous to the one about which you ask here was presented in Attorney General
Opinion JC-0179 (2000). In that case, we were asked a series of questions concerning the right of
the Tarrant Regional Water District to lease to a private telecommunications    carrier excess capacity
in a fiber-optics cable installed to operate the district’s pipeline. We responded:

                “The test whether an easement acquired by a public body may be
                burdened with” a particular use is whether the grantor reasonably
                could have contemplated such a use as within the easement at the
                time the easement was granted. The understanding of the parties to
                the easement may be relevant to the [grants’] construction, and that
                understanding cannot be decided without examining factual evidence.

Tex. Att’y Gen. Op. No. JC-0179 (2000) at 3 (citations omitted).

        Whether the particular grants     of easement in this case are sufficiently expansive to permit
the county to use the right-of-way in     the manner you suggest depends, that is to say, on the terms
of the grants and the intentions of the   grantors. Such determinations require fact-based inquiries of
the sort in which this office does not    engage in the opinion process.

        Attorney General Opinion JC-0179 came to a similar conclusion with respect to the related
question ofwhether the right-of-way grantors were entitled to compensation for an increased burden
on their land:

                Just as the question of whether a        particular easement permits the
                Water District to install fiber-optics    cable or to lease its excess ftber-
                optics cable capacity, the question      of whether the easement grantor
                must be compensated          for the     installation   or lease involves
The Honorable    Gary L. Walker - Page 3              (X-0238)




                 must be compensated         for the installation   or lease involves
                 interpretation of the easement itself and the resolution of numerous
                 fact questions. Where an easement is granted for general purposes,
                 the subservient estate includes the use required at the time of the
                 grant as well as the right to use the easement for any purposes
                 incidental to the use to which the property has been put.    Whether
                 a secondary use constitutes an additional burden forwhich the grantor
                 must be compensated is a question that cannot be resolved in the
                 opinion process.

Id. at 5 (citations omitted).

        As we have said, the roadway easement does not as a matter of law include a right for the
county to grant further easements to nonowners. See Hale County, 572 S.W.2d at 65. Whether as
a matter of fact such a further grant was within the grantor’s contemplation in a particular instance
is a question we cannot consider in an attorney general opinion.

         Your second question is “whether.        the county’s use of the right-of-way would apply to
prescription roads.” Request Letter, supra, at 1. By prescription roads, we understand you to mean
roads in which the county has acquired its right-of-way by prescriptive easement. We note again that
such an easement “is no less comprehensive             than one acquired by grant, dedication or
condemnation,”    Hill Farm, Inc., 436 S.W.2d at 323-24. Because, however, such an easement will
not bear the indicia of a grantor’s intent, its scope cannot be determined by the terms of a grant,

        We have located no Texas cases dealing precisely with the scope of such an easement, and
accordingly turn to the Restatement of Property for our analysis. We note that the Restatement has
in other instances been used as a source of law in Texas cases. See, e.g., Houston Bellaire, Ltd. v.
TCP LB Portfolio Z, L.P., 981 S.W.2d 916 (Tex. App.-Houston [lst Dist.] 1998, no pet.) (relying
on section 476 of Restatement for guidance with respect to standards applicable to reciprocal
easements).

       In place of the terms of a grant, section 478 of the Restatement of Property offers another
method of analysis for the scope of easements acquired by prescription:

                         In ascertaining whether a particular use is permissible under
                 an easement created by prescription a comparison must be made
                 between such use and the use by which the easement was created with
                 respect to:

                      (a) their physical character,

                      (b) their purpose,
The Honorable   Gary L. Walker - Page 4            (JC-0238)




                    (c) the relative   burden   caused   by them   upon   the servient
                tenement.




         An easement for surface travel is, of course, different from an easement for the subsurface
placement ofwater lines in both physical character and purpose. Accordingly, the question here, as
in the case ofthe right-of-ways obtained by grant or dedication, will turn upon whether the proposed
use creates a substantial burden upon the right-of-way; and again we cannot answer such a fact-based
question in an attorney general opinion.

        However, we note again that if the sole basis upon which the county believes that it may
provide this easement to the oil company is its right - whether acquired by grant or prescription ~
to permit the use of the right-of-way for the laying of public utility lines, Hale County v. Davis is
to the contrary. As the court said in that case, “the county possesses no authority in law to grant an
easement in the road’s subsurface owned by an individual for the exclusive private use of a
nonowner.” Hale County, 572 S.W.2d at 65.
The Honorable Gary L. Walker       - Page 5     (X-0238)




                                        SUMMARY

                       A county’s right to allow placement of public utility lines on
              or under the right-of-way does not give it as a matter of law the right
              to grant an easement to a third party nonowner for that party’s private
              benefit. Whether a county may grant an easement in a particular
              instance to a third party to run a temporary water line on the county’s
              right-of-way will depend upon the intent of the grantor from whom
              or the kind of adverse use by which the right-of-way was acquired,
              and upon whether the grant of this secondary easement is an
              additional burden on the servient tenement.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
