                      The Attorney                General of Texas

                                          August     20,   1980
MARK WHITE
Attorney General


                   Honorable Mike Atkins                    Opinion No. MW-22 3
                   Ector County Attorney
                   Ector County Courthouse                  Re: Whether a county may charge
                   Odessa, Texas 79761                      a fee for use of airport easement
                                                            granted in the past.

                   Dear Mr. Atkins:

                          You inquire about the authority of Ector County to charge a fee based
                   on gross receipts to airport related buanesses which operate from private
                   property adjacent to the airport. The county has in the past granted some
                   “through the fence operators” permanent easements to give them access to
                   airport nmways and taxiways.       You wish to know whether you may IXJW
                   impose the gross receipts fee on (1) the use of easements granted in the past,
                   and (2) the use of easements to be granted in the future.

                          You have sent us documents relating to the grant of an easement to a
                   “through the fence operator.”     The grant describes the property interest
                   conveyed as an easement to be used to build and maintain a permanent
                   airplane taxi-way and tie-down &ea. Some language in the grant might
                   indicate that the county only granted the privilege of using or improving
                   airport space for commercial purposes.        See V.T.C.S. art. 46d4(al(l).
                   However, the grant and your request letteascribe           the interest as an
                   easement, and cur opinion is based on the assumption that you have
                   correctly identified the property interest in question.     But cf. Southwest
                   Texas & International Flyim Club v. City of Del Rio, 324 S.W.2d 40 (Tex.
                   Civ. App. - San Antonio 1958, writ rePd nr.e.1 (public grants are strictly
                   construed against the grantee and in favor of the public). The grant recites
                   consideration of $10 and benefits accruing to the county and the general
                   public, and notes that the public has the right to use the taxi-way end tie-
                   down area subject to the grantee’s right to charge for the use thereof.

                          An easement is an interest in land. Settegast v. Foley Bros. Dry Goods
                   co., 270 S.W. 1014 (Tex. 1925). A public body must have statutory
                   authorization  in order to convey an easement.      Attorney General Opinion
                   H-47 2 (19741.   In  cur opinion,  Ector  County   hsd  authority to grant en
                   easement in the airport. Article 4663, V.T.C.S., provides in part:




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Honorable Mike Atkins - Page Two       (MI+223)




              Except as may be limited by the terms and conditions of eny
           grant, loan, or sgreement pursuant to Section 12 of this Act, every
           municipality   may by sale, lease or otherwise, dispose of any
           airport, air navigation facility or other property, or portion thereof
           or interest therein, acquired pursuant to this Act. [V.T.C.S. arts.
           4661 to 466221 Such disposal by sale, lease or otherwise, shall be
           in accordance with the laws of this State, or provisions of the
           charter of the municipality, governing the disposition of other
           property of the municipality. . . .

(Footnotes omitted). This provision applies to airports established by counties pursuant to
the Municipal Airports Act. See V.T.C.S. art. 4661(d). You have not informed us of any
terms, conditions, or agreement undertaken pursuant to article 46d-12, V.T.C.S., that
would prevent you from granting an easement over airport property.            Article 1269h,
V.T.C.S., gives the commissioners court additional powers over county owned airports:

              In addition to the power which it may now have, the Com-
           missioners Court of any county . . . shall have the power to sell,
           convey or lease all or part of any airport or property connected
           therewith, heretofore established or that may be hereafter esta-
           blished . . . to any person, firm or corporation. . . .

Sec. 1 (E). This provision was enacted at the same session of the Legislature as the
Municipal Airport Act and should be construed in harmony with it. Acts 1947, 50th Leg.,
chs. 114, 273. See Shaddix v. Kendrick, 430 S.W.2d 461 (Tex. 1968). In our opinion, these
provisions authze    the commissioners court to convey an easement over the airport.     We
need not consider the effect of article 46d-4, V.T.C.S., which empowers the county to
enter into contracts or leases for a term of up to forty years authorizing persons to use or
improve airport space for commercial purposes.

      When the county conveys an easement to any person, it must receive adequate
consideration in order to avoid violation of constitutional prohibitions against the grant of
public funds. See Dodson v. Marshall, 118S.W.2d 621 (Tex. Civ. App. - Waco 1938, writ
dism’d); AttorneyGeneral   Opinions H-520 (1975); H-472, H-403 (1974). The determination
as to the adequacy of consideration is for the commissioners court in the first instance.
The county may require es consideration for the grant of an easement snnual payments
based on a percentage of gross revenues derived from the commercial operation allowed.
See Earl Hays Rents Cars v. City of Houston, 557 S.W.2d 316 (Tex. Civ. ‘App. - Houston
Et Dist.] 1977, writ rePd n.r.e.).

      However, we do not believe the county may now exact additional consideration for
the permanent easements it granted in the past. It does not contend that the grantee has
used the easement in a manner inconsistent with the public use of the airport or otherwise
used it in ways not within the grant. An easement is the property of the grantee. See
Texas & P. Ry. Co. v. City of El Paso, 85 S.W.2d 245 (Tex. 1935) (easement in streets
granted by city to railway is taxable as real estate). A county is bound by its valid
conveyances of property.   -See Mortgage Investment Company of El Paso v. Bauer, 493




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    Honorable Mike Atkins - Page Three        (MW-223)




    S.W.2d 339 (Tex. Civ. App. -. El Paso 1973, writ rePd n.r.e.); Seaway Company
    Attorney General, 375 S.W.2d 923 (Tex. Civ. App. - Houston 1964, writ rePd n.r.e.1. ii
    the county wishes to recover pcesession of the easement in order to convey it ai new
    terms, it must compensate the easement owner for his property. Tex. Const. art. I, S 17;
    State v. Me er 403 S.W.2d 366 (Tex. 1966); Mlllar v. Snellen, 224 S.W.2d 311 (Tex. Civ.
    don               1949, no writ).

                                            SUMMARY

                   A county may not charge additional consideration for the use of an
                   easement over an airport validly conveyed in the past. The county
                   may convey an easement over the airport in exchange for sn annual
                   charge.




                                                         MARK      WHITE
                                                         Attorney General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

        Prepared by Susan Garrison
        Assistant Attorney General

    APPROVED:
    OPINION COMMlTTEE

    C. Robert Heath, Chairman
    David B. Brooks
    Walter Davis
    Susan Garrison
    Rick Gilpin
    William G. Reid




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