                       October 26,   1962



Honorable Samuel W. Freas      Opinion No. ~~-1460
Criminal District Attorney
Polk County Courthouse         Re: Whether a county is liable to
Livingston, Texas                  a pipeline company for expenses
                                   incurred in encasing and vent-
                                   ing that portion of its pipe-
                                   line which lies in a pre-exist-
                                  ,ing easement under property ac-
                                   quired for the location of a
                                   new road, when neither the
                                   county nor the State Highway
                                   Department have required that
                                   the pipe be encased and vented.
Dear Mr. Freas:
     This will acknowledge your request for an opinion on the above
subject.
     As we understand the problem, a pipeline company has for some
time owned an easement for pipeline purposes under certain prop-
erty in Polk County. Under the Farm to Market Road program, the
State Highway Commission designated a new location for Farm Road
2714, subject to the condition that Polk County furnish or acquire
right of way clear of obstructions and free of cost to the State.
This new location will cross the pipeline easement at approximately
right angles, and the pipeline company is contending that the
county should pay the expense for encasing and venting the pipe
for that portion of the line over which the new road will pass,
although neither the County nor the State Highway Department have
required that the line be encased and vented. The county has ac-
quired from the owner of the fee the right of way for the con-
struction of the road, but has not attempted to acquire, by pur-
chase or condemnation, any rights from the pipeline company in
connection with the construction of the road across its pipeline
easement.
     This office has on several occasions held that a pipeline
company cannot be required to encase and vent that portion of its
pipeline which lies within a prior or pre-existing easement under
property subsequently acquired by the county for roadway purposes,
without compensating the pipeline company therefor. Opinion No.
W-1090 (July 12, 1961) and opinions cited therein. In those
Mr. Samuel W. Freas, Page 2 (~-1460)


opinions the lowering, encasing or other alterations in the exist-
ing pipeline were required by the County or State and the expenses
were incurred in meeting such State or County specifications. In
the instant situation neither the State nor County have required
that the pipeline be encased or vented, and accordingly we are
presented with a situation different from those dealt with in the
prior opinions.
     It is well established that an oil pipeline easement is
"property" within the constitutional provision prohibiting the
taking or damaging of property for public use without adequate
compensation, Magnolia Pipeline Co. v.City of Tyler, 348 S.W.2d
537 (Civ.App. 1961, error refused). Therefore, the only question
that here needs to be decided is whether the construction of the
road across the pipeline easement amounts to a "taking or damag-
ing" in the constitutional sense, or is such an interference with
the company's private property right in the easement as to amount
to a taking or damaging which would require adequate compensation.
     "Damage" is defined in the Magnolia Pipeline Co. v. City of
Tvler case, supra, as follows:
        "By damage is meant every loss or diminution of what
     is a man's own, occasioned by the fault of another,
     whether this results directly to the thing owned, or be
     but an interference with the right which the owner has
     to the legal and proper use of his own."
     The general rule regarding situations of this type Is set
forth in Nichols, The Law of Eminent Domain, (Third Edition), Vol.
2, Sect. 5.4 fil, page 56, as follows:
        "While in (most) jurisdictions the concurrent use of
     the property of a public service corporation is a tak-
     ing, when such a corporation owns Only an easement in
     the land which it occupies, the Imposition of another
     easement upon the same land which does not interfere
     with the complete and undisturbed enjoyment of the
     original easement, although it may constitute a taking
     of the property of the owner of the fee, as it Is not
     an invasion, destruction or use of the easement, is not
     a taking of the property of the first corporation in the
     constitutional sense. If there is an interf rente with
     the o&g&,&J use . there is a t&j.na on v to Fhe extent
     of such merference .' (Emphasis adde:.)
     In the interest of safety and the preservation and develop-
ment of highways, the Texas Highway Department issued Administra-
tive Order No. 12-56, establishing its policy on pipeline encase-
or. Samuel W, Freas, Page 3,(k%1460)


ment at rural highway crossings.   The pertinent portion of this
order reads as follows:
     "U.S. AND STATE HIGWAYS
              All gas and liquid fuel transmission lines shall
           he encased as prescribed in Item '1' for EXPRESS-
           \lAYS,except that only one vent is required where
           length of casing Is not over one hundred and fifty
           (150) feet. Gas distribution lines which do not
           carry a pressure of over 50# p.s.i. and which are
           not over six (6) inches In diameter, may be uncased
           provided the District Engineer approves the depth
           and quality of construction. All other gas distri-
           bution lines shall be encased throughout their
           length between outer roadway ditches, toe of slopes,
           or not less than five (5) feet behind outer curbs,
           whichever is greater.
     ***

     "FARM ROADS
              All pipelines carrying gas or liquid fuel shall
           be encased as prescribed in Item '1' for U. S. AND
           STATE HIGHWAYS, with the exception that for exist-
           ing pipelines of this type the District Engineer
           may approve an adequate reinforced concrete slab
           cover or other eouivalent protection in lieu of
           casing or casino extension.." (Emphasis added.)
     We are advised that the line here involved is a 24" gas pipe-
line and that when the road construction project was in the early
stages, the Texas Highway Department Resident Engineer notified
the pipeline company that the road was to be built and went with
a representative of the company to the site where the road would
cross the pipeline. The Resident Engineer showed the pipeline
company representative that there ,wouldbe an 8 or 9 foot fill
over the line and advised him that the Highway Department would
not require casing. The representative of the pipeline company
advised the Resident Engineer that the company wanted the line
cased and was going to case it, which the company subsequently
did.
     It is apparent that the Highway Department concluded that the
8 or 9 foot fill over the line amounted to "other equivalent pro-
tection In lieu of casing or casing extension' as provided in the
above quoted administrative order, but the pipeline company con-
sidered that safety factors and its own operating policy require
Mr. Samuel W. Freas, Page 4 (~~-1460)


the casing and venting of the line at this point. In this connec-
tion, the operation of a gas transmission line, carrying a highly
combustible material, is considered to be dangerous, Lane v.
Communitv Naw1    Gas Co., 133 Tex. 128, 123 S.W.2d 6-g),
and it has been held that a gas transmission company has the obli-
gation to exercise ordinary care for the protection of excavation
or road construction employees involved in constructing a highway
over the gas line, Pioneer Natural Gas Company v. K & M Paving
Comoanv. 359 S.W.2d 533, (Civ.App. 1962).

     From what has been said, it appears that this office is being
asked to decide a fact question, which is not a function of this
department. It seems clear that the company would not have gone
to the expense of encasing and venting its pipe at this point ex-
cept for the construction of the road across the easement. Never-
theless, we cannot say from the facts presented that construction
of the new road at this point actually hinders or interferes with
the operation of the pipeline, or prevents the continuing use by
the company of its pipeline easement at the present time substan-
tially as well as in the past. Nor can we say that encasing this
line is either a necessary or an unnecessary precaution, consider-
ing the 8 or 9 foot fill covering the line at the road crossing
and also considering the duty owed by a gas transmission company
to the public traveling over this road and to maintenance or con-
struction crews working in the right of way in the vicinity of
the crossing.
     In a similar case, Sinclair Pipe Line Co. v. Archer County.
Texas, 147 F. Supp. 650 lN.D.Tex. 1957), 245 F.2d 79 (5th, 1957),
cert. den. 355 U.S. 862, it was held that the counts was not
liable for expenses incurred by a pipeline company in voluntarily
readjusting and altering its lines because of highway construc-
tion, the court pointing out in 147 F. Supp. at page 654 as
follows:
     "The fee owners of the land, subject to plaintiff's
     pipeline right-of-way, were legally competent to grant
     a later right-of-way for a public highway, either over-
     lapping or overlying the plaintiff's pipeline right-of-
     way, if such additional use would not unreasonably hinder
     the riohts of olaintiff as owner of its right-of-wax.
     Apparently, no contention is made that the construction
     and use of the highway improvements, at places where the
     highway right-of-way and the pipeline right-of-way are
     in-juxtaposition, has been found inconsistent with the
     continuing use of the pipeline right-of-way substantially
     as well as in the past." (Emphasis added.)
-   ,




    Mr. Samuel W. Freas, Page 5 (Ed-1460)


         We accordingly are of the opinion that if construction of the
    road does not interfere with the pipeline company's use of its
    pre-existing easement and that if encasing and venting of the
    pipeline Is not necessary from a safety factor, then the county is
    not liable for the expense incurred by the pipellne company on its
    own volition; otherwise, the pipeline company's pre-existing prop-
    erty right has been damaged to the extent of the expense incurred
    and the county is liable therefor, pursuant to its agreement to
    furnish the right of way clear of obstructions and free of cost to
    the State.
                              SUMMARY
         A county is not liable to a pipeline company for expenses in-
    curred in encasing and venting that portion of its pipeline which
    lies in a pre-existing easement under property acquired for the
    location of a new road, when neither the county nor the State
    Highway Department have required that the pipe be encased and
    vented, unless the construction of the road in fact interferes
    with the pipeline company's use of its pre-existing easement or
    encasing and venting the pipe is necessary for safety purposes.
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas




                                        Assistant

    MN:da
    APPROVED:
    OPINION COMMITTEE
    W. V. Geppert, Chairman
    Scranton Jones
    Malcolm Quick
    L. P. Lollar
    W. 0. Shultz
    REVIEWED FOR THE ATTORNEY GENERAL
    BY: Leonard Passmore
