~Honorable Clyde E. Smith; Jr.             O&ion N+:M- 192
County :Jttorney                            ..,
Tyler County Courthouse                    ‘Re: ,Wh&her Tyler County or
Wood’vilSe. Texas 75979
                     .--    .-                  thkutllits company must
                                  .’            War,,the ekpensi oi re-
                                                locating‘poles and other
                                                facll+tles of the utility
                                       .        company:.lncldentto the
Dear Mr::,&ith:            ,,’                  widening of a public road.
         ‘1x1your ~~ep&it~fdr opinion of this offic’eyou present
the following queetldns whlah are.restatedaa follows:
           ‘1.. Is the:~utillty’      oompany or.the, cqahty re.sponslble
            for the, soe$ of ‘re&ocatin&pdles ena other facilities
           :ofthe util$ty .~aompany       nece.tisitated,
                                                       by .,the
                                                              ,nidening
            OS ,a~coqntyroad ~$$’such polea~,aix3     f,acllltlesare
            loo&ted on the ,r%.,right-of+way in &IIarea covered
            by 3 ~3trlttim    &id reoolided&i&nent dbtaihed by the
            utlllt,
                 ” t.    coinp&ny          adjpl+ig ‘property,ownersub-
                                 :f~orn’~‘.kiq
            sdquqn   ~, ~t&.thdj$bl’ic,: a0duir’lngthi:~~~+A.ng road
            rlg@t;of-*a? ,by prdec+ptlq,p?
           2.. D@s~..$ong_.uee,
                             iof.a .pox$$on.of.*such’s roak right-
           .@-way,,;:pi%?vioueSjr
                               it$qu$+,,b,y:,$,hepubl,$c,
                                                        ,by,
                                                           pres-
           oriptipn~ b&ide.q
                           &@~:~3cor&d    ,e+sement give, the
      .’   .util*ty~:.,cti&ny
                            pre;eciilpt$v*
                                         ,rlghtd. to’,%hat~portion
           6f %he .tioap
                       :Y,x$ght
                             -o$+w&y:actu&lly~ueed’by’-them   for
           dole& ‘tid.other:facliltles’?
           In r&krd to these quest&&; jou adilae that subsequent
 to .,the’
        pUbl$o acquislng~.the right-of’-ivay
                                           in question by prescription,
~adjtil~l~property otineregave krittin:eastimeh$e.to  a utility company
_foP.$hd erectioh OT.poles.‘and other,‘lacilitiee,.wlthin
                                                        the limits of
 the PredcriptiCe‘z%-id right-6f4ay Andythat these utility line ease-
 ments have,beenon record for a number of yeara and that the poles
 md other,tacilitieu ,were. erected a number ,ofyeara ago within the
 limit8 Of thd iWescriptiveroad right-of-way. This opinion is baaed
 Updn such stated facts, assuming the 8ame to be as etated and this


                                 -915-
Hon. Clyde E. Smith, Jr., page 2     (M-192)


office has made no Investigation or finding as to such prescriptive
rights.
           As to such poles and other Sacllitles located within the
rights-of-wajr of public roads, Article 1436a, Vernon’s Civil
Statutes provides, ln part, aa follows:
           n    .The public agency having jurledictlonor
     control if a highway or county road, that la, the
     HIghway Commission or the CommissionersCourt, as
     the case may be; may require any such corporation,
     at It,8own expenae, to re-locate Its lines on a
     State highway or county road outside the limits of
     an incorporatedcity or town, 60 a8 $0 permit the
     widening of the right-of-way, changing of traffic
     lanes,,lmprovement. of the road bed, or Improvement
     OS ‘drainageditches located on,such right-of-way by
     giving tiilrty(30) days wrltten notice to such cor-
   ‘,.
     poratlon and specl?ylng the line or lines to be
    ,moved, and indicating the place on the new rlght-
     OS-wq where such line or lines may be placed,
     . . *
          A person owning property encumbered by a prescriptive
.eakementconveys or transfers any Interest In the same subject to
ruch encumbrance. A purchaser of property subject to an easement
that 18 openly used la charged with knowledge of the existence of
the easement.   Miles v. Bodenhelm, 193 S.W. 693.(Tex.Clv.App.1917,
sami-es.)   The alght     f structures or other vlsable objects such as
roads, wires or ~poles’cbnnected    with or on land may reasonably sug-
gest the existence of an easement. mrkley v. Christian, 226 S.W.
150 (!Cex.Clv.App.    1920, dimi. w.o.j.)
          ;Ztik the.‘oplniofiof this office that a utility company
pukhaelng an easein&t’.upon,an  area lying within a prescriptive
road right-of-way would .do so with notice of the public easement
and would take ‘kach‘easementsubject to such encumbrance,which
in,turn would render’the relocation of the poles and other facilities,
neoeeaitatedby the widening of the right-of-way, subject to the
terms of Article 1436a.
          It Is, ‘therefore,the opinion of this office that the
utility company and.not the county, under such circumstances,would
be responsible for the coats of relocating such poles and other
facllltlee.
          Article 5517,   Vernon’s Civil Statutes, provides a8 fol-
lows:

                             -916-
.




    Hon. Clyde E. Smith, Jr., page 3 .(M-192)   :



                  "The right of the State, all counties, lncor- ~'
            porated cities and all school districts shall not
            be barred by any of the provisions of this Title,
            nor shall any person ever acqulrt, by occupancy or
            adverse possession, any right or title to any part
            or portion of ariyroad, street, alley, sidewalk,
            or grounds which belong to any town, city, or county,
            or ,whlch have been donated or dedicated for public
           use to any such town, city, or county by the owner'.
          'thereof,or which have been laid out or dedicated
            ln 'a?ymanner to public use Inany town, alty; or
            county In this State.
                                                    z.
              ! The rights of the public ln,a p+escrlptlve road ease-
     ~mentrest on adverse, continuous, and uninterruptedu8e, which
     will ralsea preeumptlon that the owner of the ltid granted the
     easement, arrd'thatthe evidence of the grant'has been lost. Such
     a U8e raises an lrrebuttable'presumptlonof grant. Alexander v.
     Schleicher    County, 291 S.W. 263 (Tex,'Clv.App.1927, affirmed
     ~:~ex.Comm.App. 1928); Rhodes v. Whitehead, 27 Tex. 304 (18
    .and Shepard v, Qalveston,A. & H.R. C0.3 22 S.W. 267 (Tex.Clv.App.
     1893, no wrio~~..
             'It l'sthe opinion of this office that your second ques-
.' tlon should be answered In the negative lnasmuoh as %ch use by        #
   the utility company under its recorded easement could never ripen
          prescriptiveright against the public by reason of said
    lntti'ir
   Article 5517.
  :
                         .SUMMARY
               ,The utility company is responsible for the costs
         of relocation of their poles and other facllltles ln-
         cident,to   the widening of a county road'where such poles
         and'facllltlesare located on a prescriptive road rlght-
         oi-wa$ In an area aovered by a written and recorded.ease-
         mi?ptobtained by such utl3lty company from adjoining
         property owners subsequent to the publla acquirzu",f:
         existing road right-of-way by prescription.
         o? such portion of the road right-of-way~bysuch public
         utility company under a recorded easement could not
         give the,utllity company any prescriptive rights to
         any portion of the road right-of-way actually used
         by It for polee and other acllltles.
                                   /9
Eon. Clyde E. Smith, Jr., page 4   ( M -1 92)




Prepared by Charles W. Yett
Assistant Attorney &meral
APPROVED:
OPINION COMU!l'TER
 Hawthorne Phllllps, Chairman
 Kerns Taylor, Co-Chairman
 Don Cumngngs
 Jack Sparks
.DavldLongorla
Harold Keqnedy      .'
A. J. ~ARtXS.81,
              JR.
Staff',Legall,Asslstant
