            THE      ATTORNEY                     GENERAL
                            OF TEXAS


                                May    22,   1957




Honorable  Fred F. Holub
County Attorney
Matagorda  County
Bay City,  lkxae
                                Opinion No. WW-125

                                ReS     Authority    of County to relm-
                                        buree Pipe Line Company ‘for
                                        expenses    Incurred   by virtue
                                        of acquiring     right  of way
                                        where there le a pre-existing
                                        pipe line.
Dear Sirs
                The Sollonlng         queatlon    wae presented      in your    recent
letter8
                   “The question     that Is presented    here Ls that
          when the State Hlghway Commlaslon takes over an
          exlrjtlng    County Road for the purpose of con-
          atructlng     a F.M. Highway and requeeta          addftlonal
          rights     of way to be purchased       by the County for
          a wider right       of way than originally       included
          In the County road right           of way, and said old
          County road Ian crossed         by a pipe line     of a common
          carrier,     must the County pay said common carrier
          for meeting      State apeolflcations       In lowering
          and additional        oaelng of the pipe line under
          the widened portion          of said right   of way%*
                In your   letter       you also     offered   the   following    com-
ment a
                  “It would appear,   taking    into eonalderatlon
          Article     6022and 2351 that although       the oommon
          carrier    would have the right     to cross a public    :
          road; where same is a County road under Article
          2351, the Commls~loners       Court in its exerelse
          of general     control could control      the methoU of
             Ihorable    #red Fe Holub,    page 2 (W-125)



                   crossing    and the looatlon     oi ocos~lng.    Here
                   In this caee, had 8he comaon oafiier          mde a
                   Sonnal notlee OS urofmlng,        the Oomlsalonerrr
                   Court, could, It would be masoneble           to assume;
                   foresee a futulr      ridenlng   of sald road and m-
                   wire     the croestng    to provide ior Suture widen-
                   Ingo M It appeam.that          no formal approval or
                   notice of crossing       was promFed by the commn
                   carrier,    it would appear that now any addltlonal
                   casing or lowering shotald be doan at the expenao
                   of the comon darz%er.”
                           We refer you to Opinions -115         aW -78      (uhioh alw
             en.closed)holdlng,      In eifect,    that the expenses for XWloation
             of’ a utility    on right of way alrerdy      aubileot to publio use,
             must be bone by the utility           rather than the publloo       !kUOWW,
             your question      88. prebaented was limited     to the propoaltion    of
             whether or not n?lmburaerahnt was reqwlnd tq be paid to tha
             pioe 13114~common carrier         Por rrntlng  State apeeifloetlcma     ln
             1aPering rcM addZtlonaX ‘orslng of the pip% tiab un#r the new
             ;;t”,~-&ymht~~o~~~~~                                   lbgBa&Bg~
             which you rntlo?Wd    7oII lud in .7Iwls h-,        6~s     H 60 Wt#’
             lpeasupe of daeg   is, B O&N%- -84t4
                          +%%lelrfoaN’; lte sib -a* ena qanlag    e&i’-
                   rhezw the lee3 ~hel3 perwl~         sada 0oPpoFqtion
                   as above akntlonad      to eTeol 8lkl emafrfi&    i&I
                   lines under and aemau pI&llc Foatle, and whim3
                    the county mqtix%?,a the ‘aUditiona      Mght of way
                    for new highwayEi OP publie roads over and acroaa
    .;              the pHvate property       of the above aeneloned
                    corporation,   the cow@7 vould b&liable        bo se5d
    :

    .,.?
                                                             , CIVD Ame 191,      IIWR,
             156 s.w,   2:
                           ‘It hepi long been the rule in this atak       that
                   3.s ‘~by.: the taking  of a portion   of one03 land
        .’         for pub110 u8e it becomes necessargr fo build
                   fences,     constrwt  gatee, culverts    and other
                   things necessary to make ths remainder usable
                   and to prevent pester       losses sustained    by the




:       2
                                                            .,
        .       .
:   .       i


                                                                                                            !

                    Honorable     Fred    F: Holub,     page     3 (WW-125)


                           appropriation    of that part taken,    evidence
                           of such expenses    thus Incurred   should be
                           considered    by the jury fn fixing    the amount
                           of damages to that part not appropriated.         m 0 .”
                              Also, see Plllot             v.    City   of Houston,     Clv.   App.,    1932,
                    NWH, 51 S.W. 2d 794.
                                 * Should this right           of way have to be condemned,               the cost
                    of buryltig      and providing        additional       caning would not be a aep-
                    arate    issue,    but should be coneldered               In the general        Issues     of
                     the before      and lifter     Va?iu?a of condemneels          property.         IS, however,
                     thle right      IS acquired      by but’of       court settlement,          It seems that
                     there would,.be no other way to compute what the plpe line company
                    la entitled       to but by~.conslderlng            the 008 t of reburying           and pro-
                    viding     ad~ltional~6a~lng,          and ltla        considered       that this Is sup-
                    pbrted by ample authority              a8 above set forth.
                                                                                                  .
                                    You pointed      out, aa above quoted,            that you considered
                     this situation       different       because     the pipe line utility            had not
                    secured’ ‘permleslon        of the Commisslonere~Court                to cross the ex-
                    ~latlng’road      and that “it would be reasOnable                  to assume” that the
                     Commlsaloners ‘Court would “Sore&e                   a Suture widening         of said.
                    roads .alid require        the crosalng         to provide     for Suture wlden-
                     lngo 0 0” and Sor’that            reason     there should be no llablllty                for
                     Mburylng       and providing        additional       casing on the gortlon            taken
                     Soy ney, or additional          right     of way.
                                  It la submitted    that this propoeftioc    has been decided
                    adversely     to your contention     in Hammon v. Wichita    Count& Civ.
                    AP~Q,   1956,   290  S.W.  2d  545  (no wrlt history)  a

                                  “Wichita    County has no right      to destroy
                           appellant    OB property     prior  to the lawful
                           appropriation      thereof    by paying or securing
                           the pamnt       of compensation.       Cltjr of Fort
                           worth v. Dletert,        Tex, Cfv, Appoe 271 S.W.
                           2d 299, error      refused.
                                   “Conversely,    the Coanty has no right       to
                            PeatFaIn   appellant     from making lawful, use of
                            his property     prior   to a legal  taking  thereof
                            by the County.”
                              Hence, amumlng, wtthout    decidlzg,     that the statutes
                    Impose  upon the pipe line common carrier      the duty of clearing
                    with the Commissioners8 Court before  crossing    a county road,
                                                                                      C._               c


                                                                                  .             .


                                                                                            L       ”       :




Aonorabl?     Fred   FI Holub,    page    4 (WW-1%)
                                                         ..

and even aasumlng that the Commlsalonerp@Court                has foreseen
the widening,     it could not have required          the pipe line common
carrier  to make special       preparationa,       at additional      exense,
on land not In the then exlatlng             right  of way a8 euch would
have been a restraint       upon the use' of private         property     prior
to a legal    taking  thereof.



                     W@ere a pipe line croaa,e8 under an
              exlrting    county road, which road lb de-
              slnd     by the Btate'aa        a Fati to Market
              road, and additional           Mght of w&y la re-
              quired    to widen the’ road,         the governmental
              authority     aectilng      this additional        right
              of way la authorlzed'to            pay thi pipe line
              oommon carrier        for expetia&a lncurred'ln
              meeting state       ppeclficatlona         which apeol-
              Slcatlona     require     the lowering        of the pipe
              line and additional           casing    therefor     under
              the widened,       or newly acquired,          right    of
              way.
                                                  Youre       very   truly,




 APPROVED:
 OPINION COMMITTEE
 Ii. ffrady Chandler, Chairman
  FPed Werkenthln                                    f
  Ralph R. Rash
  Jas. W. Wilson
  &VIEWED FOR Ti33 ATTORXXY
  OENXRALBY:
       Ceo.    P. Blazkburn
