            THE        AITORNEY                  GENEWAL
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The Honorable B. L. DeBerry                       Opinion No.    H- 113
Texas Highway Department
11th and Braeos                                   Re:     The status of signboards
Austin, Texas 78701                                       as realty or personalty
                                                          for condemnation purposes.
Dear Mr.    DeBerry:

       You have requested     our opinion on the following      question:

                     “In our condemnation proceeding,       should sign-
              boards which are interred in the ground on the property
              of the landowner,    lessor, be treated the same as any
              other realty such as fences,    etc.,   or should such sign-
              boards be treated as personalty      because of the special
              terms of the please agreements     between the landowner
              and the lessee,   . . . .‘I

       Your question is prompted by the rule of law that,          under normal circum-
stances,  personalty, because of its removable  character           is not included in
determining compensation    for condemnation purposes.

       The sample “leases”   attached to your letter provide in one way or
another that “all signs and improvements    placed on the above mentioned
property pursuant to this lease are now and forever the exclusive property
of the lessee and may be removed by them at any time. ” This “lease” pro-
vision would indicate that between the parties the signs are considered per-
sonalty.

        Whether the agreements       are actually “leases,   ” or only licenses,
 generally,   if the signs were erected and interred in the ground, they would
 b,e considered    realty for condemnation purposes.       In Texas,   the character of
,property as realty or personalty,       for condemnation    proceedings,   is not affected
 by any private agreement       designating its character.     Texas Pig Stands v.




                                      p.   545
The Honorable   Mr.   B. L.   DeBerry,        page 2 (H-113)




Krueger,     441 S. W. 2d 940 (Tex. Civ. App.,  San Antonio,  1969, err. ref.,
n. r. e. ); Brasos River Conservation    and Reclamation   District v. Adkisson,
173 S. W. 2d 294 (Tex. Civ. App. , Eastland,    1943, err. ref).   In the Adkisson
case, the question presented was:

                    “Did the Court properly require the district to
            pay appellee for the property taken, including casing
            and other fixtures affixed to the leasehold   estate,
            where the lease,    producing wells, and such equipment
            were inundated by waters of the district’s    reservoir,
            even though as between the Appellee as Lessee and
            the original landowners as Lessors,     Appellee had the
            privilege   of removing such fixtures at the termination
            of the lease?”    (emphasis  added)

       The Court answered in the affirmative     because of the rule applied in
condemnation   cases and approved the following statement:     ” . . . Where
fixtures are of such a character   that if put in by the owner, they would
constitute a part of the real estate, they must be paidfor as ‘real estate’
by the party condemning the land. ”

       Accordingly,   in condemnation proceedings,   in determining whether
signboards which are interred in the ground constitute realty or personalty,
they should be treated as though they were owned and had been erected by
the landowner,    notwithstanding private agreements about the matter.

                                   SUMMARY

                    In condemnation proceedings   signboards which
             are interred in the ground should be treated as though
             they were owned and had been erected by the landowner
             in order to determine whether they constitute personalty
             or realty,  notwithstanding private agreements  about the
             matter.




                                              Attorney   General   of Texas




                                         p.   546
The Honorable   B. L.   DeBerry.   page 3 (H-113)




DAVID M. KENDALL,         Chairman
Opinion Committee




                                     p.   547
