                         March 6, 1961

Mr. Ellis A. Oualline, Jr.
County Attorney of Montgomery County
Conroe,   Texas
                               Opinion No. W-1004
                               Re: Whether Commissioners'
                                   Court may require gas
                                   pipe line company to
                                   move or lower its pipe
                                   lines which are now in,
                                   along, or across a new
                                   right of way location
                                   to be purchased for a
                                   prospective farm-to-
Dear Mr. Oualline:                 market road.
      Your request forkan opinion is in the following language:
            “TheCommissioner‘8 Court of Montgomery County
      nas requested Informationthat goes beyond your
      opinion No. W’tf-961. They are purchasing right-of-
      way on which the State of Texas will construct a
      farm-to-marketroad,
       .a 'May the CommlsslonertsCourt of Montgomery
      County require gas pipe line companies to move or
      lower their pipe lines along or across this right-
      of-way for the proposed road without paying them
      compensationtherefor?"
     Our holding in Opinion No. w&961, to which you refer,
is reflected in the "Summary"thereof, which we quote:
           "The Commissioners'Court of Sherman ~County,
      Texas, is authorizedto require gas pipeline com-
      panies, whose lines run along or across public
      roads which are to be paved, to move or lower such
      pipelines at their own expense and without reim-
      bursement from the State.
     That opinion pertains to a pipe line which had been
laid in an existing street. Our conclusionswere based upon
State v. City of Austin,      Tex. -,    331 S.W.2d 737 (w6o),
Mr. Ellis A.. Oualline, Jr., page 2 '(W-ldO4)


which in turn is predicated upon Section 1 of Article 1436b,
V.C.S. We quote the applicableportions of that statute:
         "Section 1. Any person, firm or corporation
    or incorporatedcity or town engaged in the business
    of transportingor disbrlbutlnggas for public con-
    sumption shall have the power to lay and maintain
    pipes, mains, conductors and other facilitiesused
    for conductinggas through, under, along, across
    and over all public highways, public roads, public
    streets and alleys, and public waters within this
    State; provided that within the corporate limlts
    of an incorporatedcity or Incorporatedtown such
    right shall be dependent upon the consent and sub-
    Ject to the direction of Its governing body.,. . .
    The public agency having jurisdictionor control of
    a highway or county road, that Is, the Highway
    Commission or the CommissionersCourt, as the case
    may be, may require any such p'erson,firm or corpor-
    ation or Incorporatedcity or town at its own expense
    to relocate,itspipes, mains, conductorsor other
    fixtures for conducting gas on a state highway or
    county road outside the limits of an Incorporated
    city or incorporatedtown so as to permit the wlden-
    lng or changing of traffic lanes. . . On (Enighasis Added)

     It is thus seen that pipe line companiesmay lay their
pipe lines in existing highways, roads, streets, etc,> but,
in turn, may be required by the governing authorlty to relocate
them so as to permit the widening or changing of traffic lanes.
     A different situation exists In your case. Your letter
to the Attorney General dated February 4, 1961, supplementing
information~in your opinion request, makes lt plain that the
proposed farm-to-marketroad is on new location and that the
pipe line in question is on private property. This being true,
there is no statute or law by which the pipe line company can
be required to move or lower Its pipe lines. Doubtless this
pipe line lies within an easement secured by the company from
the owner of the land.
     Section 17 of Article I of the Constitutionof Texas
states:
         "No person's property shall be taken, damaged
    or destroyed for or applied to public use without
    adequate compensationbeing made, unless by the
    consent of such person."
Mr. Ellis A. Oualline, Jr., Page 3 (WIG1004).


     If by negotiationyour Commissioners1Court cannot per-
suade the company to move this pipe line you will have to pay
it therefor. If a price cannot be agreed upon you will have
to condemn the easement, of which the pipe line Is a part.
If the Commissioners1Court cannot agree with the owner of the
fee on the value of the land thcna condemnationsuit should
be brought jointly naming both the fee owner and the pipe line
company as condemnees.
     In answer to your question, therefore, it is our opinion,
and we so hold, that the Commissioners'Court of Montgomery
County may not require a pipe line company to move or lower
its pipe lines from the private premises upon which a future
road is contemplated.

                         SUMMARY
             The Commissioners1Court may not require a
             gas pipe line company to move or lower Its
             pipe lines which are now in, along, or
             across a new right of way locationbeing
             acquired for a proposed farm-to-marketroad.
     hi
      ~..'
                               ~Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




wRs:vj

APPRCVED:
OPINION COMMITTEE
W. V. Geppert, Chairman

Jerry Roberts
Riley Eugene Fletcher
Thomas Burros



REVIEWED FOR TRE ATTORNEY GENERAL
By: Morgan Nesbltt
