.    .




    *
     i

                                   November 8, 1990



         Honorable Mike Driscoll         Opinion No.   JR-1241
         Harris County Attorney
         1001 Preston, Suite 634         Re:   Authority of a county to
         Houston, Texas 77002            trim, remove, or sell trees
                                         from county road rights-of-way
                                         (RQ-1970)
         Dear Mr. Driscoll:
              You ask three questions regarding Harris tiounty#s
         authority with respect to trees and shrubs growing within
         the rights-of-way of county roads. Your first question is:
                    To what extent can the county        trim,
                 remove, sell or otherwise dispose of trees dr
                 shrubs from the right-of-way of county' roads
                 or prevent the planting of such trees and
                 shrubs without being required to compensate
                 owners of the fee upon which the right-of-way
                 exists?
         Counties under their~authority to open and lay out roads 'may
         acquire the rights-of-way for such roads by dedication,
         purchase, condemnation, or prescriptive easement.        See
         V.T.C.S. art. 6702-1, subch. A (the County Road and Bridge
         Act) : 36 D. Brooks, County and Special District Law,
         85 40.7, 40.25 (Texas Practice 1989). Your question and
         brief indicate that you are concerned about the situation
         where the property interest the county has acquired in the
         right-of-way is in the nature of an easement, the fee
         interest being retained by the owner of the property abut-
         ting the right-of-way. &8 43 Tex. Jur. 3d Riohwavs 5 116
         (1985).
              We caution at the outset that resolution of the issues
         presented in your first question might ultimately depend on
         the facts of the particular case -- u,    the provisions of
         the conveyance, condemnation proceeding judgment, or dedica-
         tion under which the county acquired the particular right-
         of-way in question.    We cannot anticipate every factual




                                         p. 6600
                                                               . .

Honorable   Mike   Driscoll - Page 2   (JW-1241)




situation that might arise.    The following discussion   of       .
pertinent legal authority is offered for your guidance.
     We think it is clear that the Harris County Commis-       .
sioners Court in exercising a right-of-way easement general-
ly has authority to prevent the planting of trees and shrubs
within the right-of-way and to remwe or cause to be removed
trees or shrubs growing there, when the court makes a
reasonable finding that the trees or shrubs would interfere
with the right-of-way purposes for which the easement was
obtained. m     Harris County Road Law, 5s 1, 16, Special
Laws, Acts 1913, 336 Leg., ch. 17, at 64 (Harris County
Commissioners Court to have control of all roads laid out or
constructed by the county and of all matters in connection
with the construction or maintenance of such roads): &
5 12 (condemnation authority): ia, 5 33 (Harris County Road
Law cumulative of other laws); V.T.C.S. art.         6702-1,
5 2.002(b)(l) (under the County Road and Bridge Act, commis-
sioners court may make and enforce all reasonable and
necessaq rules for the construction and maintenance of
county roads except as prohibited by law): j&        5 2.004
(condemnatiFd;th;iity).     We note, too, that where the
trees or              determined to impair' visibility for
motorists using the county road in question, Harris County
as one with a population of 950,000 or more has authority
under subchapter F of article 6702-1, through its commis-
sioners cou*, to define sight distances at intersections
and to prohibit and provide for the removal ~of trees and
shrubs obstructing such sight distances (presumably both
within and without the area of the right-of-way). In the
absence of a showing of fraud or gross abuse of discretion,
the commissioners court's determinations as to the need for
removal of trees and shrubs in the right-of-way          for
right-of-way purposes would be conclusive. See.,!&&
Pd.   co.     Penn 131 S.W.2d 131 (Tex. Civ. App. - San
Antonio 19:9, writ'ref'd).
     As to whether the owner of the underlying fee in the
right-of-way is entitled to compensation for removal of
trees or shrubs from the right-of-way, though we note some
possible inconsistencies among the Texas cases, we think
that the cases dealing most directly with this question




                                  P- 6601
Honorable Uike Driscoll - Page 3       (JW-1241)




indicate that the   fee   owner   generally has nc right to   com-
.pensation.l
     In a decision approved by the supreme court, the
Commission of Appeals in mv    of  Fort Ijg.rth
                                              v. Gw
169 S.W.Zd 149 (Tex. Comm'n App. 1943, opinion adopted):
ruled that fee owners could not enjoin the city#s destruc-
tion of curbs, sidewalks, trees, or shrubs in the street
right-of-way, even where those improvements had been in-
stalled by the fee owners in compliance with a city ordi-
nance, when the city, the right-of-way easement holder,
later widened the street. The court stated that the facts
of the case did "not disclose a private right invested in
any of the plaintiffs in relation to the street or to any of
the improvements in the street." &    at 150.
     Subsequently, in e                          Worth   175
S.W.Zd 427 (Tex. Civ. APP. - Fort Worth 1943, writ ;ef#d)
one of the unsuccessful m          plaintiffs sued the city
for damages occasioned by the city*s removal of the trees
and shrubs. The WO~COII&court, citing m,          ruled that
"the plaintiff had nc property rights in    the grounds and
imprwements placed thereon    by him."    ;TB, at 430.    It
affirmed the trial court's sustaining of the defendant
city's position that there had been no showing that the city
*had abandoned any of its rights and privileges under the
law to use the whole of said street for such public purposes
as were required under all changing circumstances." IBL at
428.
     Where a right-of-way easement is acquired, by condemna-
tion at least, the fee owner is presumed to have been fully
compensated at such time for the damages to his property,
including appurtenances such as trees, which will arise from


     1. Section 2.418 of article 6702-l provides that the
commissioners court "shall     pay the    owner an    amount
sufficient to cover     the loss of     the value of     the
obstruction, if any, incurred by the owner by reason of the
removal" of ObStNCtiOnS  to sight distances under subchapter
F. As the commissioners court‘s authority under subchapter
F is not limited to the area within the right-of-way but
also extends to land held in fee outside the right-of-way
easement, we do not think that section 2.418 in itself
requires payment for removal of trees and shrubs within the
right-of-way easement.




                                   P- 6602
Honorable   Hike   I?~Ascoll- Page 4   (JM-1241)




the proper use of the easement.
m,        175 S.W.Zd 243 (Tex. I9m
ackncwledge that as the taking of an easement for        road
purposes by condemnation generally leaves the condemnee with
little or no use of the right-of-way area, he is often
entitled to damages equivalent to those he could have for
the taking of the whole fee.       -  W,                  251
S.W.Zd 953 (Tex. 1952).    While the fee owner may have a
right to use portions of the right-of-way for growing trees
or crops, his right extends only so far as it does not
interfere with the paramount rights of the easement holder
to use the right-of-way for road purposes. &S 43 Tex. Jur.
3d &ichwavg 5 117, and authorities   cited there. J. Sackman,
Nichols Law of Eminent Domain, at 5.45(3), states the law
thusly:
           The trees and herbage in a public highway
        are the property of the owner of the fee. He
        has the right to use any portion of the way
        not needed for public travel, for     growing
        grass, crops, or trees, either for their
        produce or for improving the appearance and
        enhancing the comfort of his premises.    For
        any injury to the trees and herbage that is
        not the result of the proper exercise of the
        highway easement he is entitled to compensa-
        tion as fully as if the highway did not
        exist. The owner's rights in thentrees and
        herbage are, however, like all his rights
        within the limits of the way, subordinate to
        the rights of the public. When the trees or
        herbage interfere with the proper exercise of
        the highway easement they must give way. For
        this reason trees may be cut down or trimmed
        in order to widen the wrought portion of the
        highway, or to accommodate rails and wires
        laid by public service corporations in the
        highway, for any purpose which is classed as
        within the highway easement, without compen-
        sation to the owner of the fee.
     As changing road and traffic conditions require, the
public right-of-way easement holder may, by widening the
paved portion of the roadway or clearing a greater pa*    of
the unpaved portion, make fuller utilization of its easement
rights. WcCraw v. Dallas, 420 S.W.td 793 (Tex. Civ. App. -




                                  P. 6603
Honorable   Mike   Dtiscoll - Page 5   (J&l-1241)




1967, 'writ ref*d n.r.e.).z In such cases, we think, activi-
ties by the fee holder in the right-of-way which had not
previously been inconsistent with the public's use of it for
right-of-way purposes may over time come to interfere with
the paramount public use and have to give way. m    m
and HOlCOPb, suma: U                   H. & s     Rv. co. v
atv of Easy,           249 S.Wwex.         Civ?App.    - San'
Antonio 1923), rev d on other crounpS    260 S.W. 841 (Tex.
Comm'n App. 1924, judgm't adopted) (pl;intiff on notice that
city could, when need arose, have improvements plaintiff had
erected in public right-of-way removed, and he could not
recover therefor).
     Your brief indicates a concern that even if the commis-
sioners court may have trees and shrubs in the right-of-way
removed, there would remain a legal question, for purposes
of the disposal, by sale or otherwise, of those materials,
as to where title in them lay -- h,    whether the county's
disposal of the materials might constitute a conversion, and
thus a taking, of private property for public purposes
without compensation in violation of article I, section 17,
of the Texas Constitution.

     801 -h           specifically held that the destruction
of treesCand' E6      in the right-of-way there involved no
unl.awful taking under the constitution. &    at 430. If the
public easement holder may, without compensating the fee
owner, &&IQY     trees and shrubs in the right-of-way for
right-of-way purposes, we see no reason why it may not
otherwise dispose of trees and shrubs that are removed
because they interfere with use of the right-of-way, even by
sale, without compensation. Though the fee owner may "own"
the trees and shrubs in the right-of-way, and presumably
himself have the right to transplant or cut them, if not in


     2. The point at which changing public' utilization of
the right-of-way imposes burdens on the servient fee estate
in excess of the easement rights, thus entitling the fee
owner to additional compensation, would depend on the terms
of the particular easement, the nature of the change in use,
and local conditions. See. e.cic,31 Tex. Jur. 3d Easements
and                           5 43, *sea.:   see also Tsas
P er h Liaht Co. v. Casey 138 S.W.2d 594 (Tex. Civ. App. -
F::   Worth 1940    writ Aism'd judgm't car.)      (easement
holder's 1iabiliCy for negligent cutting of trees not
necessary for easement purposes).




                                  p. 6604
                             ,    ;




Honorable Wike Driscoll - Page 6      (JIG1241)   r>;.




violation of applicable ordinances or laws,3 his   ownership    .
interest must give way when the trees or shrubs come to
constitute an impairment of the public authority~s proper
utilization of its right-of-way    easemsnt.   s.es ~sackman,
6ypL;p*  He  plants  and  grows  trees  or shrubs in     the
right-of-way with notics that the public easemsnt holder may
remwe them when they come to constitute    an impairment of
the easement.
     It appears that some other jurisdictions have followed
a different rule.                               ,
!ikWEEL 443 N.E.Zd %32"                      1981) (statute
authorizing director of transportation to %2movem      trees
within right-of-way did not authorize director to *take"
such trees without compensation to fee owner).      Sa.ckman,
w,     in section 5.45(3) notes that e[i]t is held in some
jurisdictions that the public authorities may use the
vegetable growth    for the    purpose of    repairing   the
way . . . but when the vegetation is cut for any other
purpose it belongs to the owner of the fee. If he fails to
remove it within a reasonable time he may be held to have
abandoned it.*
     We do find Texas cases which suggest #at      a public
authority may use soil or gravel from a right-of-way ease-
ment only for improving that or other roadways.   See. e.c%,
G.&v of La Gram= v. kmaa      161 S.W. 8  (Tex. Civ. App. -
Austin 1913, writ ref'd) (city may use soil excavated from a
street easement for improvement of other roads). In !2.isb,


      3. We note that section 2.006 of article 6702-l
authorizes the commissioners court to lay out "neighborhood
roads* and provides for the payment of damages to the fee
owners for the takings. The section further authorizes the
commissioners court 'to direct that the'fee owners clear
obstructions from the right-of-way "for a space of not less
than 15 feet or more than 30 feet on each side of a
designated line" except that "the.marked trees and other
objects  used to designate the line.shall not be removed or
defaced." We think this provision reflects the commis-
sioners cou*'s    control over trees in the right-of-way
(though we do not take the provision to indicate that if the
commissioners court fails to order the clearance and later
itself has it done, or later has a greater portion of the
right-of-way cleared, the fee owner is entitled to any
further compensation).




                                 p. 6605
Honorable Uike Driscoll - Page 7   (JW-1241)




the court in atv    of Sa~-&$~pAntonio
                                   v. m,        33 S.W. 256
(Tex. Civ. App. - San Antonio 1895, no writ) noted that "if
the city does not remcve the soil for the purpose of filling
in other streets, a     the adiow      om   does not remo e
a, the city may sell and dispose of it in any way it zy
deem proper."   (Emphasis added.)
     We think the later Gilliland and &&&         decisions,
however, indicate that a public authority may, in exercising
a right-of-way easement, remove trees and shrubs for road
purposes and dispose of them without compensation to the fee
owner. The supreme court expressly approved m,           and
refused writ of error in &&GA&.     We find no Texas cases
subsequent to the now almost 50-year-old m               and
Wolcon& cases which follow a different rule with regard to
compensation for removal of trees and shrubs from a public
right-of-way.
     Your second guestion'is:
           If the county can sell trees from the
        right-of-way, what procedure must be followed
        in doing so?
      Your brief indicates that your second question reflects
a concern as to whether the county's sale of trees would be
governed by subchapter A of chapter 263 of the Local Govern-
ment Code, providing for the county's sale or lease of real
property, or rather by subchapter D providing for'the dis-
position of personal property falling within the definitions
of "salvage" or nsurplusa property in section 263.151.
Though trees, while growing and unsevered are generally
considered "part of the land" -- gee. e.a,, Jbuers v. Fort
)fOrth PoultN h Ecc Co, 185 S.W.2d 165      (Tax. Civ. App. -
Fort Worth 1944, no writ; -- cut trees, or trees   "COnStNC-
tively severed" by selling them in the contemplation that
they will be cut and removed, are considered personal
property. &S pavis v. CD      161 S.W. 39 (Tex. Civ. App. -
Texarkana 1913, writ dism#d)i mv     v. Dowu,   207 S.W. 585
(Tex. Civ. App. - Texarkana 1918, writ dism'd).
     Section 263.151 of subchapter D of chapter 263, Local
Government Code, providing for the county's sale of wsal-
vage" or "surplus" property, defines such property as
follows:

           (1) 'Salvage property' means      personal
        property, other than items routinely discard-
        ed as waste, that because of      use, time,




                                P- 6606
Honorable Niks Driscoll - Pags 8       (JM-124~)     - r+     .:--




        accident, or any other cause- is so worn,
        damaged, or obsolete that it has no value for
        Eb,ru~se      for  which it was originally
                 .

           (2)  surplus       property'   meatis   personal
        property that:
                 (A)  is not salvage property           or
           items routinely discarded as waste:
                     (B)   is not currently needed by   its
           owner ;
                 (C) is not reguired for the owner's
           foreseeable needs: and
                 (D) possesses some usefulness for
           the purpose for which it was intended.
We think that in the usual case, where trees or shrubs
originally intended for    beautification, shade, or soil
conservation purposes are remwed, or are to be remwed,    by
the county for  right-of-way purposes, the trees or shrubs
would fall within the definitions of esalvagew or "surplus"
property in section 263.151, and the county*s disposition of
them by sale would be governed by subchapter D.
     Your third question is:
        Can the County refuse to approve subdivision
        plats that have existing ~shrubs and trees in
        the right of way, and/or plans to landscape
        rights-of-way by planting shrubs and trees or
        where an attempt has been made to reserve
        rights to maintain such trees and shrubs in
        the right-of-way?
You argue that certain provisions of the Harris County Road
Law, sunrg, would in effect permit the Harris County Commis-
sioners Court to refuse to approve a subdivision plat
purporting to reserve rights to maintain trees or shrubs in
a right-of-way dedicated therein.   We agree. Section 1 of
the Harris County Road Law provides:
        Section 31-C. u accu-riahts-of    -wa
        roads in Harris County. the Commissionen
        -shall
        C                      the width of’ the
        richt-of-way recuired. and establish  thg




                                   P- 6607
Honorable Mike Drisccll - Rags 9   (JM-1241)




                            of u          All of the
        field notes of roads so esiablished and
        determined shall be filed with the Commis-
        sioners Court and be recorded on the Road Log
        of Harris County, and no expenditures shall
        be made by the Commissioners Court upon any
        road not carried on the Road Log.         The
        Commissioners Court may adopt a system for
        carrying roads on the Road Log with the
        required width of the right-of-way to be
        established by the Court. fiwided. however,
               ned bv the county on a -t-of-way
        less than twentv (20) feet nor more than 604
                             s the richt-of-wav wu
             out or established on or after Jm
        1. 1963. No subdivision or nlat of mds    ID
              be filed for rw     bv the Counfv Clerk
        Qf Harris COUntV. Texas. until such Dlat ox
        subdivision bears the sianature of the County
        Enaineer to the effect that the roads. as
            catsd on the nlat. have met the recuire-
        mts   of the svstem adODted bv the Commis  * -
        sioners Court ~-1s             Section as tQ
        fhe width of'the riaht-of-way and have a base
            surface of at least twenty 120) feet is
        y&&h with the base andlsurface meeting the
        minimum requirements    prescribed   by   the
        Commissioners Court by order duly entered in
        the minutes of said court, and that all
        requirements of Harris County and the Harris
        County Flood Control District as to drainage
        have been complied with. (Emphasis added.)
Special Law, Acts 1913, 33d Leg., ~ch. 17, md      by Acts
1963, 58th beg., ch. 369, m          Acts 1973, 63rd Leg.,
ch. 614.
      We find no provision of Texas law specifically author-
izing the Harris County Commissioners Court to require that
rights-of-way be dedicated without reservation as to trees
and shrubs in the right-of-way. However, could it not
require that dedicated rights-of-way be unencumbered by
reservations with respect to trees and shrubs       or other
ObstNCtiOns,   the county's authority under the Harris County
Road Law to require that dedicated rights-of-way be of a
certain width would be rendered nugatory -- particularly as
the county's authority to refuse to approve subdivision




                              p. 6608
                                                               .   I


Honorable Wike Driscoil - Rage 10 (JR-1241,) "




plats is otherwise quits limited. We find no provisions
other than' the width requirement provisions which would
appear to authorize the commissioners court to require that
dedicated rights-of-way be free of reservations whiihtii$tt;
impair the use of the        full width of   the
right-of-way for right-of-way purposes.    m     Local Gw't
Code 53 232.002 (%ommissioners court . . . must approve
plat' meeting requirements prescribed under chapter 232),
232.003, 232.006 (providing respectively that commissioners
courts generally, and in counties of over 2.2 million
population, may require that rights-of-way be of stated
widths, but making no provision with respect'to trees and
shrubs or other potential obstructions in the rights-of-way
or purported reservations with respect thereto): s e also
Attorney General Opinion JW-789 (1987) (limitations on
commissioners court's authority to refuse to approve subdi-
vision plats).
     We think that section 31-C of the Harris County Road
Law not only specifically authorizes the commissioners court
to require that a dedicated right-of-way.. be of a certain
width, but also implicitly authorizes the,court to require
that the right-of-way.dedicated be unencumbered by reserva-
tions of the right to maintain trees or shrubs in the
right-of-way which might impair its full utilization. As we
have determined that the FlarrisCounty Commissioners Court
possesses such authority under section 31-C of the Harris
County Road Law, we do not think it necessary to determine
here whether the above-cited provisions of 'chapter 232,
Local Government Code, would also confer such authority.


           Subject to the terms of ~the conveyance,
        dedication, condemnation judgment, etc. under
        which .$he right-of-way was acquired, the
        .Harris County Commissioners Court generally
        has authority. for right-of-way purposes, to
        remove and dispose. of trees or shrubs from
        the public right-of-way easement of a county
        road or prevent     their planting    without
        compensation to the fee owner.
           Cut trees,    or   trees   *constructively
        severed" by having been sold in the anticipa-
        tion that they will be cut and removed from
        the land where they were growing, are person-
        al rather than real property.




                              p. 6609
                                 ,.   “.



                       ,,   :.                  /


Honorable Wike Driscoll - Page 11 (JR-1241)




          The Harris County Commissioners Court may,
       under the Harris County Road Law, require
       that rights-of-way dedicated in subdivision
       plats be of certain widths, and unencumbered
       by reservations of the right to maintain
       trees or shrubs within the right-of-way area.




                                               JIW     MATTOX
                                               Attorney General of Texas

MARY KELLER
First Assistant Attorney General
IOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
REUEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General




                                           P- 6610
