Untitled Texas Attorney General Opinion ( 1969 )

AUSTIN. -rrcXAU 7es711
CXAWYOB1ID c. WA'WIVS
A%-rOYNgY a-RII. November 17, 1969
Dr. George J. Beto, Director Opinion No. M- 508
Department of Corrections
Huntsville, Texas 77340 Re: Whether the Texas
. Board of Corrections
must collect from
public utilities a
fair consideration
for placing public
utility lines on or
across existing public
roadways traversing
State land under the
control of the Depart-
ment of Corrections,
Dear Dr. Beto: and related question.
In your request for opinion of this office, you present
the following questions:
1) Is the Texas Board of Corrections obligated
to collect and must public utilities pay a
fair and adequate consideration for placing
public utility lines in, on, along, over or
across existing public roadways which trav-
erse State-owned land which is under the
custody and control of the Texas Department
of Corrections?
2) May the Texas Board of Corrections, in the
grant of a public roadway easement, limit
the use of such easement to roadway purposes
only and reserve the exclusive right to grant
public utility easements in, on, along, over
or across such roadway easement?
Section 1 of Article 6203d, Vernon's Civil Statutes,
authorizes the Texas Board of Corrections, with consent of
the Governor and Attorney General, to:
n . . . grant permanent and temporary right-of-way
easements for public highways, roads and streets,
and ditches, and for electric lines and pipelines
consisting of wires, pipes, poles and other neces-
sary equipment for the transmission or conveyance
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Dr. George J. Beto, Page 2 (M- 508 1
of, or distribution of, water, electricity, gas,
oil or other similar substances or commodities,
. . . along, across and over any and all lands
now owned by the State of Texas as a part of the
Penitentiary System, . . .”
Section 2 of the same Article provides that '. . . such
grants and leases shall be executed only upon a fair and ade-
quate consideration. . . .'I
However, public utilities - including telephone, telegraph,
water, gas and electric corporations - are given express legis-
lative authority by virtue of such Articles as 1416, 1433, 1436a
and 1436b, Vernon's Civil Statutes, to lay their lines along, over
and across public streets and highways within the State.
The Court in Jones v. Carter,-101 S.W. 514 (Tex.Civ.App.
1907, error ref.) stated at page 516:
11. . . Light, sewers, gas, and waterworks are
among the common necessities of modern cities,
and it is a matter of,common knowledge that such
plants cannot be constructed and operated without
running the lines and mains along or across the
streets. They are some of the common uses to
which streets are necessarily devoted."
It has been recognized further that it is in the public
interest to receive utility services: therefore, public utilities
are authorized to use the streets and highways. State v. City of
Austin (State v. City of Dallas), 160 Tex. 348, 331 S.W.2d 737
(1960).
The Legislature acting for the State has primary and
plenary power to control public roads and streets. Recog-
nizing this proposition, the Court in State v. City of Dallas
(State v. City of Austin), 319 S.W.Zd 767 (Tex.Civ.App. 1959,
aff. 331 S.W.2d 737) said at page 773:
"There can be no question but that the Legis-
lature can lawfully permit cities and private
corporations to place facilities in streets
and highways to provide essential utility
service for the public, . . ."
The Legislature has seen fit to grant direct statutory
authorization to public utilities to use public roads and
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Dr. George J. Beto, Page 3 (M- 508)
highways. Some such authority is found in Articles 1416, 1433,
1436a and 1436b, Vernon's Civil Statutes. It would therefore
appear that Article 6203d, Vernon's Civil Statutes, would be
rendered inapplicable to the question presented, since no addi-
tional grant of an easement would be necessary in order to
entitle public utilities to take advantage of the right-of-way
of existing public roadways. Accordingly, the Texas Board of
Corrections would not be obligated to collect, nor public utili-
ties required to pay, for placing lines in, on, along or across
existing public roadways traversing State land under the custody
and control of the Texas Department of Corrections.
Question 2 relates to the power of the Texas Board of
Corrections to grant an easement for roadway purposes, while
reserving the exclusive right to grant public utility easements
along and across the roadway easement.
It has been held that the erection of telephone poles and
wires along a public street or highway does not impose an addi-
tional servitude upon the highway. so as to require the public
utility to condemn the land of the street for that purpose.
Roaring Springs Town-Site Co. v. Paducah Telephone Co., 164
S.W. 50 (Tex.Civ.App. 1914, aff. 212 S.W. 147). It has further
been held that the statute so authorizinq is constitutional,
though no additional compensation is provided. Huffaker v..
Lea County Electric Co-operative, 344 S.W.2d 915, 918 (Te x,
Civ.App. 1961, error ref. n.r.e.); accord, Continental Pipe
Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941,
error ref. w.o.m.1
In Roaring Springs Town-Site Co. v. Paducah, 109 Tex.
452. 212 S.W. 147 (1919), an attemnt had been made to dedicate
streets and alleys-in a.townsite for public use, while reserving
exclusive right to grant, for valuable consideration, the right
to use the streets and alleys to construct telephone, telegraph,
electric wires and poles, and gas, water and sewer mains. The
Court held that under the public policy of the State, a public
utility corporation had the authority to construct and maintain
its poles and lines along the streets and alleys dedicated for
public use. The Court stated at page 148:
1,. . . the attempt to reserve . . . a right in-
consistent with such authority cannot be upheld.
For the general rule that the dedicator may
impose such restrictions as he may see fit on
making a dedication of his property is subject
to the thoroughly established limitation that
the restriction be not repugnant to the dedica-
tion or against public policy. . . ."
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Dr. George J. Beto, Page 4 (M-508)
The Legislature, by virtue of Articles 1416, et seq.,
has authorized public utilities to place their lines in, over,
along and across public streets and roads within the State.
Such authorization is not restricted to roads and highways
to which the State or County owns the fee. Continental Pipe
Line Co. v. Gandy, 162 S.W.Zd 755, 757 (Tex.Civ.App. 1941,
error ref. w.0.m.).
Therefore, by applying the same reasoning, advanced in
the Roaring Springs Town-Site Co. case, the attempt to reserve
exclusive right to grant a public utility easement over a roa'd-
way easement would be inconsistent with the direct legislative
grant of authority to public utility companies to lay their
lines over, along and across any public road, street or high-
way within the State.
Accordingly, question 2 is answered in the negative. The
Texas Board of Corrections is neither authorized nor entitled
to limit the use of a public roadway easement to roadway pur-
poses only, while reserving the exclusive right to grant public
utility easements in, on, along, over or across such roadway
easement.
SUMMARY
Public utilities, by virtue of the direct
legislative grant of Articles 1416, 1433, 1436a,
1436b, and other similar Statutes, are authorized
to place their facilities within the right-of-way
along public roads, streets and highways in this
State. Therefore, the Texas Board of Corrections
is not obligated to collect nor must public utili-
ties pay for placing their lines in, on, along,
over or across existing public roadways which
traverse State-owned land under the custody and
control of the Texas Department of Corrections.
Accordinclv. the Texas Board of Corrections
is without power.to reserve, in the grant of an
easement for public roadway purposes, the exclu-
sive right to grant public utility easements over
such public roadway easement.
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Dr. George J. Beto, Page 5 (M- 508)
Prepared by DONALD JONES
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
John Reeves
Harold Kennedy
Roger Tyler
Ronald Luna
MADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
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