Untitled Texas Attorney General Opinion ( 1961 )

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