Untitled Texas Attorney General Opinion ( 1960 )

Honorable Jerrv N. Shurley Opinion No. 791
County Attorney
Sutton County Re: Does the Commissioners'
Sonora, Texas Court of Sutton County
have the power of emi-
nent domain to condemn
land for flood control
easements where land is
situated In an adjacent
county and related ques-
tions.
Dear Mr. Shurley:
Your request for an opinion concerns several questions.
The first que,stionis:
"1. Does the Commissioners' Court of
Sutton County have the power of eminent do-
main to condemn land for flood control
easements if the land is situated in an ad-
jacent county?"
It is our understanding that a flood control project has
been instituted in your county under the provisions of Article
1581e, Vernon's Annotated Civil Statutes. Your letter to us
stated that a portion of the area from which there is drainage
into your county lies in an adjacent county and that your Com-
missioners' Court is the contracting body for that project.
The pertinent sections of Article 1581e, Vernon's Annotated
Civil Statutes follow:
"Section 1. All counties In this State
shall have the right of eminent domain to con-
demn and acquire real property and easements and
right-of-ways over and through all public and
private lands for the making and digging of
canals, drains, levees and improvements in the
Honorable Jerry N. Shurley, page 2 (w-791)
county for flood control purposes and for drain-
age as related to flood control, and for pro-
viding necessary tlets for waters in such
counties. No-appE:l from the finding and assess-
ment of damages by the Special Commissioners
appointed for that purpose shall suspend the work
for which the land, right-of-way, easement, or
other property is acquired. Where, in the judgment
of the Commissioners' Court, the acquisition of
the fee in the land is necessary, condemnation
of the fee title may be had; provided, however,
that the counties shall not have authority to
condemn the fee of, as distinguished from an
easement or right-of-way over, across or upon,
any property lawfully used or occupied by any
public utility, railroad, canal, levee or other
person, concern, corporation or body politic de-
voting Its property to a public use.
"Sec. 2. The proceedings with respect to
condemning lands or Interests therein, or other
property, for the uses above specified shall be
controlled by the statutes regulating such pro-
ceedings by counties in other cases, as provided
in Article 3264 Revised Statutes of Texas, 1925,
et seq." (Emphisis supplied.)
Article 3264 reads as follows:
"Sec. 1. When real estate is desired for
public use by the State or by a county, or a
political subdivision of a county, or by a city
or town, or by the United States Government, or
by a corporation having the right of eminent
domain, or by an irrigation district, water lm-
provement district, or a water power control
district created by authority of law, the party
desiring to condemn the property after having
failed to agree with the owner of the land on the
amount of damages shall file a statement in
writing with the county judge of the county In
which the land or a part thereof is situated. It
shall describe the land sought to be condemned.
state the purpose for which-it is Intended to be
used, the name of the owner, if known, and that
the plaintiff and the owner have been unable to
agree upon the value of the land or the damages.
Where the land lies In two or more counties, in
one of which the owner resides, the statement
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Honorable Jerry N. Shurley, Page 3 (WW-7%)
shall be filed in the county of the owner's
residence." (emphasis supplied.)
It appears to be quite clear that Article 1581e,
Section 1, V.A.C.S. gives a county the right of eminent
domain in all public and private lands for flood control
purposes. me only possible language In that section which
might be urged as limiting the right of eminent domain to
land In the condemning counties, is "improvements in the
county." However, a reading of the entire Act. shows that
this phrase Is present for the sole purpose of restricting
condemnation proceedings to those projects of benefit to
the condemning county.
In construing this Act, we are guided by the well-known
rules of statutory construction. The court in Magnolia Petro-
leum Co. v. Walker (Sup.Ct. of Tex.) 83 S.W.2d 929, 934, stated:
'No Inflexible rule can be announced for
the construction of statutes. However, the
dominant rule to be observed is to give effect
to the Intention of the Legislature. Generally
the intent and meaning is obtained primarily from
the language of the statute. In arriving at
the Intent and purpose of the law, it is proper
to consider the history of the subject matter
Involved, the end to be attained, the mischief
to be remedied, and the purposes to be accomplished."
Other jurisdictions concur with the Magnolia Petroleum
Co. case, supra, in applying such a rule to the interpretation
Tall statutes. It is generally accepted that the intent of
the legislature is paramount in the interpretation of public
grants of power just as It is paramount in the interpretation
of all laws. Acheson v. Johnson, 147 Me. 275, 86 A.(2d) 628
(1952); Valentine v. Lament, 20 NJ. Super. 454, 90 A.(2d)
143 (195Z?]jState V. Rltschel, 220 Minn. 578, 20 N.W.2d 673,
168 A;L.R. 274 (1945) Himonas v. Denver & R.G.W.R.Co.,
179 F.2d 171 (1949). '
Then in Popham v. Patterson, 121 Tex. 615, 51 S.W.28
680, 683, the court stated:
"In construing statutes it Is the duty
of the court to ascertain the legislative in-
tent, and, when such Intent is once arrived
at, It should be given effect; in fact, such
._ .- .
Honorable Jerry N. Shurley, page 4 (WW-791)
intent Is the law. In determining the legislative
Intent, the court should not look alone to any
one phrase, clause, or sentence of the ACtj and
this Includes the caption, the body of the Act,
and the emergency clause.”
By applying these rules, we look first to the ca tion
of Acts 1949, Regular Session, Ch. 407, p. 759, (Art. 15i le
V.A.C.S.). There the purpose is plainly said to be ". . . for
making and digging canals, drains, levees and improvements for
flood control. . .' It Is to be noted that there is no re-
strictive language In the caption. Now, what does flood con-
trol encompass?
"Flooding rivers are no respecters of
county lines. Suitable dam sites are de-
termined by physical and topographical
characteristics and not by arbitrarily fixed
boundaries of political subdivisions. It Is
possible that the construction of a dam at a
particular site would be of no material or
practical value to the county within which such
site was located, yet such dam and the resultant
impounding of waters might be of inestimable
value to those living within counties nearer
the mouth of the river. In view of these cir-
cumstances, it would seem unlikely that the
Legislature would arbitrarily restrict the
power of eminent domain to the one particular
county In which the required land was located."
Richardson v. Cameron County, 275 S.W.2d 709
-(Tex.Civ.App.,no writ history.)
It seems uncontroverted that a county would be almost
powerless to effect flood control if restricted to Its borders.
Since the Legislature must have intended to promulgate a useful
law, we cannot say that Sutton Countyls right of eminent domain
is restricted to its borders. Next we look to Section 2 of
Article 1581e V.A.C.S., which requires that the condemnation
proceedings be controlled by the statutes regulating such pro-
ceedings for counties in other cases, as provided by Article
3264 V.A.C.S. Article 3264 V.A.C.S., supra, clearly contains
provisions for condemnation of land in other counties. Again,
we cannot say that the Legislature did not intend for this
procedural provision to be applicable.
By inspecting the general scheme of le
v. Texas (Commission of Appeals) 53 S.W.2d 774-7
Honorable Jerry N. Shurley, page ,5 (WW-791)
flood control, we again see the Intent of the Legislature.
Article 7880-3 V.A.C.S. provides:
"Water Control and Improvement Districts
may be organized under the,provisions of
Section 59 of Article 16 of the Constitution
for any one or more of the provisions therein
provided as follows: 'Including the control,
storing, preservation and distribution of
its waters and flood waters. . O *I'
This is essentially the same function required of counties by
Article 1581e, V.A.C.S. Article 7880-125 V.A.C.S. provides that
water districts may condemn "all lands . . . easements, rlghts-
of way. . .n (emphasis suppliw for accomplishing the purposes
of the Act which is the same type language used in Section 1 of
Article 1581e V.A.C.S. It continues by interpreting this to
mean that the districts may acquire land either within or beyond
the boundaries of the condemning district. A fortiorl this
indicates that the Legislature, in legislation of this kind,
does not hold political boundaries to be limiting factors. Fur-
ther, by enacting Article 7880-126(n) the Legislature affirmatively
said that any county could "elect to proceed to condemnation
under the provisions of, and in the manner established by . . ."
the Water District Act. Accepting this grant of power, we
must assume that it meant just what It said, i.e., that counties
could condemn in the same manner as a water district either
within or without the boundaries of the condemning county.
There is no logical reason to differentiate the rights of emi-
nent domain In condemnation proceedin s by a county under
Article 1581e V.A.C.S. and Article 7380-126(n) V.A.C.S. It
is only the mechanical procedure that is different.
Therefore, we answer this first question in the
affirmative.
Your second question is as follows:
"2. Can Article 7880-126(n) be used by
the Commissioners' Court without forming a
water district?"
Article 7880-126(n), V.A.C.S., states as follows:
"Any Count Levee District, or Navigation
District of
--cd s State may elect to proceed to
condemnation under the provisions of, and In the
manner established by, this Act, having regard
only to causing such proceedings to conform to
Honorable Jerry N. Shurley, page 6 (WW-791)
the law of the being of any such govern-
mental agency." (Emphasis supplied.)
The Acts of 1925, 39th Leg., Ch. 25, are codified as Articles
7880-l to 7880-153, V.A.C.S. inclusive. Article 7880-126(n)
clearly makes such Acts available to counties as to condemna-
tion. Such Article is quoted next above. It is seen that
this Article applies only to an election of a condemnation pro-
cedure, and does not require the county to organize itself as
a Water District. This Article is designed to be interchan eable
with Article 3264, v.A.c.s. as indicated by Article 7880-128 (a)
which permits the Water District's Board of Directors to elect
to proceed under the provisions of Title 52, hinent Domain,
V.A.C.S. The Legislature obviously Intended to provide recip-
rocity of procedures in condemnation.
We therefore answer your second question in the
affirmative.
Your third question is:
“3 . If the answer to No. 1 is affirmative,
what is the condemnation procedure to be em-
ployed?"
In view of our answers to questions 1 and 2, supra, our
conclusion is that the Commissioners' Court has the power of
election to proceed in condemnation under either Article 1581e
V.A.C.S. (utilizin the procedure set out In Article 3264 V.A.C.S.)
or under Article 7%80-126 V.A.C.S.
Your fourth question is as follows:
,114. If the answer to No. 1 is negative,
how will the Commissioners' Court of Sutton
County proceed to obtain such easements?"
Since our answer to question No. 1 was in the afflrma-
tive, we do not tender an answer to this question.
SUMMARY
1. The Commissioners' Court of Sutton
County does have the power of eminent domain
to condemn land for flood control easements
where the land Is situated In an adjacent
county.
Honorable Jerry N. Shurley, Page 7 (WW-791)
2. Sutton County may elect to proceed
to condemnation under the provisions of
Article 7880-126(n) V.A.C.S., without forming
a water district.
3. The Commissioners' Court of Sutton
County may elect to proceed in condemnation
of land situated in an adjacent county under
either Article 1581e V.A.C.S. or under Article
7880-126 V.A.C.S.
Very truly yours,
WILL WILSON
Attorney General of Texas
,44/W
Donald R. Bernard
Assistant
DRB:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
W. Ray Scruggs
Jack N. Price
Morgan Nesbitt
REVIEWED FOR THE ATTORNEY GENERAL
By:
Leonard Passmore