Untitled Texas Attorney General Opinion ( 1973 )

THE AITORNEY GENEWAL
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The Honorable B. L. DeBerry Opinion No. H- 113
Texas Highway Department
11th and Braeos Re: The status of signboards
Austin, Texas 78701 as realty or personalty
for condemnation purposes.
Dear Mr. DeBerry:
You have requested our opinion on the following question:
“In our condemnation proceeding, should sign-
boards which are interred in the ground on the property
of the landowner, lessor, be treated the same as any
other realty such as fences, etc., or should such sign-
boards be treated as personalty because of the special
terms of the please agreements between the landowner
and the lessee, . . . .‘I
Your question is prompted by the rule of law that, under normal circum-
stances, personalty, because of its removable character is not included in
determining compensation for condemnation purposes.
The sample “leases” attached to your letter provide in one way or
another that “all signs and improvements placed on the above mentioned
property pursuant to this lease are now and forever the exclusive property
of the lessee and may be removed by them at any time. ” This “lease” pro-
vision would indicate that between the parties the signs are considered per-
sonalty.
Whether the agreements are actually “leases, ” or only licenses,
generally, if the signs were erected and interred in the ground, they would
b,e considered realty for condemnation purposes. In Texas, the character of
,property as realty or personalty, for condemnation proceedings, is not affected
by any private agreement designating its character. Texas Pig Stands v.
p. 545
The Honorable Mr. B. L. DeBerry, page 2 (H-113)
Krueger, 441 S.W.2d 940 (Tex. Civ. App., San Antonio, 1969, err. ref.,
n. r. e. ); Brasos River Conservation and Reclamation District v. Adkisson,
173 S.W.2d 294 (Tex. Civ. App. , Eastland, 1943, err. ref). In the Adkisson
case, the question presented was:
“Did the Court properly require the district to
pay appellee for the property taken, including casing
and other fixtures affixed to the leasehold estate,
where the lease, producing wells, and such equipment
were inundated by waters of the district’s reservoir,
even though as between the Appellee as Lessee and
the original landowners as Lessors, Appellee had the
privilege of removing such fixtures at the termination
of the lease?” (emphasis added)
The Court answered in the affirmative because of the rule applied in
condemnation cases and approved the following statement: ” . . . Where
fixtures are of such a character that if put in by the owner, they would
constitute a part of the real estate, they must be paidfor as ‘real estate’
by the party condemning the land. ”
Accordingly, in condemnation proceedings, in determining whether
signboards which are interred in the ground constitute realty or personalty,
they should be treated as though they were owned and had been erected by
the landowner, notwithstanding private agreements about the matter.
SUMMARY
In condemnation proceedings signboards which
are interred in the ground should be treated as though
they were owned and had been erected by the landowner
in order to determine whether they constitute personalty
or realty, notwithstanding private agreements about the
matter.
Attorney General of Texas
p. 546
The Honorable B. L. DeBerry. page 3 (H-113)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 547