Untitled Texas Attorney General Opinion ( 1958 )

. .-_ Maroh 21, 1958 Honorable W.W. Kilgore Opinion Ho. WW-391 County Attorney Victoria County Re: Authority of the Victoria, Texas county to condemn a right of way eaee- ment over a railroad -I%*h -0i'wuy zzn~*L%*~'L~rg Dear Mr. Kllgore: of four or more tracks. In a recent request Tor an opinion of thla~oi- rice, you ask whether Victoria County, under Articles 1149 and 119, Vernon's Civil Statutes, 18 authorized "to condemn an eacpementover a rall- road right oi way CennkFtl~ two streets, whlah propesed croseing rpuld croonsfour tracka and an additional track or syPurwhich goes to a loading ramp, being five tracks in all, in a community or unincorporated town or city". Artloles 1149 and 1150 of Vernon'8 are Articles 1149 and 11% of the Revised Civil Statutea of Texas, 1925. They read: "Art. 1149. Condemnation for hl&ghways. --Any tern or village In thle State, lncor- porated under this chapter or by special charter, shall have the right, and they are hereby empowered, to condemn the right of way and roadbed of any railroad company whose roadbed runa within the corporate llmlfs of suah town or village, when deemed neceseary and so declared, by a majority vote of the board of aldermen, for the purpose of opening, widening or extending the streets of such town or village; provided, there are lees than four railroad tracks. Falling to agree en the damages Hon. W.W. Kllgore, page 2 (W-391) to be paid therefor, the mayor shall prepare a statement In writing ehowlng the point on eaid railroad right of way where said atreet Is desired to be opened, widened Qr extended, giving the width and length of that portion of the right of way of the railroad sought to be oondemned, and daecrlblng It eo that It can be clearly Identified, the object for whloh It Is sought to be condemned, the name and style ol the railroad uompany, and file the same with the county judge ef the county In which auah town or villa@ Is sltuated, whereupon proceed- ings shall be had to condemn said right of way. Acts 1897, p. 216; Q.L. Vol. lo, p. 1270)." fEmphasis added.) "Art. 1150. Commissioners court may con- demn .--County commissionera shall have the right, upon petition of twenty freeholder8 of any oommunlty, or unlnaorporated town or city, to condemn roadbed of railroads for the Bame purpose mentioned in the preaedlng article.", Artlales 1149 and 1150 were originally paesed by the LeglrrlatureaB one act--Acts 1897, 25th Legislature, page 216, chapter 151. It Is therefore proper when later- pratlng Articles 1149 and 1150 to look to this original rat and likewise to consider said Articles to be in para aaterla. 39 Tex.Jur. page 263, Stats. i3139; 39 Tex.Jur. page 253, Stata. g 135. When this Is done we see that the primary ob- jeatlve of the.orlglnrl enactment was to enable towna, vll- la$ea and population centers to remove obatructlona caused by railroads to public streets in their respective area8 through the medium of'eminent domain. However, a qualifica- tion wae placed upon the method of achieving this primary objective, condemnation was authorized Qver no more than three railroad tracks. Article 1149 and 1150 carried Into codiricatlon the purpose and methods of the original rat. From an historical view It becomes obvious that the Leglsla- ture in enacting Article 1150 intended to confer to ,unlncor- porated town8 or communltles in the county only such condem- nation powers a8 were konf'erredto incorporated towns and villages by Article 1149, i.e., the right to condemn a rrll- road right of way consisting of less than four rallrQad tracks. It would Indeed be illoglaal to assume that the Legislature by this enactment Intended to grant to unincorporated commu- nities greater condemnation powers than it granted to the more densely populated Incorporated communities in the county. Clearly the restriction on the number of tracks that may be condemned under Article I149 applies to Article 1150. Hon. W.W. Kllgore, Page 3 (WW-391) This oi'llce,in Attorney Qeneral’s Opinion No. O-5352, 1943, has held that Articles 1149 and 1150 grant to the county commissioners court the power to condemn railroad rights of way over no more than three traaks. We believe that opinion to be correct In thlnrrespect. Therefore we inform you that Victoria County does not have authority under Articles 1149 and 1150 to condemn an easrementIn an unincorporated com- munity over a railroad right or way to connect two streets which proposed arossing would croaa four tracks and an ad- ditional spur track making live tracklsIn all. SUNNARY Articles 1149 and 1150 do not authdrlze the County Comm1saloners Court 0r Victoria County to condemn a right of way across a railroad right of way consisting of five railroad tracks. Yours very truly, WILL WILSON Attorney (leneralof Texaa Milton Richardson Assletant Attorney Qeneral iYR:dhs:bh APPROVED: OPINION OOMMITTEE Gee. P. Blackburn, Chairman Ceail C. Rotsch Mark McLaughlin John Ii.Minton, Jr. RBVIRWED FOR THE ATTORNEY (IKNERALBY: W.V. (3eppert