Untitled Texas Attorney General Opinion ( 1944 )

. .
ORNEY GENERAL
'I["EXAS
Mr. J. B. 6tevenaon
Assistant County Attorney
KilableCounty
Junation, Texas
Dear Sir: Opinion No. O-6296
Rer Under the provisions of
Article 126931,Revised Civil
Statutes, do the engineers,
under an order frw the
County Judge of Kinble Cow&y
have authority to enter on
the premises in question in
order to make a preliminary
survey on the proposed air
port? And another question.
Wa are in receipt of your request dated November 24, 1944, for
an opinion of this department on the following two questionas
"A. On September 2nd. 1944 by order of the CoaunissionarsCourt
of Kimble Cznty, Texas an election was held in Kimble County for the pur-
pose of determining whether or not bonds should be issued for the purpose
of building, maintaining and operating an air port in Kimbla County. Tkie
election returns show that 629 votes wBra cast for the issuance of bond
and 86 votes against. On September 11th. 1944 the Commissioners Court
passed an order authorizing the issuance of the bonds and on October 31st.
1944, the CoaaniasioneraCourt oontractad with an engineering firm to make
a field investigation and to prepare a proper survey outlining the loca-
tion and boundaries of the site for an air port on the Frank Baker land
and describes the land aa lying northerly and aoro88 the river from the
city of Junction. This same aontraot of course contains many other
clauaea, one of whioh authoriee the County Judge to issue instructions to
the engineers and to approva their aota under the oontraot. The engineers
made an attempt to make a preliminary survey on this proposed site and
waa prevented from doing 80 by an agent of the ownar. Nor what I would
like to know IS whether or not under the provisions of Artiole 126Qh
R.C.S. the engineers under an order from the County Judge have authority
to enter these pramiaea eaoorted by a paaoa offioer in order tolnake a
preliminary survey to determine whether or not the sita is suitable for
an air port, and whether or not any person or persona interfering with
the engineers making said survey would have any causa of action against
the F*xmnisaionaraCourt or County because of the fact that a peace officer
of the county resisted their interference.
. .
Mr. J. B. Steveneon, page 2 O-6298
UB. Rbether or not the owner or his agent would have any right
to forceablyinterfere mlth said preliminary survey or would said owner
or his agent be guilty of a penal offense under the law."
The pertinent part of Artiole 126911read8 as follows;
"Section 1. A-That the governing body of any inoorporated oity
in this State may receive through gift or dedication, and is hereby em-
powered to acquire, by purchase without condemnation or by purohase through
condemnation prooeedinga, and thereafter maintain and operate a# an air-
port t or lease, or sell, to the Federal Government, traota of land either
within or without the aorporate limits of suoh city and within the county
in whioh such oity is situated, and the Commissionera' Court of any oounty
may likewise acquire, maintain and operate for like purpose traots of land
within the limits of the oounty. * * * "
In answering the questions, we think it beet to firat answer
the question a(1to whether a governmental agenoy, clothed with the power
of eminent domain, haa the implied authority to make a preliminary survey
so that said governmental agency may know exactly the real estate it mill
need to purchaee or oondemn.
Artiole 3269 under Title 52 of the Revised Civil Statuter,
relating to the subjeot of eminent domain reads as follows:
"When any person, or oorporation, or dietriot, or assooiation
of persona having the right of eminent domain are sued for property or
for damages to property oooupied by them or it for the purpose for which
it or they have the right to exeroise suoh power, or when a suit is brought
for an injunction to prevont them or it form going upon suoh property or
makine u~lethereof for auoh nurnoaea. the Court in whioh suoh suit ie
pending may determine the matte;, in-dispute between the parties, including
the condemnation of property and assessment of damages, upon petition or
cross-bill asking suoh remedy by defendant, and suoh petition or cross-bill
asking such relief shall not be an admiaaion of the plaintiff's title to
suoh property, end in such went the oondemnor may assert hi6 or its olaim
to such orooerty and ank in the alternative to condemn the name if he or
it faila-to‘e&blirh suoh olaimj end provided that, if injunctive relief
be soughsthe Court may grant suah relief under the Statute6 and Rules
of RquFiZyor may, as a prerequisite for denying such relief, require de-
fendant to give such seourity as the Court may deem proper for the payment
of any damages that may be assessed on defendant's cross-bill for oondem-
nation." (Rmphasis supplied)
You will notice that the atatute granta authority to the oourte
to grant "suoh relief under the Statutes and Rulea of Equity." Sinoe the
County Commissioners* Court does not have express statutory authority to
make preliminary surveys, we think that the Legislature contemplated the
necessity of granting equitable relief in some circumstances not expressly
, .
Mr. J. B. Stevenson, page 3 O-6296
oovered by the statutes. This is further evidenced by said article when
the statute states: "when any person * * * having the right of eminent
domain are sued for property * * * or when a suit is brought for an in-
junction to pmvent them or it from going upon such property or making
use thereof for suah purpose. Construing the statute as a whole, the
Legislature gave equitable relief by injunotion to persons having the
s of eminent domain if anyone prevented them from going upon the
property. In other rords, the Legislature gave equitable relief to
persons having the right of eminent domain as well as to persons using
the right of eminent domain.
The text writers sustain the proposition that an agency having
the authority of eminent domain also have the implied authority to make
preliminary surveys.
"A momentary entry for the purpose of a survey is not however
a taking, and may be authorized without compensation whether the survey
is preliminary to some public work or is for any other publio purpose,
but a right to enter upon private land for the purpose of cutting dosn
trees or of diverting water cannot be acquired without the payment of
compensation. ' Nichols on Eminent Domain, 2nd Ed., p. 310.
ItAll such entries, however, are limited by the neoeasities of
the case and must be made with the least possible injury, and continued
for only a reasonable time. A somewhat similar necessity justifies an
entry on private property for the purpose of making preliminary surveys.
:Jnlessthis was allowable it would be almost impossible to oonstruot a
publia work, suoh as a railway or oanal, It has accordingly been held
that an entry for preliminary surveys is not a taking, but may bo
justified on the ground of neoessity. Such an entry has been held not
to be a taking for which compensation must be first made. If possession
be continued an unreasonable time, or any unnecessarydana@ is done, the
persons making or authorizing the entry become trespassers ab initio."
Lewis Eminent Domain, 3rd Ed., p* 433.
In Byrd Irrigation Company v. &nythe, 146 S.W. 1064, the court
had before it an application for an injunction to enjoin a land owner from
"interfering with such persons while making such inspection, examination
or survey, under penalty of being held in contempt of this court." The
Irrigatien Company requested the injunotion for the purpose of allowing
certain persons to go upon the land and inspeot the same SO that they in
turn could testify as to the value of the land. The Court had already
held a hearing as to the value and had fixed the value of the land. The
Court of Civil Appeals denied the application on the ground that the
Irrigation Company had every aocess to the land for approximately a year
for the purpose of making a preliminary survey to determine the best
location for the proposed improvements and held that the Court nor the
statute involved authorised the Irrigation Company to make an inspeotion
for the purpose of attempting to reduce the value of the land. We refer
to this cae.ssince it is the only Texas ease we have been able to find dis-
cussing the question involved here. Ve quote from said case as follows:
Mr. J. B. Stevenson, page 4 O-6296
" * * * Without entering into any extended diaausaion of the
power of a oourt to grant an order of inspection, it may be ateted that
it has Broome OOmulOn in the lnst few year8 for aourta to grant order8
for the inspeotlon of propertyllherrit ia rhown to be neoessary for a
proper exercise of judioial funotiona, and the attainment of justice,
whether exeroiaed by virtue of an express statute to that effeot, or by
virtue of that power ancillary to the exercise of the duties of a oour+
of equity. + l * w
29 Corpus Juris Seoundum, page 1179, suataina the proposition
that any agenoy having the authority of eminent domain alao has the
implied authority to make a preliminary rurvey before entering oondemna-
tion prooeedings. The proposition is atsted as follmr~
"RIGHT OF ENTRY FOR PURPCSE OF SURVEY. It has been rtated
broadly that the right of entry on property, in geod faith, for the pur-
pose of making a preliminary survey and Investigation with the vislrof
oendemnation is a neoeasary incident of the right to condemn, and the
right to enter for preliminary survey and examination, oofferred by some
statutes, haa been regarded ata a right necessarily incident and prelim-
inary to authoriaed proceeding6 to oondemn."
The beat authority on the proposition is by the Court of Appeals
of Kentucky in the oa8e of Thoma6.v. City of Horse Cave, 61 S.W. (2d)
801,604. In this opinion the Court sustained the right of the oity to
make a preliminary survey aa an ancillary to condemn land for a oity
waterworks. The statutes of Kentucky did not grant nn exprese authority
to make the preliminary survey. We quote from the opinion as followsr
'Lastly, it ir insisted for appellantthat appellee has no right
or authority to enter upon and explore land with the view of oondemnatlon
purposes before the actual institution on suoh oondemuation prooeedings.
Counsel do not cite us to any authority, nor we know of none, conferring
upon an individual holder of a franchise the right of preliminary swr-
vey and examination as an incident or right precedent to the institution
of condemnation prooeedings, but the trend of authorities ia to the ef-
feat that all oorporations or pvrsons possessed of the right of eminent
domain are in verted with the right and authority to enter upon private
property for the purpose of aoquiring auoh property as may be neoessary
in the exercise of its franchise right.
"In the ease of Ward V. Toledo; N. & C. R. Co., 1 Ohio Dee.
(Reprint) 653, the oourt aaidr 'The legislature, it is oonoeded may impart
to the railroad oompany the right of eminent domain upon and over the
lands of this state, for the purpose of public improvements. The right
of survey and examination is an inoident of the right of appropriation,
and necessary to its proper exercise. It is not known hew a company could
very well determine upon the right of appropriating the roil upon whioh
to OOn8tmOt its road, unless it has the prior right of examination for
that purpose.'
Mr. J. B. Stevenson, page 6 O-6296
'"TOthe rame effeot ia the case of Litohfield v. Bond, 186 R. y.
66, 78 N.E. 719. In Fox T. Weetern R. R. Co., 31 Cal. 638, the court
saidr 'Tf a rnilroad is to be oonstruoted, a survey must be made before
the oorporation oan determine the preoiee land whioh will be required3
and the oorporntion may lawfully enter for that purpose and may lawfully
do what would otherwise be a trespass.' 1Ihea*me rule is adhered to and
reiterated in 20 C. J. 680, 61 C. J. 494; Kincaid v. United States (3. C.)
35 F. (2d) 235,247.
"Railroad oompanies and other holders of special privileges
being invested with this right, we conceive of no rssson why the same rule
should not apply to all corporations, associations, person or persona ia-
vested with the power of eminent domain. The basio question is the right
of a holder of a franohiss to aoquire by oondemnstion, If necessary, such
property as may be necessary for the effective operation of the franchise.
Before the institution of oondemnation prooeedinga it is neoessary that
the exact location, amount, and desoription of the property sought to be
oondemned, be definitely ascertained, and in such oiroumstanoes, if these
preliminary steps be denied, it would at least be difficult, if not lm-
possi~ble,to sucosssfully carry out suoh oondemnation prooeedings. We
do not oonoeiva that the Legislature intended to make n useless gesture
by granting n privilege withoutany power, expressed or implied,to carry
suoh privilege into effect and operation.
"In view of the authorities herein cited and what has been said,
it follows that the right of entry upon property, in good faith, for ths
purpose of making n preliminnry survey and Investigation with the view of
condemnation, is a necessary right and incident preliminary of the right
precedent to oondemnntion.'
See also Lynn v. Green Bay & Minn. Ry. Co., 42 Wis.638, 5441
N. 0. & S. Ry. Co. v. Jones, 6R Ala. 48, 53: The Montana Company v. St.
Louis Id.deN., 162 U.S. 180.
'TheSupreme Court of Texas in Terre11 v. bparks, 135 S. 8. 621,
in discussing the necessary implication in the construoticn of powwra,
stated:
"Whenever a power is given by statute, averything necessary to
make it effeotual or requisite to attain the end is implied. It is a
well-established principle that statutes oontaining grants of power are
to be construed 80 aa to include the authority to do nil things necessary
to accomplish the object of the grant. 'Ihegrant of an exprass power
carries with it by neoesnary implication every other power necessary and
proper to the execution of the power expressly granted. Where the lnw
commands anything to be done, it euthoriaee the performance of whatever
may be necessary for exeouting its oommands."
Consl.deringthe statutes and the authorities above cited, we
are of the opinion that the t%unty fknmissioners’ Court of Klmble County,
Mr. J. B. Stevenson, page 6 O-6296
has the authority to make a preliminary survey for the purpose of
determining the land most suitable for the establishment of a county
airport.
In your first question you also request "to know whether or
not under the provisions of Article 1269h, Revised Civil Statutes, the
engineers under an order of the County Judge have authority to enter
these premises esoorted by a peace officer." Section 4 of Motions and
Orders in 29 Texas Jurisprudence, defines an'brder" as follows:
"While the word 'order' is frequently used as a synonym for
'judgment' it is usually employed in a mere restricted sense. Within the
terms of the narrower usage, an order may be defined as a command, direc-
tion, or decision of a oourt or judge on some collateral or intermediate
point in a case, not detenainative of the main issue. It is sometimes
denominated a 'rulel While en order is frequently the result or conse-
quence of a motion made and presented by one of the parties to a suit,
this is not always the case; in many situations, a court may Take an order
on its om motion, without any request by a litigant. An ex parts order
is one made upon the application of only one of the parties to an action
or proceeding, without notioe to the other.
"An order, like s judgment may be either final or interlocutory,
depending upon whether it disposes of the matter or point in question or
leaves it open for further action. Thus, an order refusing to revoke an
order entered at a previous term is a final order, while an order for the
preservation of property under the oontrol of the court during the pendenoy
of a suit is interlocutory.
"An order to show cause (or a rule nisi as it 1s also called)
is one made ex parts, directing a litigant to show cause why it should
not be made absolute, and it becomes absolute in the event that no such
cause is shorvniit is in the nature of a notice, requiring the party's
appearance in court."
It is, therefore, the opinion of this department that the
instrument you refer to in your question as an "order" cannot in any
manner be considered as an order of the County Court of Kimble County,
since there is no relative pending cass in said court. Such an instru-
ment is merely an identification showing that the engineers are authorized
agents of the county.
If a land owoer or the agent of a land owner should interfere,
or threaten to interfere, with the agent of Kimble County in making a
preliminary survey, we think the proper prooeduri would be for Kimble
Co&,y to file a petition for injunctive relief in a court of competent
jurisdiction.
Having answered the main question in your request, and sug-
gesting the proper procedure to be followed, we do not deem it necessary
Mr. J. B. Stevenson, page 7 O-6296
to answer the other questions in your letter.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/R. J. Long
R. J. Long
Assistant
RJL:EPlnc
APPROVED MARCH 23, 1945
Carlos C. Ashley/e
FIRST ASSISTANT
ATTORNEY GENERAL
This Opinion Considered and Approved in Limited Conference