Untitled Texas Attorney General Opinion ( 1944 )

ORNEY GENERAL
OPTE~AS
Grover Sellers
Hon. D. C. Greer Opinion No. O-5910
State Highway Engineer Rer Does the F.W, & D.C. Railway
Texas Highway Department Company and the City of Memphis,
Austin 26, Texas Texas, have authority to make the
exchange of property herein stated?
Dear Sir:
We are in receipt of your recent request for an opin-
ion from this department on the following state of facts:
"The F.W. & D,C, Railway Company has a 200 foot right
of way through the city of Memphis. The city has con-
structed a street 40 foot wide on each side of and paral-
lel to the railway right of way. The proper location for
highway U. S, 287 is onthe 40 foot street, on the west
side of the railway right of way, however, it will be ne-
cessary that a minimum right of way of 70 feet be secured,
There are many buildings and other improvements on the
west side of the street which would have to be moved in
order to widen the present 40 foot street to the west,
however, it may be that the railway officials would be
willing to give to the State or the city of Memphis an
easement on 30 feet off the west side of their 2C0 foot
right of way in exchange for 30 feet to be added to the
east side of their right of way. This, of course, would
include 30 feet of the present 40 foot city street on the
east of the railway right of way leaving only SO feet of
the original 40 feet, In as much as there is very lit.tle
improvement on the east side of the railway the city of
Memphis may acquire an additional 30 feet of right of way
adjoining the east line of the present city street on the
east side of the railway thus restoring ,thestreet to the
original width of 40 feet,
"Before presenting this plan to the officials of the
railway company and the city of Memphis will you please
advise us if the railway company and the city of Memphis
have authority to make the exchange hereinabove outlined.
A rough pencil sketch is attached hereto for your further
information.V8
The facts in this request are insufficient, in that
it is not stated whether the railroad owns the right-of-way in
fee simple or merely has an easement over same0 We wil~l
Hon. D. C. Greer, page 2 CO-59lP)
endeavor to treat this matter under both assumptions.
At the very outset of this opinion we wish to make
it clear that if the right-of-way of the railroad company is
an interest less than fee simple, it must be condemned for
highway or street purposes.
16 Texas Jurisurudence. nase 681. provides as follows:
"Hut'it is a fundamental proposition of eminent do-
main that land that has been condemned for one use may not
be permanently used for another and different one."
In the case of O'Neal v. City of Sherman, 14 S.W. 319
plaintiff executed a deed to the city conveying a piece of
property for street purposes only, and the city in turn deliv-
ered the land to a company that had a contract to drill a water
well for the city. The Supreme Court held that the city could
not appropriate such land for the purpose of maintaining water-
works. See also Muhle v. N.Y. Tex.Mex. R.R., 25 S.W. 607.
Now if the railroad company owns the property in fee
simple, the railroad company has a right to convey same in fee
simple or any lesser estate to the city.
A title 6341, Vernon's Annotated Civil Statutes, pro-
vides as foflows:
"Railroad corporations shall have the following other
rights:
"6o To purchase, hold and use all such real estate
and other property as may be necessary for the construc-
tion and use of its railway, stations and other accommo-
dations necessary to accomplish the objects of its incor-
poration, and to convey the same when no longer required
for the use of such railway.
"7. To take, hold and use such voluntary grants of
real estate and other property as shall be made to it in
aid of the construction and use of its railway, and to
convey the same when no longer required for the uses of
such railway, in any manner not incompatible with the
terms of the original grant."
30 Texas Jurisprudence, 354, states that cities have
the authority to buy and sell property, said authority being
granted by the following Articles of Vernon's Annotated Civil
Statutes:
Hon. D. C. Greer, page 3 (O-5910)
4 states that after the city has complied
with the incorpora
- on statutes it shall:
e* * + have the power to sue and be sued, plead and
be impleaded, and to hold and dispose of real and personal
property provided such real property is situated within
the limik of the corporation.f'
Article 962:
tlAllthe inhabitants of each city, town or village so
accepting the provisions of this title shall continue to
be a body corporate *** and in all matters whatever, may
take, hold and purchase, lease, grant and convey such real
and personal or mixed property or estate as the purposes
of the corporation may require, within or without the lim-
its thereof; ***'l
The following Articles of Vernon's Annotated C;viP
Statutes,specifically provide that the city has the right to
condemn property of railroads:
brticle 1149:
"Any town or village in this State, incorporated un-
der 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 railway companywhose road-
bed runs within the corporate limits of such town or vil-
Iage, when deemed necessary 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;
***If
Article 1150:
llCountycommissioners shall have the right, upon petf-
tfon of twenty freeholders of any community, or unfncor-
porated town or city, to condemn roadbed of railroads for
the same purpose mentioned in the preceding article."
It is therefore our opinion that the city has the
right to condemn the property of the railroad for highway or
street purposes. Assuming that the railroad merely has an ease-
ment, it would be advisable to make the original grantors par-
ties to such condemnation proceeding,
Assuming that the railroad company owns the right-of-
way in fee simple, the city has a right to the west 40 feet of
Hon. D. C. Greer, page 4 (o-5910)
same for highway purposes; but we are unable to find any au-
thority that would permit the city giving the railroad company
the exclusive use of the 30 feet on the east of said railroad
right-of-way which has been dedicated as a public street.
Trusting this answers your inquiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
By /s/ W. P. Watts
W. P. Watts, Assistant
APPROvED MAY 4, 1944
/s/ Geo. P. Blackburn
(Acting) ATTORNEY GENERAL OF TEXAS
APPROVED: OPINION COMMITTEE
BY: OS, CHAIRMAN
WFW:EP:wb