Untitled Texas Attorney General Opinion ( 1961 )

THEATTORNEY GENERAL
OF TEXAS
March 14, 1961
Honorable Q. F. Steger Opinion No. WW-1017
County Attorney
Colorado County Re: Whether property already
Columbus, Texas appropriated to one public
use can be taken under
eminent domain laws for
another public us@ in the
absence of a showing that
the purpose of the taking
can be aocompllehed in no
Dear Mr. Steger: other practical manner.
You state in your opinion request that Colorado County
1s contemplating the condemnation of a lengthwise portion
of railroad spur right of way located In an unpopulated area
of the county for the purpose of building a aounty road. As
we understand the facts the county seeks to aoqulre that por-
tion of railroad right of way from the intersectlon of the
tracks and Farm-to-Market Road No. 950 in a aoutherly direc-
tion for almost a distance of one-half mile.
Prior to the consideration of condemnation the county
offered to purchase the needed right of way from the railway
company, which 1s not presently in use by the railroad. Sub -
sequently, the company declined to sell stating that such
segment of the railroad would be needed In the future.
In,,your opinion request your conclusl$n Is that the right
of way has not been abandoned . . . and you have ask-
ed the folio&g question:
“Can property already appropriated to one
public use be taken under applicable laws of
eminent domain for another public use In the
absence of a showing that the purpose of the
taking can be accomplished in no other practi-
cal manner?”
It is stated In Snellen v. Brazoria County, 224 S.W.2d
305 (Civ. App., 1949, error ref. n.r.e.) that:
Honorable G. F. Steger, Page 2 (ww-1017)
as a general rule, property appro-
priated to-the public purpose cannot be taken
for another public use without express or lm-
plied legislative authority when such taking
results in practical destruction of the prior
use unless the subsequent taking is for a
public purpose of greater or paramount lmport-
ante which cannot be accomplished in any other
practical way." (Emphasis added)
This rule was originally stated in Sabine & E. T. Ry.
Co. V. Gulf & I. Ry. Co. of Texas, 92 Tex. 162, 46 S.W. 784
8).
There 1s no applicable statute conferring the specific
authority needed by the county to condemn the desired portion
of railroad right of way. In the absence of such authority,
to sustain a subsequent taking under a general power, there
must be a showing of paramount importance or purpose and that
the power can be exercised In no other practical way, We
accordingly answer your question in the negative.
SUMMARY
In absence of legislative authority, property
appropriated to a public purpose cannot be
taken for another public use when such taking
will destroy or materially impair the prior use
unless the subsequent taking is for a paramount
public importance which cannot be accomplished
In any other practical way.
Yours very truly,
WILL WILSON
Attorney General of Texas
WHPjr:mm
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Edward A. Cazares
John C. Phillips
John Leonarz
Dudley McCalla
REVEIWED FOR THE ATTORNEY
GENERAL
BY: Morgan Nesbitt