Judges: JOHN CORNYN, Attorney General of Texas
Filed Date: 6/22/2000
Status: Precedential
Modified Date: 7/6/2016
Office of the Attorney General — State of Texas John Cornyn The Honorable Gary L. Walker Chair, Committee on Land and Resource Management Texas House of Representatives P.O. Box 2910 Austin, Texas 78768-2910
Re: Whether a county may permit the installation of temporary water lines along its right-of-way (RQ-0164-JC)
Dear Representative Walker:
You have asked this office two related questions concerning whether the commissioners court of Martin County may permit the installation by oil companies of temporary water lines along the county's right-of-way. In our view, the resolution of the first of these questions is governed by a recent opinion issued by this office, Attorney General Opinion
You explain the situation giving rise to your first question thus: "In Martin County, the county commissioners allow oil companies to run temporary water lines along the county right-of-ways. Individual landowners have protested, asserting that the county does not have the right to use their right-of-ways for this purpose." Letter from Honorable Gary L. Walker, Texas State Representative, to Honorable John Cornyn, Attorney General of Texas (Dec. 15, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"].
We note at the outset that your question concerns the temporary placement of water lines to benefit an oil company, rather than the placement of public utility lines. It is well-settled as a matter of both statute,see, e.g., Tex. Util. Code Ann. §§
In either case the responsible officials may, within the limits of the power vested in them by the Legislature, authorize the use of the subsurface for sewers, pipelines and other methods of transmission and communication that serve the public interest. This was taken for granted when the Legislature provided that public utilities might lay their water, gas and electric lines under public roads and city streets after notifying or obtaining the approval of the proper agency.
Hill Farm, Inc. v. Hill County,
However, the county's roadway easement does not as a matter of law include a right to grant a further easement to nonowners of the property to install pipelines for the nonowners' private benefit. In Hale Countyv. Davis,
A situation analogous to the one about which you ask here was presented in Attorney General Opinion
"The test whether an easement acquired by a public body may be burdened with" a particular use is whether the grantor reasonably could have contemplated such a use as within the easement at the time the easement was granted. The understanding of the parties to the easement may be relevant to the [grants'] construction, and that understanding cannot be decided without examining factual evidence.
Tex. Att'y Gen. Op. No.
Whether the particular grants of easement in this case are sufficiently expansive to permit the county to use the right-of-way in the manner you suggest depends, that is to say, on the terms of the grants and the intentions of the grantors. Such determinations require fact-based inquiries of the sort in which this office does not engage in the opinion process.
Attorney General Opinion
Just as the question of whether a particular easement permits the Water District to install fiber-optics cable or to lease its excess fiber-optics cable capacity, the question of whether the easement grantor must be compensated for the installation or lease involves interpretation of the easement itself and the resolution of numerous fact questions. Where an easement is granted for general purposes, the subservient estate includes the use required at the time of the grant as well as the right to use the easement for any purposes incidental to the use to which the property has been put. . . . Whether a secondary use constitutes an additional burden for which the grantor must be compensated is a question that cannot be resolved in the opinion process.
Id. at 5 (citations omitted).
As we have said, the roadway easement does not as a matter of law include a right for the county to grant further easements to nonowners. See HaleCounty,
Your second question is "whether . . . the county's use of the right-of-way would apply to prescription roads." Request Letter, supra, at 1. By prescription roads, we understand you to mean roads in which the county has acquired its right-of-way by prescriptive easement. We note again that such an easement "is no less comprehensive than one acquired by grant, dedication or condemnation." Hill Farm, Inc.,
We have located no Texas cases dealing precisely with the scope of such an easement, and accordingly turn to the Restatement of Property for our analysis. We note that the Restatement has in other instances been used as a source of law in Texas cases. See, e.g., Houston Bellaire, Ltd. v.TCP LB Portfolio I, L.P.,
In place of the terms of a grant, section 478 of the Restatement of Property offers another method of analysis for the scope of easements acquired by prescription:
In ascertaining whether a particular use is permissible under an easement created by prescription a comparison must be made between such use and the use by which the easement was created with respect to:
(a) their physical character,
(b) their purpose,
(c) the relative burden caused by them upon the servient tenement.
Restatement of Property § 478 (1944).
An easement for surface travel is, of course, different from an easement for the subsurface placement of water lines in both physical character and purpose. Accordingly, the question here, as in the case of the right-of-ways obtained by grant or dedication, will turn upon whether the proposed use creates a substantial burden upon the right-of-way; and again we cannot answer such a fact-based question in an attorney general opinion.
However, we note again that if the sole basis upon which the county believes that it may provide this easement to the oil company is its right — whether acquired by grant or prescription — to permit the use of the right-of-way for the laying of public utility lines, HaleCounty v. Davis is to the contrary. As the court said in that case, "the county possesses no authority in law to grant an easement in the road's subsurface owned by an individual for the exclusive private use of a nonowner." Hale County,
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General — Opinion Committee
Hill Farm, Inc. v. Hill County , 436 S.W.2d 320 ( 1969 )
Hale County v. Davis , 572 S.W.2d 63 ( 1978 )
Blackburn v. BRAZOS VALLEY UTILITIES, INC. , 777 S.W.2d 758 ( 1989 )
Houston Bellaire, Ltd. v. TCP LB Portfolio I, L.P. , 981 S.W.2d 916 ( 1998 )
Grimes v. Corpus Christi Transmission Co. , 829 S.W.2d 335 ( 1992 )