Case Information
*1 I
OFFICE OF THE ATT’ORNEY GENERAL OF TEXAS AUSTIN
lion, Julian Montgomery
State Highway Engineer
Austin, Texan
Dear Mr. Montgomery:
state highway?
, Texas Highway eta and develop questiona you stated: built, and maintained by the it, hee been our experience that ose days rarely ever obtained to the r Qht of way ior such And you further stated:
WOW, a8 highway construction has progressed through the years slnoe 1917, the Highway Commis- slon has seen fit to rebuild Borne of the highways *2 Hon. Julian Montgomery, rage I!
which formerly were oounty roads, on new looa- tlons, and find6 Itself la paseeslon 0r ralu- able 011 lands, which no lower are needed for hl&way rl6ht of way pur sea. Xany of the areas whloh oould not tract6 are 8~~~11 laolate r be utllleed by counties EII e part of the county rood Syetemr~
Vi@ take it from the above quoted portion of your letter that nolie Of the troota in question were scoured by an outright deod in fee simple from the fee omer to the county or state and cnswer your questions on that aerumptlon. Therefore the most that the state oould own under the ciromstanaos would be an ~~~ene~~n”,dhi$$we~urpoSOS. %ium,, when the road 18 closed
t to use aud oocupy the land would rovort to the owner free and clear of the sasemsnt end the state would have no right to retain 6aae for other purpoaee, us the state
ht to UIe such land eroept for highway purposes. burdened with the easement remained in the nover hed “p ‘Y The fee slrap e t tle owner thoroor ,frt the tlmo the essement was oreutod, his heirs Ahis Is tme whether the easement wea aoqulred by and nssl~ns. dedication from the owner ior roadway purposea, aOqulre6 by pur- chase of o rlcht of way for roadway purposes, coodomed under the law of oninent domln for roadway purposes, or established by prasorlptlon.
irt 10 lo 3Z70, gevlsod Civil Statutes of 1926, under Title 62, “mlnent 5mml.n” , provides 8s follaws: mzxoept wbere otborwlso expressly provided
by law, the rlcht asoured or to be 8ecurod to any oorporatlon or other pimtirr in thl~ Gtete, ln the manner provided by this law, shall not be so construed as to include the fee simple esttite lends either pub110 or private, nor ahall the SW be ioet by the forfoituro or orplratlon or the uharter, but ohall rmln subjeot to an 0x1 teuslon 0f the charter of the grant of a new charter without a new c0nd0anat10n~"
In the oese of Celvort of al., vs. liarrle County, 46 8, w . (2d) 375, decided by the Court or Clvll 1ip 0~1s at Galves- tons wherein defendants In a oondennntlon s- up t by the county t,o condmn 0ertal.n of his land for road ptiposm Oon- meI& tended ‘that ha wao entitled to the value of the minerale under court In overrulinc his ContentiOn used t&Q the lad t&en, *3 Eon. Julian Montmmery, rage 3
“The l ttlod is that rule in ooaber~~tlon prooeedl~r only aa easement is ao@red and that suoh saroment is all that the law requires to be paid ior.” Ve find in T&as JUdB&WUdenoo the followlne l~us.go~ Wbder the law of eminent doaeln a highway easement only ls ao uired b condemaatlon~ the foe remains re8tea & htidose TO rty was oon- damed, the pub110 r lfht P8 $Ut 0ll OeBO- idso, mont when the roadway is ded oated by tho owner or aoqulrod b&pT:;h";v establlBhed by pre- soriptlon.~ w~waysm.
2100 al;0 60&E
#L&l~g l i2dl 457
al. YI. G
B1880ur1, 7
undOI-. answer to your rlrst question, it is opinion of this dopartmnt that the state only has an oasanont for road right of way purposes.
For the reasons expressed in our answer to your first c,uestIon your seooad on4 third quostlon8 em answered in the negatlrer
Ii ws are wron& in the 688UnptiOn that non0 ot the tracts in question wsre deeded in fee 8lsi1Ao to aountlss or to ths state then p10ase furnish us tith ooplos o? such deeds as you haye )or our construction and further Opinion.
Yery truly yours w
D. D. Xmbon Assistant DDL!rjm AFGe7z ’