No. JM-1241 (1990).
Case Date | November 08, 1990 |
Court | Texas |
Texas Attorney General Opinions
1990.
No. JM-1241 (1990).
November 8, 1990Opinion No. JM-1241Mattox
Opinion No. JM-1241Office of the Attorney General State of TexasHonorable Mike DriscollHarris County
Attorney1001 Preston, Suite 634Houston, Texas
77002Opinion No.
JM-1241Re: Authority of a county to trim, remove, or sell trees from
county road rights-of-way (RQ-1970)
Dear Mr. Driscoll:
You ask three questions regarding Harris County's authority with
respect to trees and shrubs growing within the rights-of-way of county roads.
Your first question is:
To what extent can the county trim, remove, sell or otherwise
dispose of trees or shrubs from the right-of-way of county roads or prevent the
planting of such trees and shrubs without being required to compensate owners
of the fee upon which the right-of-way exists?
Counties under their authority to open and lay out roads may
acquire the rights-of-way for such roads by dedication, purchase, condemnation,
or prescriptive easement. See V.T.C.S. art. 6702-1, subch. A (the County Road
and Bridge Act); 36 D. Brooks, County and Special District Law, ss 40.7, 40.25
(Texas Practice 1989). Your question and brief indicate that you are concerned
about the situation where the property interest the county has acquired in the
right-of-way is in the nature of an easement, the fee interest being retained
by the owner of the property abutting the right-of-way. See 43 Tex.Jur.3d
Highways s 116 (1985).
We caution at the outset that resolution of the issues presented
in your first question might ultimately depend on the facts of the particular
case-- e.g., the provisions of the conveyance, condemnation proceeding
judgment, or dedication under which the county acquired the particular
right-of-way in question. We cannot anticipate every factual situation that
might arise. The following discussion of pertinent legal authority is offered
for your guidance.
We think it is clear that the Harris County Commissioners Court
in exercising a right-of-way easement generally has authority to prevent the
planting of trees and shrubs within the right-of-way and to remove or cause to
be removed trees or shrubs growing there, when the court makes a reasonable
finding that the trees or shrubs would interfere with the right-of-way purposes
for which the easement was obtained. See Harris County Road Law, ss 1, 16,
Special Laws, Acts 1913, 33d Leg., ch. 17, at 64 (Harris County Commissioners
Court to have control of all roads laid out or constructed by the county and of
all matters in connection with the construction or maintenance of such roads);
id. s 12 (condemnation authority); id. s 33 (Harris County Road Law cumulative
of other laws); V.T.C.S. art. 6702-1, s 2.002(b)(1) (under the County Road and
Bridge Act, commissioners court may make and enforce all reasonable and
necessary rules for the construction and maintenance of county roads except as
prohibited by law); id. s 2.004 (condemnation authority). We note, too, that
where the trees or shrubs are determined to impair visibility for motorists
using the county road in question, Harris County as one with a population of
950,000 or more has authority under subchapter F of article 6702-1, through its
commissioners court, to define sight distances at intersections and to prohibit
and provide for the removal of trees and shrubs obstructing such sight
distances (presumably both within and without the area of the right-of-way). In
the absence of a showing of fraud or gross abuse of discretion, the
commissioners court's determinations as to the need for removal of trees and
shrubs in the right-of-way for right-of-way purposes would be conclusive. See,
e.g., West Prod. Co. v. Penn, 131 S.W.2d 131 (Tex.Civ.App.--San Antonio 1939,
writ ref'd).
As to whether the owner of the underlying fee in the
right-of-way is entitled to compensation for removal of trees or shrubs from
the right-of-way, though we note some possible inconsistencies among the Texas
cases, we think that the cases dealing most directly with this question
indicate that the fee owner generally has no right to compensation.
[fn1]
In a decision approved by the supreme court, the Commission of
Appeals in City of Fort Worth v. Gilliland, 169 S.W.2d 149 (Tex.Comm'n
App.1943, opinion adopted), ruled that fee owners could not enjoin the city's
destruction of curbs, sidewalks, trees, or shrubs in the street right-of-way,
even where those improvements had been installed by the fee owners in
compliance with a...
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