Texas Attorney General Opinion: O-521 Page: 2 of 3
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Hon. Julian Montgamory, Tage 2
which formerly were county roads, on new looa-
tions, and finds itself in possession of valu-
able oil lands, which no longer are needed for
highway right of way purposes. !aay of the
tracts are small isolated areas whih could not
be utilized by counties as a part of the county
road system."
We take it from the above quoted portion of your letter
that none of the tracts in uestion were secured by an outright
deed in fee simple from the fee owner to the county or state and
answer your questions on that assumption. Therefore the most
that the state could own under the circumstances would be an
easement for highway purposes, Thus, when the road is closed
and abandoned the right to use and occupy the land would revert
to the owner free and clear of the easement and the state would
have no right to retain sane for other purposes, as the state
never had any r icht to use such land except for highway purposes.
The fee simple title burdened with the easement remained in the
owner thereof,at the time the easement was created, his heirs
and assigns. his is true whether the easement was acquired by
dedication from the owner for roadway purposes, acquired by pur-
chase of a right of way for roadway purposes, condemned under
the law of eminent domain for roadway purposes, or established
by prescription.
.:rticle 3270, revised Civil Statutes of 1925, under
Title 52, eminentt Domain", provides as follows:
"Except where otherwise expressly provided
by law, the right secured or to be secured to
any corporation or other plaintiff in this State,
in the manner provided by this law, shall not be
so construed as to include the fee simple estate
in lands either public or private, nor shall the
same be lost by the forfeiture or expiration of
the charter, but shall remain subject to an ex-
tension of the charter of the grant of a new
charter without a new conadenation."
In the case of Calvert et al., vs. arrls County, 46
8.We (Ed) 375, decided by the Court of Civil p pe&ls at Galves-
teon, wherein the defendants in a condemnation suit by the county
seeking to condemn certain of his land for road purpose oon-tended that he was entitled to the value of the minerals uaer
the lsnd taken, the court in overruling his contention used the
following languages
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-521, text, 1939; (https://texashistory.unt.edu/ark:/67531/metapth257703/m1/2/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.