City of San Antonio v. United Gas Pipe Line Co.

• Decision Date: 03 February 1965
• Docket Number: No. 14340,14340
• Citation: 388 S.W.2d 231
• Parties: CITY OF SAN ANTONIO, Appellant, v. UNITED GAS PIPE LINE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 231

388 S.W.2d 231

CITY OF SAN ANTONIO, Appellant, v. UNITED GAS PIPE LINE COMPANY, Appellee.

No. 14340.

Court of Civil Appeals of Texas, San Antonio.

Feb. 3, 1965.

Rehearing Denied March 3, 1965.

Samuel S. Wolf, City Atty., Crawford B. Reeder, Asst. City Atty., San Antonio, for appellant.

Carl Wright Johnson, William R. Simcock, San Antonio, for appellee.

MURRAY, Chief Justice.

This is an injunction suit brought by the City of San Antonio against United Gas Pipe Line Company, to enjoin it from using a highway and two public streets of the City of San Antonio for its gas pipe line without a franchise from the City. United Gas answered, stating that it had a license from Southern Pacific Railroad Company to construct its pipe line along the railroad right-of-way, that the city streets constituted only easements across this right-of-way, that the pipe line had been tunneled under the city streets, that cities have no power with respect to such subsurface installations, and that the statutes, charter and ordinances granting the City the right to control its streets are unconstitutional.

The trial was before the court without the intervention of a jury. Both injunctions, temporary and permanent, were denied, and the City has prosecuted this appeal. We have concluded that the trial court erred in refusng the injunction, and therefore the judgment must be reversed and judgment here rendered granting the writ of injunction as prayed for by the City.

San Antonio is a home rule city and has been given exclusive control of its streets and alleys. The highway and two streets under which United Gas had tunneled its pipe line were City of San Antonio streets, and regardless of who owned the fee simple title under such streets the City had the exclusive control thereof.

In 12 McQuillin, Municipal Corporations, Sec. 34.14, we find the following statement:

'In determining whether a municipality has the power to grant to a public utility company the right to use a street or streets, it is wholly immaterial whether the municipality owns the fee in the soil over which the streets are laid out, or only an easement; * * *.'

The City based its right to control its streets on Secs. 16 and 12 of Art. 1175, Art. 1436b, and Art. 6021, Vernon's Ann.Civ.Stats., all of which grant to the City exclusive power to consent to the use by a utility company of public streets within its corporate limits. All powers conferred by these statutes have been adopted by the charter and ordinances of the City of San Antonio.

We fully agree with the following statement contained in appellant's brief:

'The power to control its streets granted to the City by the statutes has been held to include the power to prohibit subsurface installation of utility services, even where the surface of the street of left completely intact. In West Texas Utilities Company v. City of Baird, 286 S.W.2d 185 (Eastland Civ.App., 1956, writ ref. n. r. e.), the Court upheld the permanent injunction requiring the removal of the subsurface electric lines, holding that 'the construction and maintenance of distribution lines by tunneling under the street is a use of the street as contemplated in the statutes under which incorporated cities derive their power and control over streets and alleys.'

'The Courts have also held that a city's powers and the public's rights with respect to streets extend to railroad crossings the fee simple title to which is owned by the railroad, even where the street has never been formally dedicated and the railroad has maintained the street within the right-of-way area. City of Dublin v. Barrett, 242 S.W. 535 (San Antonio Civ.App., 1922, writ dis.).

'The authorities also are clear that a city's police power over its streets extends to street crossings within railroad right-of-way, even where the right-of-way was acquired before the city street came into existence. Houston & T. C. Ry. v. Dallas , 84 S.W. 648 (1905); City of Beaumont v. Priddie, 65 S.W.2d 434 (Austin Civ.App., 1933, reversed on other grounds [Texas & N. O. R. Co. v. Priddie, Tex.Com.App.,] 95 S.W.2d 1290).

'These statutes and these three lines of cases fully uphold the power of the City of San Antonio to control the use of its streets whether they are downtown thoroughfares or railroad crossings, whether the fee ownership under the street is in an adjoining landowner or in the railroad, whether the desired use is to operate a bus system on the street or to install utility lines under the street, and whether the railroad or the street was there first. The City's power to control the streets necessarily involves the authority to prohibit the utility's use of the streets entirely if the judgment of the City Council dictates it and certainly the duty to do so...