|Legal Opinion: |
Text of Document: 1. Can cities in Tennessee pass regulations on structures and excavations in their street rights-of-way?
2. Can cities in Tennessee pass regulations on structures and excavations on private property that abuts their street rights-of-way and is so near the rights-of-way that it is a threat to traffic safety?
The answer to both questions is yes.
The facts that underlie the questions create some confusion with respect to how street widths are determined in general, and how they are determined in __________ in particular. For that reason, let me quote the facts reflected in the letter:
For several months I have discussed with ___________ the possibility of developing an ordinance that places a limitation on construction on private property that is located along the shoulder of the road. In talking with other cities, I find that many have established their right of way to be at least six feet beyond the road’s edge. For older cities, like Gatlinburg, [they?]have established that certain types of construction will not be prohibited [Should that read “will be prohibited”?] because of the potential danger to the motorist. __________ does not have any ordinances that address construction along the side of the road and the seriousness of this situation is coupled with the fact that many of the roads are old, narrow and curvy. This year they had a problem with a doctor who built a stone drainage ditch on his property that was at the road’s edge. The slope of the ditch was about 65 degrees and it was approximately four feet deep. This created a safety hazard for motorists of the city but the city did not have any regulations or ordinances that prohibited this construction.
Because those facts reflect a misunderstanding of how the dimensions of street rights of way are determined, and because that misunderstanding has serious implications for both Question 1 and Question 2, let me first outline the law on that subject.
Establishing Streets and Their Boundaries.
Municipalities cannot simply declare that the boundary of a municipal street is six feet beyond the road’s edge. It is said in 7A McQuillin, Municipal Corporations, section 24.569, that:
The question of the location of street lines sometimes arises in connection with police power over streets. In this connection it is not for a municipality to determine in the sense of adjudication where a street line is in the exercise of its police powers, although it must for practical purposes determine the location of street lines subject to appropriate judicial relief against any error it makes in such a matter. Thus, power to enact ordinances for “preventing and removing all encroachments in or upon the streets” and “to pass ordinances for the purpose of declaring what shall be considered nuisances and to prevent and remove all encroachments” confers no authority to adjudicate in the case of a dispute between the public and adjoining landowners as to the proper location of the street line. Nor can a municipality or its officers by agreement or conventions, which are not legal mode for the establishment of its streets, establish a street line; streets must be established by dedication or some other legal mode.
Tennessee law is in accord with that general rule. The width of municipal streets is governed by statute in some cases, and by case law in others.
A. Establishment of Streets.
It was said in Henry County v. Summers, 547 S.W.2d 247, 250 (Tenn. App. 1976), that:
Unless a passageway has been created a public way in some manner known to the law, such as by act of the public authorities, or the express dedication by the owner, or by an implied dedication by means of the use by the public and acceptance by them with the intention of the owner that the use become public, or by adverse user for a period of 20 years continuously creating a prescriptive right, it is not a public way.
The creation of public ways “in some manner known to the law” includes:
1. County roads automatically become city streets upon the incorporation of the city or by annexation of territory into the city. [See 64 C.J.S., Municipal Corporations, Sec. 1661; T.G. Jordan et al. v. City of Cleveland, 148 Tenn. 337 (1922).] However, generally the county road map reflecting what county roads existed at the time of the incorporation will not include the width of the roads.
2. Streets constructed in a city by the state or any political subdivision of the state are city streets. State Highways running through municipalities are simply municipal streets over which state traffic is routed, and the municipality retains its police powers over such streets. [See Collier v. Baker, 27 S.W.2d 1085 (1930); Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (1948); Paris v. Paris-Henry County Utility District, 340 S.W.2d 885 (1960)].
While a county or other political subdivision of the state can own easements for various purposes within a municipality, any street constructed by a county or other political subdivision of the state inside a municipality, or any county or other political subdivision property inside a municipality generally opened to public travel, is a municipal street. [Callahan v. Middleton, 292 S.W.2d 501 (Tenn. App. 1954), Rutherford County v. Murfreesboro, 309 S.W.2d 778 (Tenn. 1957); Thompson v. Memphis, 66 S.W. 990 (Tenn. 1934); Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (Tenn. 1948).]
3. Formal dedication and acceptance. This method contemplates a formal offer, and a public acceptance of, the dedication. [See Smith v. Black, 547 S.W.2d 947 (Tenn. App. 1977)]. A statutory method for the formal dedication and acceptance of subdivision streets is found in Tennessee Code Annotated, section 13-4-301 et seq. However, it is also said in 10A McQuillin, Municipal Corporations, section 33.30, that one of the ways to show intent to dedicate land to public use is by “recitals in a deed in which the rights of the public are recognized.” For that reason, I include within the category of formal dedication and acceptance instances where a municipality acquires land for a street by formal purchases.
4. Implied dedication and acceptance. This method measures the conduct of the parties. It is said in Roger v. Sain, 679 S.W.2d (Tenn. App. 1984), that:
It has long been established that private land can be implicitly dedicated to use as a public road. [Citation omitted.] When an implied dedication is claimed, the focus of the inquiry is whether the landowner intended to dedicate the land to a public use. [Citations omitted.] The proof on the issue of intent to dedicate may be inferred from surrounding facts and circumstances, including the overt acts of the owner. [Citation omitted.]
Citing an earlier case that quoted from Elliot on Roads and Streets, section 92, the Court continued:
Among the factors which indicate an intent to dedicate are: the landowner opens a road to public travel [Citations omitted.]; acquiescence in the use of the road as a public road, [Citations omitted.]; and the fact that the public has used the road for an extended period of time. [Citations omitted.] While dedication is not dependent on duration of the use, extended use is a circumstance tending to show an intent to dedicate. [Citations omitted.] Finally, an intent to dedicate is inferable when the roadway is repaired and maintained by the public.
It was also said in Reeves v. Perkins, 590 S.W.2d 233, 234-35 (Tenn. App. 1973) that, “Dedication may arise from the failure of the owner to object to user by the public. A highway may be established in this manner.”
However, apparently there may be a formal dedication and an implied acceptance of a street easement. The approval and recording of a subdivision plat does not constitute acceptance of the subdivision roads, but probably does constitute formal dedication of the roads. If the city fails to formally accept the dedication, its conduct in the use of the street may constitute implied acceptance. [See Smith v. Black, cited above; Hackett v. Smith County, 807 S.W.2d 695 (Tenn. App. 1990).]
Some of the acts that indicate implied acceptance of the street on the part of the city include tolerance of common use by the public, construction and maintenance by city and other utilities of utility installations in the street, listing on an official street map, use of the street by school buses, law enforcement agencies, and absence of the street from the tax rolls and special assessments. [See State ex. Rel. Matthews v. Metro. Gov’t of Nashville, 679 S.W.2d 946 (Tenn. 1984); Hackett v. Smith County, 807 S.W.2d 695 (Tenn. App. 1990); West Meade Homeowners Association v. WPMC, Inc., 788 S.W.2d 365 (Tenn. App. 1989).]
No specific time limit triggers an implied dedication. In Nicely v. Nicely, 232 S.W.2d 421 (Ct. App. 1949), an implied dedication arose from five years use, along with other circumstances, including road grading with public funds. In Payton v. Richardson, 356 S.W.2d 289 (Tenn. App. 1962), the Court declared that, “The manner of its use is more material than the length of time the use has continued.”
5. Prescription. A street easement arises by prescription when a person, including a government, uses another person’s land as a street openly and notoriously under a claim of right for an uninterrupted period of twenty years. It is said in Morgan County v. Goans, 198 S.W. 69 (Tenn. 1917), that, “Twenty years’ adverse possessor will establish a right-of-way either in the public or in private persons.” The claim of right and acceptance of the street by the government can be shown by public maintenance of the street. [Also see Callahan v. Town of Middleton, 292 S.W.2d 501 (Tenn. Ct. App. 1954); Morgan County v. Goans, 138 Tenn. 381, 198 S.W. 69 (1917); City of Knoxville et al. v. Sprankle, et al., 9 Tenn. App. 218 (1928); Lewisburg v. Emerson, 5 Tenn. App. 127 (1927).]
5. Eminent domain. This is a taking of land authorized under various laws of Tennessee. Generally, the dimensions of the taking are usually clear.
B. Determining the Width of the Street Easement.
Sometimes the width of street easements can easily be ascertained from a plat, deed, or other allied documents. That is probably most true of streets established by formal dedication and acceptance, by formal dedication and implied acceptance, and by eminent domain. However, often no documents exist with respect to many street easements, particularly in the case of implied dedication and acceptance and of prescription, or the documents do not specify the width of the easement.
The heavy weight of authority in the United States is that where there is an express grant of a street easement that does not specify its width, the width is determined by the intention of the parties to the grant, and that intention is determined from the facts and circumstances, sometimes including the use of the easement. Generally, the width determined by the courts is what is reasonable, convenient, and suitable. [28 A.L.R.2d 253]
That appears to be the rule in Tennessee. With respect to streets created by formal dedication and acceptance, it was said in Town of Benton v. Peoples Bank of Polk County, 20 TAM 20-24 (Tenn. Ct. App. E.S., 1995), that “the object in all boundary cases is to find, as nearly as may be, certain evidence of what particular land was meant to be included for conveyance.” It was also said in Doyle v. Chattanooga, 128 Tenn. 433 (1913), that:
The execution of an official map by the city, showing the street offered to be dedicated to be such, has also been held to be evidence of an acceptance. [Citation omitted.] Where the dedication is clearly defined, as in this case by a registered map, and the public user is of the whole, practically speaking, the presumption is that an act of acceptance of a part thereof is an acceptance of the whole. [Citations omitted.] [At 441.]
It is often difficult to determine the width of street easements acquired by prescription.
It is said in 29 Am.Jur.2d Highways, Streets and Bridges, sec. 52, that:
as general proposition, the width of a highway established solely by prescription or user is determined by the extent of such use.... While there are cases which appear to recognize that a highway acquired by prescription or user does not extend beyond the beaten or traveled path, it is more generally held that the public easement is not necessarily confined strictly to the beaten or traveled path in every instance. In some cases the determination of the width of a highway acquired by prescription or user rests upon whether or not a particular width is necessary for the convenience of the public.... Ditches along the side of a highway acquired by prescription or user are generally regarded within the boundaries of a highway.
It is likewise said in 10A McQuillin, Municipal Corporations, sec. 39.29 that:
The extent of the prescriptive easement, it is held, is governed entirely by the extent of the user. The boundary of a public highway acquired by public use is a question of fact to be determined by the appropriate finder of fact. This is to say, that the extent of a street or alley acquired by prescription is generally limited to the portion actually used.
But 10A McQuillin, Municipal Corporations, section 30.22 also says, that:
It has been held that the width of a prescriptive easement is not limited to that portion of the road actually traveled, and it may include the shoulders and the ditches that are needed and have actually been used to support and maintain the traveled portion.
76 A.L.R.2d 535 says that the width of street easements established by prescription is determined by the extent of use. It also appears to conclude that generally the width of such easements includes not only the traveled portions of the street, but also such adjacent land reasonably necessary for public travel as determined by the peculiar circumstances of the case in question, and such additional land as might be needed for repairs and improvements. It also points to cases holding that the easement includes drainage ditches and waterways.
Finally, 10A McQuillin, Municipal Corporations, section 30.03 says that, “Street, in a legal sense, usually includes all parts of the way--the roadway, the gutters and the sidewalks.”
Many cases in Tennessee deal with the question of whether a street is a municipal street. While some of them deal with the question of the width of the street, most provide little or no practical guidance to cities for determining the width of their streets.
However, it was said in Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946), that, “The term street in ordinary legal signification includes all parts of the way, roadway, gutters and the sidewalks.” In that case the width of the street easement in that case was clearly 40 feet, and the only question was whether the city had the authority to build a sidewalk within that easement as a form of public travel, but the proposition that the width of the “street” includes the roadway, gutters and sidewalks appears to apply to street width in general.
In State v. Mains, 634 S.W.2d 280 (Tenn. Cr. App. 1982), the Court considered the question of whether a defendant charged with vehicular homicide arising from drunk driving was on the “highway,” when the homicide occurred off the paved portion of the roadway. The area in question was described by witnesses as a:
‘pull-out place’ and was described by one officer as being two hundred to three hundred feet long and wide enough for two or three cars to park side by side. This officer also testified the area was part of the ‘state highway right of way.’
Pointing to the definition of “highway” in Tennessee Code Annotated, section 55-8-101(20) [now (21)], the Court declared that, “The word ‘highway’ is defined for the purposes of the drunken driving statute as: ‘The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” [Note: the term “publicly maintained” was removed from the statute by Public Acts 1988, chapter 555]. Then the Court went on to determine what that width included:
The term ‘public highway’ has been described by our Supreme Court as ‘such a passageway as any and all members of the public have an absolute right to use as distinguished from a permissive privilege of using same.’ [Citations omitted.] Other states have held that the “shoulder” of a highway is included in the term ‘highway.’ [Citations omitted.] Interpreting a legislative definition similar to ours cited above, the North Carolina Supreme Court held that the statutory reference to the ‘entire width’ includes everything between the right of way lines of the ‘highway’ for statutory purposes.
Those definitions included the pull-off, concluded the Court.
That case is also pertinent to the width of streets because the definition of “street” in Tennessee Code Annotated, section 55-8-101(60), is exactly the same as the definition of “highway” in the same statute.
Tennessee Code Annotated, section 54-5-202, governs the width of state highways running through municipalities:
The streets so constructed, reconstructed, improved, and maintained by the state shall be of such width and type as the department may think proper, but the width so constructed, reconstructed, improved and maintained shall not be less than eighteen feet (18'); and in the case of resurfacing and maintenance, from curb to curb where curbs exist, or the full width of the roadway where no curbs exist.
If a municipality declares the width of the right-of-way to include six feet beyond the road’s edge, it will have set the stage for the abandonment of its street easements wider than six feet past the road’s edge. It may also have inversely condemned private property in those cases where the street easement is narrower than six feet beyond the road’s edge. The width of most streets probably extends at least six feet beyond the actual road’s edge, but most cities probably have many streets where, at least for some portion of their lengths, that is not true.
With respect to ___________, limited territory beyond the shoulders of most of the city’s streets is probably already within the city’s street rights-of-way. The doctor who built the stone drainage ditch at the road’s edge might have built the ditch in the city’s street right-of-way. However, the only way to determine if he did so is to determine how the street was created and the dimensions of the creation. That may or may not be difficult to do.
Although a city is wise to have a street right-of-way management ordinance, it needs no such ordinance to individually stop abutting property owners, or any other person, from constructing ditches or any other structure in the street right-of-way that are nuisances. Obviously, a street right-of-way management ordinance is a far better tool than individual decisions to provide a means for property owners to reach their property across ditches that are part of the street rights-of-way, and to regulate other private property access problems.
Question 1 Analyzed The Nature of Street Easements.
Cities usually do not own most of their streets in the sense of owning the underlying fee. Usually the abutting property owners own the underlying fee to the center line of the street, and the city has only a transportation easement or right-of-way across the property for the use of public travel. [See Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898); Patton v. Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901).]
Generally, the owners of easements of any kind have the right to use those easements only for their intended purpose, the corollary of which is the property owners abutting easements have the right to use the property consisting of the easement in any way that does not affect the purpose of the easement. [See Yates v. Metropolitan Government of Nashville and Davidson County, 451 S.W.2d 437 (Tenn. Ct. App. 1969); Southern Ry. Co. v. Vann, 142 Tenn. 76, 216 S.W. 727 (1919); and U.S. ex rel. And for the Use of Tennessee Valley Authority v. An Easement and Right of Way 150 Feet Wide and 582.4 Feet Long Over Certain Land in De Kalb County, Tennessee, 182 F. Supp. (D.C. Tenn. 1960).] However, because the purpose of the easement is for public travel from side to side and end to end, property owners abutting street rights-of-way have little or no more right than any other person to encroach upon such streets.
Legal Theories Under Which Municipalities Can Regulate Obstructions and Excavations In Their Street Rights-of Way.
It is probably fundamental that cities can generally prohibit obstructions and excavations of virtually every kind and description in their street rights-of-way. Cases dealing with obstructions in city streets have taken three approaches to such prohibitions:
1. The regulation is permitted as a legitimate exercise of the city’s police powers.
2. The regulation is permitted because the city has the right to control the use of its streets.
3. The regulation is permitted as a legitimate exercise of the city’s police powers and the city has a right to control the use of its street. [See 80 A.L.R.3d 687.]
Of the two legal theories, the police power in most jurisdictions, and in Tennessee in particular, appears the most important.
It is said in 7A McQuillin, Municipal Corporations, that:
Municipal police power extends broadly to prohibit or regulate all projections of private property or uses on or over streets, sidewalks, alleys and other public ways.
That rule allows broad municipal restriction upon virtually all kinds of encroachments upon street rights-of-way. The public is entitled to use the entire width and length of streets; for that reason most, if not all, encroachments upon street rights-of-way affect the purpose of the right-of-way. Municipal authority to eliminate encroachments by buildings, fences, trees, hedges, and other plants, taxicab and other stands, sidewalks, awnings, private fire hydrants, embankments, driveway aprons, signs, and other things. That is true even where the encroachments have been in existence for many years, often with the knowledge and even the permission of the municipality. That authority has been upheld as a legitimate exercise of a municipality’s police powers, as an exercise of a municipality’s right to control the use of its own property, or on both grounds. [See Sims v. Chattanooga, 70 Tenn. 695 (Tenn. 1879); Maxwell v. Lax, 292 S.W.2d 223 (Tenn. App. 1954); numerous cases cited in 44 A.L.R.3d 257, 81 A.L.R.3d 564; 80 A.L.R.3d 687; 7A McQuillin, Municipal Corporations, section 24.586.]
It has been held that “very broad powers of regulation, and wide discretion, in the exercise of the police power, are held to be vested in municipalities in touching the use of its streets.” [See Steil v. City of Chattanooga, 152 S.W.2d 624, 626 (Tenn. 1941).] It has also been held that the courts will not interfere with the exercise of that discretionary power except in the case of fraud or clear abuse of power. Those police powers also extend to state highways running through cities. [See Collier v. Memphis, above; Blackburn v. Dillon, 225 S.W.2d 47 (Tenn. 1949).]
In addition, in Tennessee (as in other states) municipalities have an affirmative obligation to prevent the obstructions of, and incursions into, their streets. [See City of Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914); State v. Stroud, 52 S.W. 697 (Chan. App. Tenn. 1898); Stewart et al. v. Illinois Central Railroad Co., 143 Tenn. 146 (Tenn. 1920). Also see 14 A.L.R.3d 896, and 7A McQuillin, Municipal Corporations, section 24.573--578.] That authority would extend to shoulders and ditches where those are part of the road.
Municipalities also have a broad right to reasonably restrict access to their streets by abutting property owners by means of traffic regulations, divided highways, traffic signals, limitations on driveways, and other regulations. [See 73 A.L.R.2d 652; 73 A.L.R.2d 689.]
The police power over a municipality’s streets in Tennessee is a governmental power that cannot be contracted away or otherwise surrendered. [Paris v. Paris-Henry County Public Utility District, 340 S.W.2d 885 (Tenn. 1960).]
Question 2 Analyzed
Police Power Regulations Over Territory Abutting, But Not Within, Street Rights-of-Way.
The question of the extent to which the city can regulate the placement of structures that lie outside the street (including the shoulders and ditches) is more difficult. It is said in 7A McQuillin, Municipal Corporations, section 24.568, that:
On the face of the matter, any land within the territorial extent of a public street, sidewalk, alley or other public way is subject to municipal police control of streets; conversely, at least as a general rule, private ways and grounds are not subject to police regulation of a municipality relative to its streets.
But that general proposition does not hold with respect to the activity of private property owners abutting street rights-of-way, where those activities pose a hazard to street traffic. Indeed, the police power generally pertains to the right of a municipality to impose restrictions on the use of private property through reasonable laws and ordinances that are necessary to secure the safety, health, good order, peace, comfort, protection and convenience of the state or a municipality. That right is broad and well-established. [S & P Enters, Inc. v. City of Memphis, 672 S.W.2d 213 (Tenn. Ct. App. 1983); Rivergate wine & Liquors, Inc. v. City of Goodlesttsville, 647 S.W.2d 631 (Tenn. 1983); Penn-Dixie Cement Corporation v. Kingsport, 225 S.W.2d 270 (Tenn. 1949); Miller v. Memphis, 178 S.W.2d 382 (Tenn. 1944).] The question of whether a police power regulation is reasonable requires a two prong test: First, the regulation must bear some relationship to a legitimate interest protectible by the police powers; second, the regulation may not be unreasonable or oppressive. [Rivergate Wine and Liquors, Inc., v. City of Goodlettsville, above.] Carefully drawn regulations governing obstructions and excavations outside but so near to the traveled portion of the street right of way that they are a hazard to traffic safety should meet both prongs of that test.
It is undoubtedly within the police powers of municipalities to regulate other uses of property abutting, but outside, street rights-of-way. For example, the overwhelming weight of authority in the United States is that municipalities have the authority to prohibit advertising structures within a certain distance of streets and highways. It is said in 81 A.L.R.3d 564 that, “Thus, no case within the scope of this annotation disputes the proposition that a reasonable provision prohibiting the erection or maintenance of advertising structures within a specified distance of a street or highway, which bears a substantial relation to the public health, safety, or general welfare, constitutes a valid exercise of the police power.” [At sec. 2[a].]
I can find no cases on the question of whether the placement of large masonry-type entrance ways to private property near street rights of way can be regulated under a municipality’s police powers. That search is still on going. I have reviewed a number of ordinances governing right of way management and find none in which the government in question attempts to regulate construction beyond street rights of way. However, if such regulations can meet the two-pronged test for determining the reasonableness of the exercise of a police power, they should be upheld. As pointed out above, regulations governing access to public streets through regulations that include driveway access have regularly been upheld. [73 A.L.R.2d 652; 73 A.L.R.2d 689; 5 A.L.R.5th 821.] In addition, zoning ordinances regulating fences and walls on private property have been upheld, and variances to such regulations denied on the grounds of traffic safety. [1 A.L.R.4th 373.]
Unsafe conditions located in street rights-of-way, and outside street rights-of-way but immediately adjacent to it are legitimate traffic safety concerns. In addition, from a risk management perspective, municipalities have repeatedly been held liable, or declared to be liable for, for such conditions. [3 A.L.R.2d 6; 98 A.L.R.3d 101; 45 A.L.R.3d 875; 3 A.L.R.4th 770; 60 A.L.R.4th 1249; 95 A.L.R.3d 778; 100 A.L.R.3d 510; 54 A.L.R.2d 1195; 52A.L.R.2d 689; 57 A.L.R.4th 1217; 19 A.L.R.4th 532.]
Tennessee municipalities are liable under the Tennessee Tort Liability Act for unsafe and defective streets and highways, undoubtedly including unsafe and defective shoulders and any other part of the right-of-way. [Tennessee Code Annotated, section 29-20-203. Also see Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct. App. 1987); Baker v. Seal, 694 S.W.2d 948 (Tenn. Ct. App. 1984); Bryant v. Jefferson City, 701 S.W.2d 626 (Tenn. Ct. App. 1985); Fretwell v. Chaffin, 652 S.W.2d 948 (Tenn. Ct. App. 1984); Johnson v. Empe, Inc., 837 S.W.2d 62 (Tenn. Ct. App. 1992). The Tennessee Tort Liability Act does not define a “street” or “highway.” However, a “street” and a “highway” within the meaning of Tennessee Code Annotated, title 55, chapter 8, which contains the state law for the rules of the road, are the same: “the entire width between the boundaries lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel.” [Tennessee Code Annotated, section 55-8-101(21) and (60).] Assuming that the definition of streets and highways is the same for the purposes of the Tennessee Tort Liability Act as it is for Tennessee Code Annotated, title 55, chapter 8, these definitions appear to include the entire street right-of-way.
The extent to which a municipality is liable for an obstruction on the shoulder of the street apparently depends upon the character of the obstruction. Mailboxes have been held in several cases to be treated differently than other obstructions. In Black v. City of Barea, 32 N.E.2d 1 (1941), the Court declared that:
We are not dealing in this case with a private use of a road. The erection and maintenance of mailboxes upon a post road is a public use, being for both the delivery and receipt of mail. Therefore, we must discard all pole and other private-use cases and ascertain to what extent, if any, a municipality may control the erection and maintenance of mailboxes on a post road. [at 3.] [Emphasis is mine.]
The answer to that question was, not much. Acknowledging U.S. Postal Service Rules that required mail boxes to be placed in conformance with the law of the state or the regulation of the officials having supervision over highways, the Court held that such laws or rules had to bow to the paramount postal regulation that mailboxes had to be “accessible to a mail carrier without leaving his vehicle.” A postal patron, concluded the Court, could put his mailbox where such accessability was achieved irrespective of any governmental regulations otherwise. Suslowicz v. Mielcarek, 571 N.E.2d 1034 (Ind. App. 3 Dist. 1991) and Miller v. Nichols, 526 A.2d 794 (Pa. Super. 1987) followed Black. Miller even held that a postal patron could even put his mailbox within the public right-of-way in which he did not own the underlying fee. In that case the U.S. Postal Service had requested it be placed there to make it accessible for mail delivery.
An important point of both Black and Suslowicz was that the mailboxes in question did not project over the paved portions of the road.
None of the mailboxes at issue in those cases appeared to be the heavy masonry-type ones that have become common in many places. Whether that would have made a difference is not clear. However, the mailbox in Suslowicz, while not brick, sounded more than ordinarily stout, being “custom constructed of welded metal, placed in a pipe and encased in cement below ground.” That fact did not appear to weigh in the Court’s decision. But a number of municipalities, undoubtedly in response to the liability potential inherent in mailboxes located in or near the street right-of-way have adopted both mailbox location and design regulations.
Utility poles may be in a category similar to mailboxes. In Clayborn v. Tennessee Electric Power Co., 101 S.W.2d (Tenn. 1936), it was held that a power company was not liable for personal injuries caused when a person struck a power pole 26 inches off the paved edge of the highway. It is not clear whether the pole was on the shoulder of the street or even still in the right of way. The Court reasoned that:
The general rule established by the modern authorities is that a public utility company lawfully maintaining a pole in or near a public highway is not liable for the damage to a person or property from a vehicle striking a pole, unless it is erected on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway, and the location of the pole is the proximate cause of the accident. [Emphasis is mine.]
Apparently the Court did not consider that 26 inches off the paved edge of the highway was not considered to bed within the traveled portion of the highway. For that reason, perhaps the road had no shoulder or a very narrow one.
As far as I can determine there has been no case under the Tennessee Tort Liability Act based on damage to a motorist arising from a condition on private property entirely outside the boundary of the street right-of-way. But governments have been held liable for damages arising from such conditions in a significant number of cases in the United States. The same is true with respect to pedestrians in Tennessee in cases that pre-date the Tennessee Tort Liability Act, but that probably still apply to the application of that Act to streets as well as sidewalks. In City of Knoxville v. Baker, 150 S.W.2d 224 (Tenn. 1941), the question was whether the city was liable for injury to a pedestrian who voluntarily stepped off a sidewalk and tripped over a steel water cut-off rod projecting 18 inches above ground, but located 18-21 inches off the sidewalk and entirely upon private property and owned entirely by the property owner. The Tennessee Supreme Court held the city not liable for the injury on the ground that when he was injured, the pedestrian was a voluntary trespasser on private property. But in doing so the Court rejected the city’s argument that it was not liable because “its duty of keeping the street and sidewalk clear of obstructions extended only to the limits of the streets ‘as made and used’; that it was under no duty to go upon private premises and remove the water cutoff or erect a barrier along the side of the walk to prevent persons from straying off the sidewalk and into a place of danger.” The rule in Tennessee, declared the Court is:
We think the true rule may be stated to be, that if an obstruction or excavation be permitted which renders the alley, street, or highway unsafe or dangerous to persons or vehicles--whether it lie immediately in or on the alley, street, or highway, or so near it as to produce the danger to the passer at any time when he shall properly desire to use such highway,--it is such a nuisance as renders the corporation liable.... [Emphasis is mine.].
A party bound to keep a highway in repair and open for the passage of the public in a city by night or by day, certainly cannot be held to perform that duty by simply keeping the area of the highway free, while along its edge there is a well or excavation uninclosed, into which the passer, by an inadvertent step or an accidental stumble, might fall at any time. [Citing Niblett v. Nashville, 59 Tenn. 684, 12 Heisk. 684, 686-689, 27 Am. Rep. 755. [At 226-227.] [Italics the court’s.]
The Court pointed to 25 Am.Jur., p.184, section 531, for support:
As a general rule, the duty of a municipal or quasi-municipal corporation or of a private individual to guard excavations or other dangerous places or hazards and the resulting liability for failure to do so exists only when such places are substantially adjoining the way, or in such close proximity thereto as to be dangerous, under ordinary circumstances, to travelers thereon who, using ordinary care, or, as it is sometimes stated, where they are so located that a person walking on the highway might, by making a false step or movement, or be affected with a sudden giddiness, or by other accident, come into contact therewith. No definite rule can be laid down as to how far a dangerous place must be from the highway in order to cease to be in close proximity to it, but the question is a practical one, to be determined with regard to the circumstances of the particular case. In the determination of the question whether a defect or hazard is in such close proximity to the highway as to render traveling upon it unsafe, that proximity must be considered with reference to the highway ‘as traveled and used for the public travel,’ rather than as located, and the proper test for determining the necessity for a barrier or liability for injury, is whether the way would be dangerous to a traveler so using it rather than the distance from it of the dangerous object or place. The mere fact that the space adjoining the highway is unsafe for travel is not enough to impose such liability, and none exists, either on the part of the municipality or of the owner of the premises, if, in order to reach the danger, one must become an intruder or voluntary trespasser on the premises of another. The fact that the injury occurs on the adjoining premises does not necessarily preclude a recovery, however where the traveler is not a voluntary trespasser. Furthermore, if the traveler is forced to leave the highway in order to pass around an obstruction placed by the landowner, the latter is liable for injury resulting from a dangerous condition on his premises even though the condition was not in such close proximity to the highway as to render him liable under ordinary circumstances. [At 226.]
[Also see Niblett v. Mayor of Nashville, 59 Tenn. 684 (Tenn. 1874); McHargue v. Newcomer & Co., 100 S.W. 700 (Tenn. 1906); Chattanooga v. Evatt, 14 Tenn. App. 474 (1932).]
As City of Knoxville v. Baker suggests, where a motorist suffers damage from an obstruction or an excavation entirely outside the street right-of-way, the question of the obstruction’s or excavation’s distance outside the street right-of-way is a practical one; there is no hard, fast rule. In that case the plaintiff was injured on private property when he voluntarily left a sidewalk of ample width and in good condition. However, reason dictates that generally, the nearer the excavation to the edge of the right of way in general, and to the traveled portion of the street in particular, the more likely it is that municipal liability will be found.
The cases from other jurisdictions on unsafe and defective streets indicate that liability will most likely be found where the obstruction is on the traveled portion of the roadway, including the shoulder, less likely be found where the obstruction is off the shoulder, and even less likely to be found when the obstruction is entirely outside the boundary of the right-of-way. [See 19 A.L.R.4th 532.] The question of liability in any of those categories is complicated by a multitude of factors to the extent that it is difficult to fashion any exact rules governing liability. Many of the cases in which a municipality has been found liable for damages arising from motorists striking obstructions outside the boundaries of the street right-of-way involve dead end streets or sharp curves of which motorists were not warned, and other unusual conditions related to the nature and condition of the traveled portion of the roadway. [See Chattanooga v. Evatt, 14 Tenn. App. 474 (1932).] Generally, to recover damages for striking an obstruction entirely outside the street right-of-way, the motorist must show that a defect or unsafe condition in the traveled portion of the street itself caused him to strike the obstruction.