|Legal Opinion: |
Text of Document: January 27, 1994
Your question is whether a certain "alley" is a city street under the following facts: The alley connects main street to another street. It has been an open alley, paved and maintained by the city, for more than 20 years--since around 1969. However, it was in continuous use by the public many years before 1969, and may have been surfaced with chip shot topping by the city before it was paved in 1969. The owner of the abutting property in 1969 was Mr. "Smith," who died 8-ten years ago. The present owner is Mr. Smith's son. [There may have been an intervening owner or owners.] The younger Mr. Smith says he heard his father tell members of a local merchant's association or group that the city could pave the alley but that he might want the alley back someday. However, apparently there is no evidence that the elder Mr. Smith and city officials had any contact with each other about the paving of the alley. The former mayor who was in office in 1969 indicates he did not contact the elder Mr. Smith relative to the paving. Apparently the alley was simply paved in conjunction with a street paving program at the time. A few weeks ago the younger Mr. Smith built a building along the alley, during the course of which the pavement was damaged. The city was going to repair the damage, but the younger Mr. Smith blocked the alley on one end and parked a car in it so that vehicles could not pass through the alley. He claims the alley is his property, apparently on the basis of what he heard the elder Mr. Smith relate to the merchant's association or group, and wants to assert his exclusive use of it. Neither the elder nor the young Mr. Smith nor any possible intervening owner did anything from the time the alley was paved around 1970 [or in the years before the alley was paved] to interfere with the public's travel though it or with the city's maintenance and pavement of it until the younger Mr. Smith blocked the property.
Based on the facts related to me, in my opinion, the alley is a public street, probably by implied dedication and possibly by prescription. Apparently there was no formal dedication of the alley such as would show up in the city's records or on the city's maps.
How Streets Become Public Streets
An alley is a narrow street and public alleys and thoroughfares are governed by the same rules that apply to streets. [Lee v. Seitz, 13 Tenn. App. 260 (1930)]
It was said in Henry County v. Summers, 547 S.W.2d 247, 250 (Tenn. Ct. 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 use for a period of 20 years continuously creating a prescriptive right, it is not a public way.
That quote loosely but accurately reflects the way a passageway becomes a public street. Most municipal streets become such by either express or implied dedication of the owner and acceptance of the dedication by the municipality. Assuming for a moment an implied dedication of the alley in question was made, there is no doubt that over 20 years public use and paving and maintenance by the city would constitute the acceptance of the dedication.
But the threshold question is whether there had been a dedication of the alley. The city has a good argument that an implied dedication was made either by the elder Mr. Smith, by the younger Mr. Smith, or by both of them. In Rogers v. Sain, 679 S.W.2d 450 (Tenn. Ct. App. 1984) the Court said:
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]
The significance of the conduct of the landowner is assessed in Wolfe [an earlier case], where the court said:
The public, as well as individuals, have a right to rely on the conduct of the owner as indicative of his intent. If the acts are such as would fairly and reasonably lead an ordinary and prudent man to infer an intent to dedication [the court will find that the road has been so dedicated].
Wolfe, 103 Tenn. at 282, quoting from Eliott on Roads and Streets, section 92.
[5-7] Among the factors which indicate an intent to dedicate are: the landowner open 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 [Citations omitted; emphasis is mine]
It was also said in Reeves v. Perkins, 590 S.W.2d 233, 234-35 (Tn Ct. 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." [Emphasis is mine] In that case, certain landowners erected a fence at both ends of a road. The county road commissioners argued that the road was a public road. The Court found in favor of the county road commissioners because proof from witnesses who lived in the area and county highway department commissioners and employees established that road had been open to public travel since the 1920's, and:
...establishes the road has been in existence and used by anyone who wished to use it since the 1920s. The use included foot travel, horseback, wagon, automobile and pick up trucks. No owner of the property ever fenced off either of the two ends of the road nor did any previous owner object to or restrict the use of the road. A former county highway commissioner and some county highway department employees testified that the county had graded and ditched the road several times since 1939. One witness travelled the road in a pick-up truck about two or three years prior to the suit. The road was used by plaintiff Hubert Petty while a Star Route mail carrier in 1926 because it was at times the better road from Sardis to Lexington.
If the younger Mr. Smith could even testify that he heard his father say to a merchants association or group that he would permit the city to pave the alley but that he might want the alley back someday, there is apparently no evidence that the elder Mr. Smith communicated that reservation to the city or that the city even had any contact with the elder Mr. Smith over the paving of the alley. Absent proof of such a communication, the city has a strong argument that the elder Mr. Smith impliedly dedicated the alley to the public. Between the time the city paved the alley and the time he died over ten years later, he never interfered with the public's use of the alley or the city's maintenance of it. Under Reeves the dedication arose "from the failure of the owner [owner] to object to use of the public." Furthermore, under the Rogers test, his conduct during that period appears to amount to a dedication of the alley: He opened the road to public travel; acquiesced in the public's use of the road. [Indeed, apparently the acquiescence went back further than the time he gave permission to the city to pave the alley]; the public used the alley for over ten years between the time he permitted the city to pave the alley and the time he died; and the city maintained the alley for the same period.
The same argument applies to the younger Mr. Smith and any possible intervening property owners. Between the time of the elder Mr. Smith's death 8-10 years ago until a few weeks ago when the younger Mr. Smith put the barriers on one end of the alley and blocked it with his car, the public has enjoyed the uninterrupted use of the alley, and the city has paved and maintained it. Those facts indicate that the younger Mr. Smith and any intervening property owners impliedly dedicated the alley.
If the younger Mr. Smith could prove that a dedication of the alley had not been made by he or the elder Mr. Smith or any intervening property owners, he would have proved too much, for then the city could make an alternative case that the alley is a public street by prescription. An easement arises by prescription when a person uses another person's land openly and notoriously under a claim of right for an uninterrupted period of twenty years. Governments as well as private persons can acquire easements by prescription. In the case of governments, a road has to be accepted and used by the public before it can be acquired by prescription. The claim of right and acceptance by the government can be shown by public maintenance of the road. [City of Knoxville, et al. v. Sprankle, et al., 9 Tenn. App. 218 (1928), Lewisburg v. Emerson, 5 Tenn. App. 127 (1927), Burkett v. Battle, 59 S.W. 429 (Tenn. Ch. App. 1900), Wilson v. Acree, 97 Tenn. 284 (1896)]
Morgan County v. Goans, 138 Tenn. 381, 198 S.W 69 (1917) seems to have gone even further. There a road ran from the main Wartburg Road to Mrs. Goan's place through Duncan's land. There was evidence to show that the road had been in existence since 1884, and had been travelled by the public since that time as a matter of right. However, the county had never maintained the road. But the public use was enough to create a prescriptive right of the public to the road. "Twenty years' adverse possessor will establish a right of way either in the public or in private persons," declared the Court. However, the better rule seems to be that public maintenance of the road is probably an almost essential ingredient in the proof of acquisition of a road by prescription. [See Sprankle, Lewisburg, Burkett, and Acree, above].
The public has openly and notoriously and uninterruptedly used the alley in excess of 20 years since 1969 when the city paved it. Under the facts, I think Mr. Smith would have an extremely difficult time proving that the public use was merely permissive rather than under a claim of right during that period. The city's maintenance of the alley has been at least of equal length and of the same character.
In summary, it appears to me that the city has acquired the alley either by the implied dedication of the elder Mr. Smith or the younger Mr. Smith, or both of them, or by prescription. In all cases, the evidence appears overwhelming that the city accepted the alley.
Sidney D. Hemsley
Senior Law Consultant