|Legal Opinion: |
Text of Document: In accordance with our telephone conversation this morning, the following is the prevailing law:
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).]
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, at least to some degree. See T.G. Jordan et al. v. City of Cleveland, 148 Tenn. 337 (1922).]
No person, firm, corporation or municipality shall hereafter construct any entrance into such highway without first having agreed to construct the same in accordance with such rules and regulations of the commissioner [of transportation].
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 that is generally opened to public travel, is a municipal street. Callahan v. Middleton, 292 S.W.2d 501 (Tenn.Ct. 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. Another method in which a street becomes city property- This method contemplates a formal offer, and a public acceptance of, the dedication. See Smith v. Black, 547 S.W.2d 947 (Tenn.Ct. App. 1977)]. A statutory method for the formal dedication and acceptance of subdivision streets is found in T.C.A. 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, the category of formal dedication and acceptance includes instances where a municipality acquires land for a street by formal purchases.
4. 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).]
No specific time limit triggers an implied dedication. In Nicely v. Nicely, 232 S.W.2d 421 (Tenn. 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.Ct. 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, 9 Tenn. App. 218 (1928); Lewisburg v. Emerson, 5 Tenn. App. 127 (1927).]