|Legal Opinion: |
Text of Document: May 15, 2001
I received your faxed letter yesterday containing the question about whether the City had an obligation to stabilize a certain part of the Tennessee River bank. I assume that at least part of the question is based on the premise that the former street in question runs to the bank of the Tennessee River.
I’m not quite sure of all the facts. The letter indicates that the street in question was formerly part of a State Route which ran to the ferry, and that following the construction of the bridge that replaced the ferry, the state abandoned that part of the State Route. You indicate that it is your understanding that once the state abandons a state highway, it becomes a city street. The City also closed the same street several years ago.
I am not clear about what has happened to the street from that point. Your letter at least implies that a request was made to re-open the street, but that apparently has not been formally done. However, a street can be informally dedicated and accepted by a city through their conduct. In any event, apparently houses have been built along the street. In addition, for a long time there has been “substantial erosion” along the river, which is eroding portions of the abandoned roadway. Your letter says that, “The people who have built along the roadway recently are now wanting someone to stabilize the riverbank and maintain the roadway. “
Unless the city has some ownership of the riverbank, or of the street, I know of no legal theory under which the city could be held liable for the erosion of the riverbank, including along the abandoned roadway.
With respect to the roadway, state highways are simply city streets over which state traffic is routed. [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).] For that reason, the character of the State Route did not change when the state abandoned the portion of the route in question, it always being a city street.
Let us assume here that after the state abandoned the road in question, the city also properly abandoned the street. Generally, that must be done by ordinance, and absent unusual circumstances the right of a city to close a street is very broad. [See Sweetwater Valley Memorial Park v. City of Sweetwater, 372 S.W.2d 168 (1963); Cash & Carry Lumber Company, Inc. v. Oligiati, 385 S.W.3d 115 (1964); Wilkey v. Cincinnati, New Orleans & Texas Pacific Railway Company, 340 S.W.2d 256 (1960).]
Unless a city owns the fee simple in the land upon which a city street sits (which is highly unlikely in most cases), it has no further legal interest in the street following its abandonment. In State v. Taylor, 64 S.W. 766 (1901), the City of Union City by ordinance and deed conveyed one of its streets to a business. In declaring the conveyance ultra vires and void, the Court declared that:
It is obvious under that law, that the ordinance and deed in question were ineffective to pass any portion of Washington Avenue to the intended vendees; first, because the corporation did not own the fee in the street, and secondly, because the easement which it did own was not subject to sale and conveyance. The corporation has only the right to use this street for street purposes. That was the extent of the dedication and the board had no authority to exceed its limits. The platting of territory and the sale of lots by the original owner in the manner hereto recited vested the city as such, but not otherwise in the municipality, and at the same time pass to the respective lot purchasers the ultimate fee to the soil to the centerline of the street on which they severally abutted. [Citations omitted.]....So, the corporation had only an easement in Washington Avenue, and that, from its nature was incapable of alienation and passage to an individual. Hence, to repeat what has already been remarked, the ordinance and deed relied on by the defendant were inoperative as to the fee because the corporation did not own it and as to the easement because it was not transferable. [At 170 Tenn. 462-464]
Even though the conveyance was ultra vires and void, its effect “was, nevertheless, in legal contemplation, and, in fact, an abandonment of its easement in so much of Washington Avenue, and through that abandonment the strip of ground in question ceased to be a part of the public street, and by operation of law reverted to the owner of the ultimate fee” [At 107 Tenn. 464-466]
It has been repeatedly said that municipalities usually do not own the fee in land dedicated for streets; generally, they have only an easement in their streets, and abutting property owners are presumed to own the fee to the centerline of the street (which presumption can be overcome by evidence of other ownership). [Hamilton County v. Rape, 47 S.W. 416 (1898); Patton v. City of Chattanooga, 65 S.W. 414 (1901); Georgia v. Chattanooga, 4 Tenn. App. 674 (1913); Rogers v. City of Knoxville, 289 S.W.2d 868 (1955)
In all likelihood then, if the City abandoned the street which was formerly the part of the State Route in question, the property automatically reverted to its former owners, presumptively to the abutting property owners to the centerline of the street. At that point, the city owned no further interest in the property.
However, as pointed out above, if the owners of the former street, and the city, by their mutual conduct, subsequently treated the property in question as a street, it may have again become a street. [See Rogers v. Sain, 679 S.W.2d 450 (Tenn. App. 1984); Reeves v. Perkins, 590 S.W.2d 233 (Tenn. App. 1973); Smith v. Black, 547 S.W.2d 947 (Tenn. App. 1977); Hackett v. Smith County, 807 S.W.2d 695 (Tenn. App.1990); State ex rel. Matthews v. Metro Government of Nashville, 679 S.W.2d 946 (Tenn. 1984).] Such a determination is highly fact-dependent, but generally, use of the street by the public, including city vehicles, public construction and maintenance of the street, listing on the street map, utility installations along the street, etc., are indicative of an implied acceptance of a street by a municipality.
The facts do not indicate who owns the property outside of the roadway along the bank of the Tennessee River subject to erosion.
Let me know if I can help you further in this matter.
Sidney D. Hemsley
Senior Law Consultant