|Legal Opinion: |
Text of Document: November 2, 1993
Your question is: Upon the abandonment by the city of certain service drives does the city have the obligation to restore the property, including removal of the pavement? Because I earlier discussed with the former city manager the question of whether such service drives could be abandoned, and you are aware of those discussions and my opinion in that area, I assume it is unnecessary for me to outline the nature of the service drives.
In my opinion the answer is no.
39 AmJur2d, Highways, Streets and Bridges, section 141 declares:
There is authority to the effect that one who has placed structures in a street or other highway, under authority lawfully granted for such purpose, is under no duty to remove them after the way has been vacated or abandoned.
The logical corollary is that the public entity which owns the street right-of-way is under no duty to remove the street. 39 AmJur2d, Highways, Streets and Bridges, section 142 hints at that when it says:
A highway which is lawfully vacated or abandoned ceases to be a highway and, insofar as the public has a mere easement of way, the title reverts to the owner of the fee discharged from the servitude. The public authority is not obligated any longer to keep it in repair, or liable for injuries resulting from its failure to do so. [Emphasis is mine.]
The same general proposition is also stated in 71 ALR 1206.
That general proposition also appears to be the law in Tennessee, for in Thompson Anderson v. W.J. Turbeville, 46 Tenn. (6 Cold.) 150, the Tennessee Supreme Court, in dictum, said:
With respect to the closing of a public street, the municipal corporation representing the State, has the power to abandon the public use of it, and be exonerated from obligation to keep it in repair, and otherwise suitable for public use.
If that is so, it would seem that there is no obligation on the part of the public body to restore the property upon which lies the road to its original condition.
That conclusion is strongly supported in Fuller et al. v. City of Chattanooga, 118 S.W.2d 886 (1938). There the city condemned the Fullers' property for the widening of a street. The city also changed the grade of the street in the course of its widening, damaging the Fullers' remaining property. The Fullers sued to recover the amount of damages. They were not entitled to recover the damages held the Tennessee Supreme Court, because:
We think the facts of this case bring it within the well established rule in such cases that the condemnation of a right of way or a deed conveying a right of way cover by implication whatever is necessary to make the enjoyment of the land conveyed effectual for the particular purpose for which it is acquired by the condemnor or conveyance as the case may be. The principles underlying this rule have been applied in several cases in this State. [Citations omitted]....
An agreement between a landowner and a railroad company to sell the latter a right of way across the tract of the former covers all damages, of whatever sort, to that tract, to which the landowner would have been entitled in regular condemnation proceedings. He is presumed to have contemplated and arranged for all such damages in fixing the consideration for the contract, and he is therefore remitted to it....
Another well-recognized principle of law is applicable. That is, that in condemnation suits, all injuries necessarily incident to the proposed public improvement must be presumed to have been included and compensated for in the award of damages to the landowner. [Emphasis is mine.]
In this case, said the Court, the Fullers deeded to the city an easement for the construction of a street 80 feet wide, with knowledge that the elevation of the street needed to be changed as a part of the widening; therefore, they must have necessarily contemplated that the change in elevation would require a base of more than 80 feet in width, and a corresponding greater right of way to build them.
Both the parties and their privities "are concluded as to all matters which were put in issue or might have been put in issue in a condemnation proceedings," concluded the Court.
The principles announced in Fuller were repeated in Jones v. Oman, 184 S.W.2d 568 (1944), which also reaffirmed that they applied whether the right-of-way was acquired by condemnation or contract.
I do not recall how the service drives in question were acquired by the city. In any event, they were acquired from the owners of the underlying fee. At the time they were acquired, the agreement of the owners to sell or transfer them to the city undoubtedly covered all damages of whatever sort to the property. Apparently that includes the damage to the property arising from the service drives including the prospect that they might be abandoned in the future. That agreement is binding upon present owners of the property in question.
Sidney D. Hemsley
Senior Law Consultant