Knowledgebase-Jackson Sidewalk Letter
July 15, 2004
Mr. Gary Leforgee
City of Jackson Street Department
101 East Main
Jackson, Tennessee 38302
Pursuant to our discussion about the sidewalks, I wanted to share material previously prepared by MTAS that applies to those sidewalk topics:
April 4, 2002
Re: Requirement that Property Owners Build Sidewalks
Dear City Recorder:
Your consultant has conveyed to me your question whether the Town can effectuate the authority it has under its charter to require property owners to construct sidewalks along the street abutting their property. Based upon a line of old but still good cases, my opinion is that the Town may by ordinance require property owners to construct such sidewalks. If the property owner fails to do so, the Town may do so and charge the cost to the owner. If the owner fails to pay, the Town may file a lien on the property.
The Town=s authority to require property owners to construct sidewalks is found in ‘4(26) of Chapter No. 633, Private Acts of 1925, as amended, which is the Town =s charter. In O=Haver v. Montgomery , 120 Tenn. 448 (1908), the state Supreme Court was called upon to interpret provisions from the charter of Memphis that were very similar to these. The Court upheld the charter authority as furthering the health and convenience of the public:
While ... all such powers should be strictly construed in favor of the personal liberty of the individual citizen and his rights of property, the courts should ever be mindful of the needs of large masses of people grouped together in cities, and the necessity of efficient government, to the end that not only the health and good order of the citizens shall be maintained, but that reasonable conveniences may be from time to time added for the attainment of public comfort and general well-being, therefore that the denizens of cities must for the common good occasionally submit to exactions that would not be considered reasonable in communities where the population is sparse.... 120 Tenn. at 463.
Similarly, an earlier Supreme Court upheld a Franklin ordinance passed to implement like charter authority. Mayor and Aldermen v. Maberry , 25 Tenn. 368 (1845). That Court held that the ordinance was in the nature of requiring nuisance removal:
It requires a duty to be performed for the well-being and comfort of the citizens of the town. It is in the nature of a nuisance to be removed. 25 Tenn. at 372.
The cases of Washington v. City of Nashville, 31 Tenn.176 (Tenn. 1851), and City of South Fulton v. Edwards , 251 S.W. 892 (Tenn. 1923), also support the validity of requirements that property owners build sidewalks.
I hope this information is helpful. If you have further questions, please contact me.
April 25, 1990
Your question is whether a municipality has the authority to require property owners to construct and maintain sidewalks adjacent to their property.
The law generally is that a municipality has such authority if it has been delegated to it by the state legislature. The Tennessee courts in a number of cases have upheld the delegation and application of such authority, the most recent of which is City of South Fulton v. Edwards , 148 Tenn. 130 (1923). In that case, the Tennessee Supreme Court considered the challenge on several grounds to a municipal ordinance that required all landowners adjacent to certain streets to construct sidewalks according to standards specified in the ordinance. The ordinance also provided that if a landowner failed or refused to begin construction of the sidewalk within 30 days, the city would construct it and charge the cost of the same to the landowner, “and the same to become a lien upon the lot belonging to said party adjoining said street.”
The ordinance was based upon a provision of the South Fulton City Charter that authorized the city to:
pass all necessary ordinances requiring the owners of the lot to make brick, stone, plank, or other sidewalks in front of their property along any street, and if the owner refuse, to provide a remedy and create a lien on said property for same.
Citing a line of prior Tennessee cases and appropriate provisions of DILLON ON MUNICIPAL CORPORATION AND MCQUILLEN ON MUNICIPAL CORPORATIONS, the court upheld that delegation of power and declared it to be sufficient authority for the city to order the construction and imposition of the lien in question. (Also see Franklin v. Mayberry, 25 Tenn. 368 (1845); Washington v. Mayor of Nashville, 31 Tenn. 177 (1851); Wythe v. Nashville, 32 Tenn. 364 (1852); Mayor of Nashville v. Berry , 2 Shannons’s Cases 561 (1877); Smith v. St. Louis Mut. Life Ins. Co., 3 Cooper’s Tenn. Ch. 631 (1878); Arnold v. Mayor of Knoxville, 115 Tenn. 195, 90 S.W. 469 ((1905); O’Haver v. Montgomery, 120 Tenn. 448, 111 S.W. 449 (1908).)
The City operates under the General Law City Manager-Commission Charter. I have researched that charter and find no authority for a municipality to require abutting property owners to construct and maintain sidewalks comparable to the authority upheld in City of South Fulton or the other cases imposing similar requirements upon abutting property owners. There are, however, several abutting property provisions in the General Law City Manager-Commission Charter that permit the city to construct and maintain certain improvements, and impose the cost of those improvements upon abutting property owners. All of those are found in various subsections of Tennessee Code Annotated , Section 6-19-101 as follows, and provide that municipalities operating under that charter may:
Subsection (1): Make special assessments for local improvements.
Subsection (16) Construct, improve, reconstruct and reimprove by opening, extending, widening, grading, curbing, guttering, paving, graveling, macadamizing, draining, or otherwise improving any street, highways, avenues, alleys or other public places within the corporate limits, and to assess a portion of the cost of such improvements upon the property abutting upon or adjacent to such streets, highways or alleys under and as provided by title 7, chapters 32 and 33 [of Tennessee Code Annotated].
Subsection (17) Assess against abutting property within the corporate limits the cost of planting trees, removing from sidewalks all accumulations of snow, ice, and earth, cutting and removing obnoxious weeds and rubbish; street lighting, street sweeping, street sprinkling, street flushing, and street oiling; ... in such manner as may be provided by general law or by ordinance of the board of commissioners.
It does not appear to me that any of the above provisions are broad enough to permit the city to require the abutting property owner to construct and maintain abutting property. Based upon City of South Fulton and the other cases cited above, and the General Law City Manager-Commission Charter, an amendment to that charter expressly giving cities such authority is the only way the city can legally require that conduct on the abutting property owners.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
|1. Are cities liable for damages and injuries caused from the disrepair of their sidewalks?
The answer is yes.
2. Does the City own its sidewalks?
The answer is undoubtedly yes.
Analysis of Question 1
Under the Tennessee Tort Liability Act, the immunity of cities from suits in various areas has been removed, including the area of streets and sidewalks. That Act expressly provides that:
Immunity from suit of all governmental entities is removed for any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity. “Street” or “highway” includes traffic control devices thereon. [ Tennessee Code Annotated, section 29-20-203.] [Emphasis is mine.]
Needless to say, more injuries arise from defective, unsafe, or dangerous conditions on streets and highways than from such sidewalks. However, under the Tennessee Tort Liability Act, cities are clearly liable for injuries arising on such sidewalks.
Analysis of Question 2
Generally cities do not “own” their streets or sidewalks in the sense of owning what is called the underlying “fee.” Usually abutting property owners own the underlying fee to the centerline of the street, and the city owns only a transportation easement or right-of-way across the property for the use of public travel. [See Hamilton County v. Rape, 47 S.W. 416 (Tenn. 1898; Patton v. Chattanooga , 65 S.W. 414 (Tenn. 1901).] But the city owns and controls the easement within the meaning of the Tennessee Tort Liability Act.
The question of whether a city owns the sidewalks is determined the same way the question of whether the city owns the streets and other public ways is determined. Cities become owners of streets and other public ways in the following manner:
1. County streets and sidewalks automatically become city streets and sidewalks upon the incorporation of the city or by annexation of the territory into the city.
2. Formal dedication and acceptance of the right-of-way;
3. Implied dedication and acceptance of the right-of-way, which generally involves the public use of the property as a street or sidewalk, for no fixed period of time;
4. Prescription, which is the open an notorious use of the land for an uninterrupted period of 20 years;
5. Eminent domain.
If the sidewalks abut the streets, or are in near proximity to them (either one of which is likely), there is also a strong likelihood that they are simply a part of the street right-of-way. It was said in Blackburn v. Dillon , 225 S.W.2d 46 (Tenn. 19467), that, “The term street in ordinary legal signification includes all parts of the way, roadway, gutters and sidewalks .” [Emphasis is mine.] In that case the width of the street easement was clearly 40 feet, and the question was whether the city had the authority to build a sidewalk within that easement. The Court held that within a street easement a city had the authority to determine the form of public travel.
I do not know in what manner your sidewalks became public sidewalks, but they are undoubtedly open to, and used by, the public. Those facts alone would make them the city’s sidewalks by implied dedication and acceptance, and perhaps by prescription. I am also making an educated guess that if the records of the city were thoroughly researched some record of the formal dedication and acceptance of the streets could be found, and that the sidewalks are within that street right-of-way.
Mike Tallent raised an important point I did not think about in relation to the reconstruction of your sidewalks: They probably must be made handicapped accessible under the American’s With disabilities Act. Generally that involves the installation of curb ramps at street crossings, etc. For that reason, you will probably want to insure that the contractor who gets the construction contract is familiar with the ADA handicapped accessibility rules and regulations. I have enclosed a copy of A Look at the MTAS/CTAS Americans With Disabilities Act , and refer you particularly to page 35, New construction and alterations .
A Telephone Survey Conducted by the MTAS Library
(7 Cities Surveyed)
||Are developers required to install sidewalks in new residential developments?
||Who pays for sidewalk construction in established neighborhoods?
||Who pays for sidewalk repairs?
James C. Trusty
John R. Johnson
Sue S. Wood
I hope this information is helpful. If you need further assistance, please call.
MUNICIPAL TECHNICAL ADVISORY SERVICE
John C. Chlarson, P.E.
Public Works/Engineering Consultant