October 29, 1993
You questions in your letter of October 18 are:
1. Can the county school board as grantee in a deed from the city of "their part of each half of an abandoned street" legally agree to allow that portion to be open to vehicular traffic at certain times?
2. As a condition of abandoning the street can the city require the school board and the private owners to agree the street would revert to the city if the property ceases to be used for school purposes, possibly by a convent running with the land?
As I understand the facts, the street is question is a block, which divides a county grammar school on the east (burned down, but proposed for reconstruction) and a school playground on the west. Two parcels on land on the north end of the block are owned by private property owners. As I understand the questions, the conditions in each question are to be conditions of the deed abandoning the street.
In my opinion, the answer is no.
The reason supporting my opinion is that the underlying assumption upon which the questions are based is faulty: that the city can by deed "grant" the school what you call its part or parts of the property upon which lies the street.
The city cannot make such a grant unless the city actually owns the property upon which the street lies, which is highly unlikely. Unless the city owns the underlying fee, at most the street is only a transportation easement granted to the city. If the city abandons the street, it abandons the easement. Upon its abandonment by the city, the street automatically reverts to its owners, usually the abutting property owners, to the centerline of the street. In other words if the city abandons the street in question, the north end of the street probably reverts to the private property owners abutting that area, and the portion of the street abutting the school and the playground probably revert to the county school board. Your questions contemplate the city granting to the school property or rights in property the city probably does not own and probably cannot make conditional. But if the city does by deed convey a fee to a street where it owns only the transportation easement, that conveyance operates as an abandonment of the street, upon which its rights are extinguished. The deed itself cannot convey what the city does not own. [See State v. Taylor, 107 Tenn. 455 (1901), Wilkins v. Chicago, St. L. & N.O.R.R., 110 Tenn. 422, 75 S.W. 1026 (1903), Jackson v. Hutton, 15 Tenn. App. 281 (1932), Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898)]
The city probably cannot attach conditions to the abandonment of the street, at least of the kind your questions contemplate. Abandonment of the street assumes that the public's need for the transportation easement is completed. Requiring the private owners and the school as a condition of abandonment to open the street during certain hours or to agree the street would revert to the city if the property ceases to be used for street purposes is an attempt to provide for the resurrection of the public need for the transportation easement even before its death. I do not think such conditions, whether a covenant running with the land or otherwise, could be enforced because it makes the ownership and use of the land by the abutting property owners conditional upon the abandonment of the transportation easement when the law seems to indicate that it is unconditional and automatic.
In Knoxville Ice & Cold Storage Co. et al. v. City of Knoxville, 153 Tenn. 536 (1925) the Tennessee Supreme Court held that the city could contract with a railroad to close the end of a public street to facilitate the railroad's construction of a viaduct because the contract was supported by valuable consideration and was for a public purpose. However, the consideration in that case involved the construction of the viaduct at the railroad's expense, the public purpose was immediate and readily identifiable, and the abandonment appears to have been final and unconditional. The abandonment in you case is highly conditional, and with respect to the second question, there is no immediate and identifiable public need.
Sidney D. Hemsley
Senior Law Consultant