Original Author: Bingham, Pamela
Date of Material: 01/21/1999
Reviewed Date: 10/07/2020
MTAS was asked whether it would be advisable for the Town to take over the maintenance, or accept the dedication as city streets, certain private driveways.
First, there does not seem any legal justification for denominating these drives as "public streets.” By way of background information, other than certain statutes governing street plats, Tennessee has no statute addressing dedication of streets. Therefore the common law rules govern this issue. A common-law dedication "partakes of some of the attributes of a deed (requiring intent to convey and delivery) or a contract (requiring an offer and an acceptance)." Smith v. Black, 547 S.W.2d 947 (Tenn. Ct. App. 1976); 9 Tenn. Jur. Dedication §2, p.150.
Public acceptance can either be implied from the circumstances, including continuous, longstanding public use, or it may be express (adopted street plats or maps or by ordinance). McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331 (1957). If the city acts in a manner that is consistent with public use and ownership, "acceptance" of the dedication will be implied. For example, if the city has maintained the street or drivewayor has allowed the general public the use of same, or has laid sewer and water pipes under the driveway, the courts imply acceptance. City of Knoxville, v. Hunt, 299 S.W. 789, 156 Tenn.7 (Tenn. 1927).
Similarly, if the municipality has included the particular street or driveway on an official street and alley maintenance map, and public utilities are given access to erect and maintain utility poles, acceptance may be implied. West Meade Homeowners Ass'n. v. WPMC, Inc., 788 S.W.2d 365 (Tenn. Ct. App. 1989). State ex rel Matthews v. Metropolitan Government of Nashville and Davidson County, 788 S.W.2d 365 (Tenn. Ct. App. 1989).
However, while generally a municipality has the right to accept the dedication for the public trust, it may reject the dedication. Because of the heavy burdens that sometimes may be attached to property dedicated, a municipality is not bound to accept dedicated land. See McQuillen, Municipal Corporations, Vol.11, §33.43 . Nor does it have the duty to maintain or repair a private driveway. In Town of Tullahoma v. Gill, 1 Tenn.Cas.326, 1 Shannon 326 (Tenn. 1874) the Tennessee Supreme Court held that a municipality may not be "charged" with the duty to repair, so as to make it liable for injuries suffered, without an acceptance of the dedication express or implied.
Finally, and most importantly, there can be no dedication of streets that are by their nature essentially private or not accessible to the general public. While not all of the public need enjoy the particular interest dedicated, the property must be available to be used by the general public and not just a few individuals. In Bunns v. Walkem Development Co., 53 Tenn.App. 680, 385 S.W.2d 917 (Tenn.Ct. App. 1965), the Court, quoting from 16 Am.Jur.-Dedication-§15, p.359, stated the rule as follows:
"...There may be a dedication of lands for special uses, but it must be for the benefit of the public, and not for any particular part of it; and if from the nature of the user it must be confined to a few individuals, such as the use of land for piling wood, the idea of dedication is negatived....To the same effect see 26 C.J.S. Dedication §9,p.413 and 2 Thompson on Real Property, §483."
While it is understandable that the two property owners on the private road in question would like the municipality to accept dedication of the street and be responsible for its maintenance, it is my opinion that the city may lack authority to do so for the reason that the general public would not be served by accepting its dedication. Of course, if the city determines that it is in its best interest to open the road up as a through-street, or if a subdivision is eventually built on some of the abutting property, my conclusion would be different.
However, as it stands now, the private drives are usable by the few property owners residing there. While I can find no Tennessee case directly on point, it appears that the weight of authority leads to the conclusion that these drives may not be dedicated to the city and the city could not accept them as public streets because their use is not sufficiently public.
Taking this analysis one step further, should the city decide not to accept dedication, and considering the essentially private nature of these streets, I do not believe these property owners would be able to compel the Town to accept ownership and maintenance responsibility. However, I would urge the Town to discontinue or not begin any practice of maintaining these drives by grading, paving, or removing snow without compensation from the property owners.
There is at least one other reason that the town should seriously consider rejecting dedication of ownership of the private drives. Unsafe conditions located on streets, in street rights-of-way, and outside street rights-of-way but immediately adjacent to it are legitimate traffic safety concerns. In addition, from a risk management perspective, municipalities have repeatedly been held liable, or declared to be liable for, for such conditions. [3 A.L.R.2d 6; 98 A.L.R.3d 101; 45 A.L.R.3d 875; 3 A.L.R.4th 770; 60 A.L.R.4th 1249; 95 A.L.R.3d 778; 100 A.L.R.3d 510; 54 A.L.R.2d 1195; 52A.L.R.2d 689; 57 A.L.R.4th 1217; 19 A.L.R.4th 532.] .
Tennessee municipalities are liable under the Tennessee Tort Liability Act for unsafe and defective streets and highways, undoubtedly including unsafe and defective shoulders and any other part of the right-of-way. Tennessee Code Annotated, §29-20-203. Also see Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct. App. 1987); Baker v. Seal, 694 S.W.2d 948 (Tenn. Ct. App. 1984); Bryant v. Jefferson City, 701 S.W.2d 626 (Tenn. Ct. App. 1985); Fretwell v. Chaffin, 652 S.W.2d 948 (Tenn. Ct. App. 1984); Johnson v. Empe, Inc., 837 S.W.2d 62 (Tenn. Ct. App. 1992). The Tennessee Tort Liability Act does not define a “street” or “highway.” However, a “street” and a “highway” within the meaning of Tennessee Code Annotated, Title 55, Chapter 8, which contains the state law for the rules of the road, are the same: “the entire width between the boundaries lines of every way when any part thereto is open to the use of the public for purposes of vehicular travel.” [Tennessee Code Annotated, §§ 55-8-101(21) and (60). Assuming that the definition of streets and highways is the same for the purposes of the Tennessee Tort Liability Act as it is for Tennessee Code Annotated, title 55, chapter 8, these definitions appear to include the entire street right-of-way. In summary, the municipality could become liable for injuries or damages on the rights of way of these private drives - property that would normally be the sole responsibility of the homeowner.
Finally, if the driveways are typical of many, they may be relatively narrow and hazardous. The prospect that the city will end up spending considerable money to improve/maintain the street is high. In my view such lanes should generally remain private drives.