August 15, 1991
You have asked whether the City can be forced to accept the dedication and ongoing maintenance responsibility for private streets, street lights and storm sewers located within condominium and planned unit developments. In my opinion, the city cannot be forced to accept and maintain private streets (or street lights and storm sewers) located in privately owned residential developments.
Other than references in the statutes governing street plats, Tennessee has no statute dealing with dedication, and common law rules govern. 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 it has maintained the street or alley or has allowed the general public the use of same, or has laid sewer and water pipes under the street 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 alley 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).
The municipality has the right to accept the dedication for the public trust or it may reject the dedication. Because of the onerous 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 for a complete discussion. Nor does it have the duty to maintain or repair the private way. 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, there can be no dedication of things 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 use 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.
In this case the Appellate Court determined there was no public dedication of a lot in a subdivision that was recorded on a plat as a recreational facility for use by lot owners and non-lot owners paying a membership fee.
By their nature, streets (and lights located above them and storm sewers located over them) within a PUD or condominium development are essentially private streets, usable by the few property owners residing therein. While I can find no Tennessee case directly on point, it is at least arguable that these streets may not be dedicated because their use is not sufficiently public.
Given the city's desire not to accept, and the essentially private nature of these streets, I do not believe these property owners would be able to compel the city to accept ownership and maintenance responsibility. If you have additional questions about this or any other matter please do not hesitate to contact me.