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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 07/18/2011

Governmental tort liability

Legality of a Business Owner to Put Iron Rods on the Edge of a Highway

Reviewed Date: 10/07/2020
MTAS was asked whether it is legal for the owner of a certain business to have put several iron rods into the pavement on the edge of a highway, which, presumably, the owner of the business thinks is the eastern limit of that highway, when the right of way is undoubtedly wider than the pavement.

July 18, 2011

Dear Mayor:

The City has the following question: Is it legal for the owner of a certain business located at the apex of Highway 11 and what I understand to be old and restored Highway 11 South to have put several iron rods into the pavement on the eastern edge of old restored Highway 11 South, which, presumably, the owner of the business thinks is the eastern limit of that highway. The iron rods appear to intercept southbound traffic on old restored Highway 11 South from turning left across the parking lot of the business at the apex, but they also appear to intercept northbound traffic along the same highway, and both north and southbound traffic on present Highway 11.

As I read the letter that the business’s attorney sent to the city in response to the city’s complaint that the owner of the business had no authority to place the iron rods in the pavement. The business owner’s position that he is entitled to set metal rods on the edge of the pavement is based on a misunderstanding of the width of highways and streets. That misunderstanding may be due, in part, to the statutory definitions of state highways. But the courts have made it clear that “streets” and “highways” are generally wider than their pavements.

It is the law that state highways running through municipalities are municipal streets over which state traffic is routed, and the municipality retains its police powers over such streets. [Collier v. Baker, 27 S.W.2d 1085 (1930); Brimer v. Municipality of Jefferson City, 216 S.W.2d 1 (1948); Paris v. Paris-Henry County Utility District, 340 S.W.2d 885 (1960). Also see Callahan v. Middleton, 292 S.W.2d 501 (Tenn. App. 1954); Rutherford County v. Murfreesboro, 309 S.W.2d 778 (Tenn. 1957).]

With respect to the maintenance of state highways inside municipalities, Tennessee Code Annotated, section 54-5-201(3) also says in subsection (3) that, “Street” includes streets, highways, avenues, boulevards, publically-owned right-of-way, bridges, tunnels, public parking areas and other public ways dedicated to public use and maintained for general public travel lying within a municipality’s corporate boundaries.

Tennessee Code Annotated, section 54-5-202 further says:

The streets so constructed, reconstructed, improved and maintained by the state shall be of such width and type as the department may thin proper, but the width so constructed, reconstructed, improved and maintained shall not be less than eighteen feet (18”); and in the case of resurfacing and maintenance, from curb to curb where curbs exist, or the full width of the roadway where no curbs exist.

Nothing in those statutes limits state highways or municipal streets to a certain width; the18” mentioned in Tennessee Code Annotated, section 54-5-202 speaks of 18 foot width as the minimum width of highways in municipalities, and, with respect to “resurfacing and maintenance” from “curb to curb” where curbs exist, and “the full width of the roadway” where no curbs exist.

The question of how wide highways are has arisen several times in Tennessee. In Ludwick v. Doe, 914 S.W.2d 522 (Tenn. Ct. App. 1996), the Court pointed to the definitions of "street" and "highway" in T.C.A. § 55-8-101(60) and (21) [now (63) and (23)] in a case involving passing on the right in which an accident occurred. The definition of both terms is the same, declared the court: "[t]he entire width between boundary lines of every way when any part thereof is open to the use of the public for purposes of vehicular traffic." For that reason, concluded the Court:

It is obvious from these definitions that the concept of a 'street' or 'highway' contemplates an area that is wider than the part used for the "purposes of vehicular traffic." It should also be noted that neither definition is tied to a paved area. We believe that when the definitional language is given its 'ordinary and usual meaning' read in the context of the definitions, the conclusion is inescapable that the legislature intended that the words 'street' and 'highway' would be synonymous with the full right of way. Thus a 'street' or 'highway' as those words are used in Tennessee Code Annotated 55-8-118 [which regulates passing on the right], refers to the part designated for vehicular travel by the public, any paved shoulder, any unpaved shoulder, and any remaining part of the right of way [Citing State v. Mains, 634 S.W.2d 280, 282 (Tenn. Cr. App.)] [At 525].

In State v. Mains, 634 S.W.2d 280 (Tenn. Cr. App. 1982), the Court considered the question of whether a defendant charged with vehicular homicide arising from drunk driving was on the "highway," when the homicide occurred off the paved portion of the roadway. The area in question was described by witnesses as a

'pull-out place' and was described by one officer as being two hundred to three hundred feet long and wide enough for two or three cars to park side by side. This officer also testified the area was part of the 'state highway right of way.'

Pointing to the definition of "highway" in T.C.A. § 55-8-101(20) [now (23)], the Court declared that, "The word 'highway' is defined for the purposes of the drunken driving statute as: 'The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." [Note: the term "publicly maintained" was removed from the statute by Public Acts 1988, chapter 555]. Then the Court went on to determine what that width included:

The term 'public highway' has been described by our Supreme Court as 'such a passageway as any and all members of the public have an absolute right to use as distinguished from a permissive privilege of using same.' [Citations omitted.] Other states have held that the "shoulder" of a highway is included in the term 'highway.' [Citations omitted.] Interpreting a legislative definition similar to ours cited above, the North Carolina Supreme Court held that the statutory reference to the 'entire width' includes everything between the right of way lines of the 'highway' for statutory purposes [At 282].

Those definitions included the pull-off, concluded the Court.

Doe v. Ludwick is cited again in unreported Turucz v. Madewell, 2003 WL 202580 (Tenn. Ct. App.), in which the plaintiff argued that the trial court’s instructions to the jury were inaccurate, “with respect to certain rules of the road, in view of the fact that, according to the plaintiff, the rules of the road are not applicable to an accident on the shoulder of the road or on private property….” The court’s response was that:

We have held that, as defined in the rules of the road, “street” and “highway” mean the same thing. Ludwick, 9194 S.W.2d at 525. They are “synonymous with the full right of way.” Id. Thus, it can be seen that a “street” or “highway” will almost always be a wider area than the “pavement or main-travelled portion of the roadway.” Id. This is because the right of way typically includes some unpaved portion. [At 4]

I can think of no reason the definition of “streets” and “highways” found in the rules of the road would not apply to any traffic barriers placed in highways by abutting property owners.

I am not sure of the width of the old restored Highway 11 South right of way in the apex of that highway and Highway 11. But the Bradley County Assessor of Property Map dated 12/2/2010 shows that the business in question is well into the right of way of restored Highway 11 South, and that the five metal posts are likewise clearly within that right of way. Even if the highway right of way is more narrow than reflected on that map, the above cases make it plain that the old restored Highway 11 South highway undoubtedly has a right of way that is wider than its pavement, and that the metal posts are in that right of way, they being immediately on the edge of the pavement. It is absurd to argue that a motor vehicle that runs a tire a few inches off the pavement and hits those poles is on private property.

Even if the metal posts were found to be outside the right of way, the owner of the business in the apex would have no right to install barriers on or near the right of way that pose a threat to the use of the right of way.

Tennessee municipalities are liable under the Tennessee Governmental Tort Liability Act for unsafe and defective streets and highways, "owned and controlled" by them, and when the particular municipality at issue has constructive or actual notice of the condition alleged to constitute an unsafe and defective street or highway [T.C.A. § 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); Fret well v. Chaffin, 652 S.W.2d 948 (Tenn. Ct. App. 1984); Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn. Ct. App. 1992).] However, as far as I can determine, there is no Tennessee case in which a city has been found liable under the Tennessee Governmental Tort Liability Act for any injury or damage that have occurred on a state highway.

The Tennessee Governmental Tort Liability Act does not define the dimensions of a "street" or "highway," except to say that it includes "traffic control devices thereon." 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" [T.C.A. §§ 55-8-101(23) and (64)]. Assuming that the definition of streets and highways is probably the same for the purposes of the Tennessee Governmental Tort Liability Act as it is for T.C.A., Title 55, Chapter 8, these definitions appear to include the entire street right-of-way.

Apparently there is no reported case under the Tennessee Governmental Tort Liability Act involving damage to a motorist or pedestrian arising from a condition on private property entirely outside the boundary of the street right-of-way. But governments have been held liable for damages arising from such conditions in a significant number of cases in the United States [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; 52 A.L.R.2d 689; 57 A.L.R.4th 1217; 19 A.L.R.4th 532].

Prior to the enactment of the Tennessee Governmental Tort Liability Act in 1973, in City of Knoxville v. Baker, 150 S.W.2d 224 (Tenn. 1941), the question was whether the city was liable for injury to a pedestrian who voluntarily stepped off a sidewalk and tripped over a steel water cut-off rod projecting 18 inches above ground, but located 18-21 inches off the sidewalk and entirely upon private property. The Tennessee Supreme Court held the city was not liable for the injury on the premise that when he was injured, the pedestrian was a voluntary trespasser on private property. But in doing so the Court rejected the city's argument that it was not liable for the injury because "its duty of keeping the street and sidewalk clear of obstructions extended only to the limits of the streets 'as made and used'; that it was under no duty to go upon private premises and remove the water cutoff or erect a barrier along the side of the walk to prevent persons from straying off the sidewalk and into a place of danger." The rule, declared the Court, is

that if an obstruction or excavation be permitted which renders the alley, street, or highway unsafe or dangerous to persons or vehicles—whether it lie immediately in or on the alley, street, or highway, or so near it as to produce the danger to the passer at any time when he shall properly desire to use such highway,—it is such a nuisance as renders the corporation liable.... [Emphasis is mine.]....A party bound to keep a highway in repair and open for the passage of the public in a city by night or by day, certainly cannot be held to perform that duty by simply keeping the area of the highway free, while along its edge there is a well or excavation undisclosed, into which the passer, by an inadvertent step or an accidental stumble, might fall at any time. [Citing Niblett v. Nashville, 59 Tenn. 684, 12 Heisk. 684, 686-689, 27 Am. Rep. 755.] [At 226-227.] [Emphasis the court’s.]

But Baker v. City of Knoxville was speaking of such street and highway obstructions as nuisances. Generally cities can abate nuisances. As we saw above, it was held in Collier v.Memphis Light, Gas and Water Division, 657 S.W.2d 771 (Tenn. Ct. App. 1983) and Britton v.
Claiborne County, 898 S.W.2d 220 (Tenn. Ct. App. 1995), that “[t]he legislature left little if any room for doubt that actions against governmental entities for damages based on activities
historically labeled ’nuisance’ are now included in and covered by the [Tennessee Governmental Tort Liability] Act.” [A Britton v. Claiborne County, at 222]

But are the metal poles in the highway at the apex, which apparently have not yet caused any physical damage to a vehicle person or other property, a “nuisance”?

A strong argument can be made that they are. The plaintiff in Collier v. Memphis Light,Gas & Water Division ran off the road, struck a utility pole, and wires falling from that pole struck her car, killing one of her children and severely injuring her two other children. The plaintiff sued the city and MLG&W for damages alleging that their maintenance of the streets and pole constituted a nuisance. In holding that her suit for damages must be brought under the Tennessee Governmental Tort Liability Act, the court did not disagree with the proposition that the chancery court had the inherent jurisdiction to abate a nuisance “which is in the nature of a proceeding for injunction.” [At 776] Whether the power pole in that case would have been found to be a nuisance before the accident is, of course, not known, but both City of Knoxville v.Baker and Collier v. Memphis Light, Gas & Water indicate that obstructions in streets are actionable as nuisances.

That conclusion is also supported by Knierim v. Leatherwood, 542 S.W.2d 806 (Tenn. 976), and Maxwell v. Lax, 292 S.W.2d 223 (Ct. App. 954). In that case it is said that, “….the grantors of the right-of-way or easement after the dedication of the street, would have no legal right to authorize the construction of anything in the street area which might constitute an obstruction or hazard or a nuisance to the traveling public who might use the street.” [At 226] The same case also declared that the county highway superintendent had no authority to grant a property owner such a right.

But because the highway in question is still a state highway, let me strongly urge you to first complain to the Tennessee Department of Transportation about the unauthorized metal poles in the right of way. It may be that TDOT may have an alternative solution to the problem that still leads to the removal of the metal poles. As I pointed out above, under the Tennessee Governmental Tort Liability Act, specifically Tennessee Code Annotated, section 29-2-203(a) it is the governmental entity that has ownership and control of the defective, unsafe or dangerous street, alley, sidewalk or highway that triggers the liability of that entity for any injuries or damages resulting therefrom, and I have found no cases in which a municipality has been found liable for injuries and damages on a state highway. But I am nervous about that conclusion because, as is also pointed out above, a state highway that runs through a municipality is a municipal street over which state traffic is routed. But it seems to me that the position of TDOT on the installation and removal of the unauthorized metal poles should be ascertained before the city takes further legal action in this matter.


Sidney D. Hemsley
Senior Legal Consultant