June 19, 1996
As I understand your E-mail message of May 16, your question is: how does the city enforce its ordinance preventing encroachment on the city right of way "with signs, for sale cars, and some large, brick driveway entrance structures"? Apparently, your principal area of concern is a state highway that runs through the city.
I am not sure of which ordinance you are speaking. I found Section 16-101 of your Municipal Code, which provides that:
No person shall use or occupy any portion of any public street, alley, sidewalk, or right of way for the purpose of storing, selling, or exhibiting any goods, wares, merchandise, or materials. The chief of police may remove, at the expense of the owner, any goods, wares, merchandise, or materials found in violation of this section.
Other provisions in Title 16, chapter 1 of your Municipal Code prevent or limit other encroachments.
I will first outline the basic law regarding street easements, including how streets are established, because that determines their boundaries; then I will turn to the question of how the city can regulate encroachments within those easements, including the legal theories supporting those regulations.
Establishing Streets and Their Boundaries.
A. The Character of State Highways in Municipalities.
State Highways running through municipalities are simply municipal streets over which state traffic is routed, and the municipality retains its police powers over such streets. [See 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)].
Tennessee Code Annotated, section 54-5-202, governs the width of state highways running through municipalities:
The streets so constructed, reconstructed, improved, and maintained by the state shall be of such width and type as the department may think 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.
Presumably, the width of the street easement of the state highway with which you are particularly concerned could be fairly easily ascertained from the documents related to the acquisition of the right-of-way for that highway. The statute considers the width of the street for resurfacing and maintenance purposes to be from curb to curb where curbs exist, or the full width of the roadway. The width of the street easement in most cases will probably be greater.
B. Municipalities' Broad Police Power Over Their Streets.
It has been held that "very broad powers of regulation, and wide discretion, in the exercise of the police power, are held to be vested in municipalities in touching the use of its streets." [See Steil v. City of Chattanooga, 152 S.W.2d 624, 626 (Tenn. 1941).] It has also been held that the courts will not interfere with the exercise of that discretionary power except in the case of fraud or clear abuse of power. Those police powers also extend to state highways running through cities. [See Collier v. Memphis, above; Blackburn v. Dillon, 225 S.W.2d 47 (Tenn. 1949).]
C. Establishment of Streets.
It was said in Henry County v. Summers, 547 S.W.2d 247, 250 (Tenn. App. 1976), that:
Unless a passageway has been created a public way in some manner known to the law, such as by act of the public authorities, or the express dedication by the owner, or by an implied dedication by means of the use by the public and acceptance by them with the intention of the owner that the use become public, or by adverse user for a period of 2 years continuously creating a prescriptive right, it is not a public way.
The creation of public ways "in some manner known to the law" includes:
1. County roads automatically become city streets upon the incorporation of the city or by annexation of territory into the city. [See 64 C.J.S., Municipal Corporations, Sec. 1661; T.G. Jordan et al. v. City of Cleveland, 148 Tenn. 337 (1922).] However, generally the county road map reflecting what county roads existed at the time of the incorporation will not include the width of the roads.
2. Formal dedication and acceptance. This method contemplates a formal offer, and a public acceptance of, the dedication. [See Smith v. Black, 547 S.W.2d 947 (Tenn. App. 1977)]. A statutory method for the formal dedication and acceptance of subdivision streets is found in Tennessee Code Annotated, section 13-4-301 et seq. However, it is also said in 10A McQuillin, Municipal Corporations, section 33.30 that one of the ways to show intent to dedicate land to public use is by "recitals in a deed in which the rights of the public are recognized." For that reason, I include within the category of formal dedication and acceptance instances where a municipality acquires land for a street by formal purchases.
3. Implied dedication and acceptance. This method measures the conduct of the parties. It is said in Roger v. Sain, 679 S.W.2d (Tenn. App. 1984), that:
It has long been established that private land can be implicitly dedicated to use as a public road. [Citation omitted.] When an implied dedication is claimed, the focus of the inquiry is whether the landowner intended to dedicate the land to a public use. [Citations omitted.] The proof on the issue of intent to dedicate may be inferred from surrounding facts and circumstances, including the overt acts of the owner. [Citation omitted.]
Citing an earlier case that quoted from Elliot on Roads and Streets, section 92, the Court continued:
Among the factors which indicate an intent to dedicate are: the landowner opens a road to public travel [Citations omitted.]; acquiescence in the use of the road as a public road, [Citations omitted.]; and the fact that the public has used the road for an extended period of time. [Citations omitted.] While dedication is not dependent on duration of the use, extended use is a circumstance tending to show an intent to dedicate. [Citations omitted.] Finally, an intent to dedicate is inferable when the roadway is repaired and maintained by the public.
It was also said in Reeves v. Perkins, 590 S.W.2d 233, 234-35 (Tenn. App. 1973) that, "Dedication may arise from the failure of the owner to object to user by the public. A highway may be established in this manner."
However, it appears to me that there may be a formal dedication and an implied acceptance of a street easement. The approval and recording of a subdivision plat does not constitute acceptance of the subdivision roads, but probably does constitute formal dedication of the roads. If the city fails to formally accept the dedication, its conduct in the use of the street may constitute implied acceptance. [See Smith v. Black, cited above; Hackett v. Smith County, 75 TAM 14 (Feb. 28, 1990).]
Some of the acts that indicate implied acceptance of the street on the part of the city include tolerance of common use by the public, construction and maintenance by city and other utilities of utility installations in the street, listing on an official street map, use of the street by school buses, law enforcement agencies, and absence of the street from the tax rolls and special assessments. [See State ex. rel. Matthews v. Metro. Gov't of Nashville, 679 S.W.2d 946 (Tenn. 1984); Hackett v. Smith County, 807 S.W.2d 695 (Tenn. App. 1990); West Meade Homeowners Association v. WPMC, Inc., 788 S.W.2d 365 (Tenn. App. 1989).]
No specific time limit triggers an implied dedication. In Nicely v. Nicely, 232 S.W.2d 421 (Ct. App. 1949), an implied dedication arose from five years use, along with other circumstances, including road grading with public funds. In Payton v. Richardson, 356 S.W.2d 289 (Tenn. App. 1962), the Court declared that, "The manner of its use is more material than the length of time the use has continued."
4. Prescription. A street easement arises by prescription when a person, including a government, uses another person's land as a street openly and notoriously under a claim of right for an uninterrupted period of twenty years. It is said in Morgan County v. Goans, 138 Tenn. 381, 198 S.W. 69 (Tenn. 1917), that, "Twenty years' adverse possessor will establish a right of way either in the public or in private persons." The claim of right and acceptance of the street by the government can be shown by public maintenance of the street. [Also see Callahan v. Town of Middleton, 292 S.W.2d 501 (Tenn. Ct. App. 1954); Morgan County v. Goans, 138 Tenn. 381, 198 S.W. 69 (1917); City of Knoxville et al. v. Sprankle, et al., 9 Tenn. App. 218 (1928); Lewisburg v. Emerson, 5 Tenn. App. 127 (1927).]
5. Eminent domain. This is a taking of land authorized under various laws of Tennessee. Generally, the dimensions of the taking are usually very clear.
D. Determining the Width of the Street Easement.
Sometimes the width of street easements can easily be ascertained from a plat, deed, or other allied documents. That is probably most true of streets established by formal dedication and acceptance, by formal dedication and implied acceptance, and by eminent domain. However, often no documents exist with respect to many street easements, particularly in the case of implied dedication and acceptance and of prescription, or the documents do not specify the width of the easement.
The heavy weight of authority in the United States is that where there is an express grant of a street easement that does not specify its width, the width is determined by the intention of the parties to the grant, and that intention is determined from the facts and circumstances, sometimes including the use of the easement. Generally, the width determined by the courts is what is reasonable, convenient, and suitable. [28 A.L.R.2d 253]
That appears to be the rule in Tennessee. With respect to streets created by formal dedication and acceptance, it was said in Town of Benton v. Peoples Bank of Polk County, 20 TAM 20-24 (Tenn. Ct. App. E.S., 1995), that "the object in all boundary cases is to find, as nearly as may be, certain evidence of what particular land was meant to be included for conveyance." It was also said in Doyle v. Chattanooga, 128 Tenn. 433 (1913), that:
The execution of an official map by the city, showing the street offered to be dedicated to be such, has also been held to be evidence of an acceptance. [Citation omitted.] Where the dedication is clearly defined, as in this case by a registered map, and the public user is of the whole, practically speaking, the presumption is that an act of acceptance of a part thereof is an acceptance of the whole. [Citations omitted.] [At 441.]
It is often difficult to determine the width of street easements acquired by prescription.
It is said in 29 Am.Jur.2d Highways, Streets and Bridges, sec. 52, that:
as general proposition, the width of a highway established solely by prescription or user is determined by the extent of such use.... While there are cases which appear to recognize that a highway acquired by prescription or user does not extend beyond the beaten or traveled path, it is more generally held that the public easement is not necessarily confined strictly to the beaten or traveled path in every instance. In some cases the determination of the width of a highway acquired by prescription or user rests upon whether or not a particular width is necessary for the convenience of the public.... Ditches along the side of a highway acquired by prescription or user are generally regarded within the boundaries of a highway.
It is likewise said in 10A McQuillin, sec. 39.29 that:
The extent of the prescriptive easement, it is held, is governed entirely by the extent of the user. The boundary of a public highway acquired by public use is a question of fact to be determined by the appropriate finder of fact. This is to say, that the extent of a street or alley acquired by prescription is generally limited to the portion actually used.
But 10A McQuillin 30.22 also says, that:
It has been held that the width of a prescriptive easement is not limited to that portion of the road actually traveled, and it may include the shoulders and the ditches that are needed and have actually been used to support and maintain the traveled portion.
76 A.L.R.2d 535 says that the width of street easements established by prescription is determined by the extent of use. It also appears to conclude that generally the width of such easements includes not only the traveled portions of the street, but also such adjacent land reasonably necessary for public travel as determined by the peculiar circumstances of the case in question, and such additional land as might be needed for repairs and improvements. It also points to cases holding that the easement includes drainage ditches and waterways.
Finally, 10A McQuillin, Municipal Corporations, section 30.03 says that, "Street, in a legal sense, usually includes all parts of the way--the roadway, the gutters and the sidewalks."
Many cases in Tennessee deal with the question of whether a street is a municipal street, and some of those cases deal with the question of the width of the street. Unfortunately, most of the latter cases provide little practical guidance to cities.
However, it was said in Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946), that, "The term street in ordinary legal signification includes all parts of the way, roadway, gutters and the sidewalks." In that case the width of the street easement in that case was clearly 40 feet, and the only question was whether the city had the authority to build a sidewalk within that easement as a form of public travel, but the proposition that the width of the “street” includes the roadway, gutters and sidewalks appears to apply to street width in general.
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 Tennessee Code Annotated, section 55-8-101(20) [now (21)], 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.
Those definitions included the pull-off, concluded the Court.
That case is also pertinent to the width of streets because the definition of "street" in Tennessee Code Annotated, section 55-5-101(60) is exactly the same as the definition of "highway" in the same statute.
The Nature of Street Easements.
As you undoubtedly know, cities usually do not own their streets in the sense of owning the underlying fee. Usually the abutting property owners own the underlying fee to the center line of the street, and the city has only a transportation easement or right-of-way across the property for the use of public travel. [See Hamilton County v. Rape, 101 Tenn. 222, 47 S.W. 416 (1898); Patton v. Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901).]
Generally, the owners of easements of any kind have the right to use those easements only for their intended purpose, the corollary of which is the property owners abutting easements have the right to use the property consisting of the easement in any way that does not affect the purpose of the easement. [See Yates v. Metropolitan Government of Nashville and Davidson County, 451 S.W.2d 437 (Tenn. Ct. App. 1969); Southern Ry. Co. v. Vann, 142 Tenn. 76, 216 S.W. 727 (1919); and U.S. ex rel. and for the Use of Tennessee Valley Authority v. An Easement and Right of Way 150 Feet Wide and 582.4 Feet Long Over Certain Land in De Kalb County, Tennessee, 182 F. Supp. (D.C. Tenn. 1960).]
Let me recapitulate three principals governing street easements that bear on your question:
1. State highways are municipal streets over which state traffic is routed.
2. The width of street easements formally established through formal dedication and acceptance and by eminent domain can probably be ascertained from documents. The width of street easements established through implied dedication and acceptance may or may not be easily ascertained though documents. The width of street easements established through prescription will generally not be ascertained from documents because the width depends entirely upon use.
3. Whatever the width of the street easement, the owners of the underlying fee are entitled to use the easement in a manner not inconsistent with the purpose of the easement, provided the use is otherwise legal.
Legal Theories Under Which Municipalities Can Regulate Their Streets.
It is probably fundamental that cities can prohibit or regulate the placement of signs and other obstructions overhanging or projecting into the streets. The cases in that area have taken three approaches to such prohibitions:
1. The regulation is permitted as a legitimate exercise of the city's police powers.
2. The regulation is permitted because the city has the right to control the use of its streets.
Some courts have also upheld such regulations on both grounds. [See 80 A.L.R.3d 687.]
In addition, in Tennessee (as in other states) municipalities probably have an affirmative obligation to prevent the obstructions of their streets. [See City of Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914); State v. Stroud, 52 S.W. 697 (Chan. App. Tenn. 1898); Stewart et al. v. Illinois Central Railroad Co., 143 Tenn. 146 (Tenn. 1920).]
Presumably, that authority on all those grounds would extend to shoulders and ditches where those are part of the road. Where the street includes shoulders and/or ditches that extend beyond the curb, the prohibition would probably be operable in that territory.
A. Police Power Regulations.
The overwhelming weight of authority in the United States is that municipalities have the authority to prohibit advertising structures within a certain distance of streets and highways. In fact, 81 A.L.R.3d 564 says that, "Thus, no case within the scope of this annotation disputes the proposition that a reasonable provision prohibiting the erection or maintenance of advertising structures within a specified distance of a street or highway, which bears a substantial relation to the public health, safety, or general welfare, constitutes a valid exercise of the police power." [At sec. 2[a].]
However, such sign regulations are required to content neutral; that is, they cannot discriminate between forms of speech on the signs. A four point test for content neutrality was announced by the United States Supreme Court in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L.Ed.2d 672 (1968):
1. The regulation must be within the constitutional powers of government;
2. The regulation must further a substantial government interest;
3. The government interest must be unrelated to the suppression of expression;
4. The regulation must be "narrowly tailored;" that is, it must pose an incidental burden on First Amendment freedoms that is no greater than is essential to further the government interest.
The prohibition by a Tennessee municipality of signs within a certain distance of the streets and highways in Tennessee should meet the first prong of the test as being within the police powers of the municipality. It should meet the second and third prongs of the test by furthering the municipality's interest in traffic safety and aesthetics. An aesthetic interest alone might be sufficient. [See State v. Smith, 618 S.W.2d 474 (Tenn. 1981); 8 McQuillin, Municipal Corporations, section 25.31.] Finally, it should meet the fourth prong of the test as long as the prohibition does not discriminate on the basis of signs' messages, and the distance is reasonable.
I can find no cases on the question of whether the placement of entranceway to private property can be regulated under a municipality's police powers. However, I see no reason why such reasonable regulations would not be upheld on the ground that they promoted public safety, and perhaps aesthetics.
B. The Right to Control Street Easements.
As pointed out above, it seems clear that a municipality can prohibit structures of every kind within the territory comprising the street, including the traveled portion, and probably the shoulders and ditches. [Also see Maxwell v. Lax, 292 S.W.2d 223 (Tenn. App. 1954).
The more difficult question is the extent to which the city can regulate the placement of signs and other structures that lie outside the traveled portion of the street (including the shoulders and ditches) but that may lie inside the street easement. For example, a street easement may be, say, 100 feet wide, but the traveled portion of the street may be, say, 50 feet wide and its width bounded by curbs, perhaps even walls or other relatively plain boundaries. In such cases, the abutting property owners could probably use the 50 feet outside the traveled portion of the street easement in any manner they desire, provided their use did not interfere with the public's use of the street, and provided the use was otherwise legal.
The same thing would probably apply to street easements where no street has been built. That use would probably include the placement of signs and many other structures. However, if the city decided to expand the street, the abutting property owners would be required to remove any installations that interfered with the expansion. [See West Meade Homeowners Association, above.]
Liability of Municipalities for Structures in Street Boundaries and Easement.
The specter of mausoleum-type property entrances or other structures sitting immediately on the curb raises some interesting municipal liability questions.
Tennessee municipalities are liable under the Tennessee Tort Liability Act for unsafe and defective highways and structures. [Tennessee Code Annotated, sections 29-20-203 and 204.] I have concluded from earlier research that municipalities are probably not liable for damages arising from brick and other stoutly built mailboxes that project to the edge of--but that do not invade-- the traveled portion of the street. [See attached memorandum.] However, those structures appear to be peculiar because they involve strong federal and state law and policy pertinent to the delivery of mail and utility service.
Governmental liability for damages arising from obstructions both within and without but near, the boundaries of streets has been an issue in a significant number of cases in the United States. It appears to me that the weight of authority is that liability will most likely be found where the structure is on the shoulder of the road, less likely where the obstruction is off the shoulder and otherwise out of the boundaries of the street. [See 19 A.L.R.4th 532.] That is, of course, no revelation, but unfortunately that is as near as I can get on the liability question. Generally, municipalities are not liable for damages arising from structures they did not place within an easement. [See Yates v. Metro Gvt. Nashville and Davidson County, 451 S.W.2d 437 (Tenn. App. 1969).] How well that generality would hold up under the Tennessee Tort Liability Act is not clear.
Street Width Cases and the Municipal Court.
Because the question of the width of the street is a question of fact, the municipal court is probably within its authority to require the city to prove its width where the defendant's challenge to the charge of encroachment is that the object of encroachment is outside the street easement or the boundary of the street, whichever the case may be. In the case of a state highway, considerable documentary evidence of the width of the street easement should be available.
In some cases where no documents support the city's claim of the width, "a picture is worth a thousand words." Such pictures were used to good effect in Maxwell, cited above. Any reasonably good photographer should be able to get a picture that will include the traveled portion of the street and any shoulders, ditches and utility poles and other utility installations that signify the use of the street in relation to the encroachment in question. Aerial photography has been used in some cases.
A police officer was permitted to testify in State v. Mains that the pull-off area at issue was within the state right-of-way, and that was a vehicular homicide case. It appears to me that in many cases fairly minimum testimony on the part of city officials familiar with the street at issue should be able to establish the traveled portion of the street, including shoulders, ditches, etc. beyond reasonable dispute.
Where the encroachment is within the boundaries of the street easement but not within the boundaries of the traveled portion of the street (including the shoulders and ditches) it should probably be relatively easy to determine if the abutting property owners use of the easement is inconsistent with the purposes of the easement. If the encroachment is a sign or other structure that does not interfere with motor vehicle and (in appropriate cases) pedestrian traffic, the property owner is probably within his rights in the use of the easement, unless the use is a violation of a legitimate police power regulation.
I find no authority anywhere for the city judge to require that the city stake out the boundaries of its streets or street easements or to fashion other remedies in cases involving street boundaries. Even the circuit courts, to which municipal ordinance violation appeals are taken, probably have no authority to order such remedies. [See Butts v. South Fulton, 565 S.W.2d 63 (Tenn. App. 1977); Miller v. City of Brentwood, 548 S.W.2d 878 (Tenn. App. 1975).] I think the municipal court is limited to a finding of guilty or not guilty with respect to the civil violation charged.
Appeals to the circuit court are de novo, and the defendant is entitled to a jury trial there. For that reason, the city has an investment in making sure the boundaries of the streets or street easements in question are clear. It may be appropriate in recurring disputes with property owners to have such boundary questions that cannot be resolved by reference to documents, resolved by the courts before charges of encroachment are made. Your city attorney is in the best position to know which of those remedies, and in which courts, in your county the best resolution can be found. Such resolutions can be expensive and time-consuming, but may be the only option in some cases.
Sidney D. Hemsley
Senior Law Consultant