FROM: Sid Hemsley, Senior Law Consultant
DATE: December 10, 2001
RE: Right of City to Excavate Ditch Adjacent to City Street
The City has the following question: Does the city have the right to excavate a ditch adjacent to the Road?
The answer is yes, provided that the facts provided to me, and the assumptions I have made, are accurate.
As I understand those facts, the property owner filled in the ditch on the north side of the Road “several years ago.” The property owner’s filling of the ditch causes flooding on the south side of the Road. The property owner contends that the city has no right to excavate the ditch, that the ditch is a part of his property. I have assumed that the Road is properly a city street. I have also assumed that the ditch in question is immediately adjacent to the Road, and that it drained the Road.
It is difficult to determine the width of many city streets. Some of them are created by an express grant in a deed that does not specify the width. A large number of them are created informally by implied dedication and acceptance, by “user,” or by prescription. I will not get into the fine distinctions between those methods of creating streets. It is sufficient for the purposes of the city’s question to say that streets created by those methods involve the treatment of the property by the public and by the city as streets, and that those methods usually involve no documents. How wide such streets are beyond their actual regularly traveled surfaces is a frequent question.
It is said in 10A McQuillin, Municipal Corporations, ' 30.03, that “Street in a legal sense, usually includes all parts of the way--the roadway, the gutters and the sidewalks.” The same authority, ' 30.22, further 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. [Emphasis is mine.]
29 Am.Jur.2d Highways and Streets, ' 52, says that, “Ditches along the side of a highway acquired by prescription or user are generally regarded as within the boundaries of a highway.” [Emphasis is mine.]
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 included not only the traveled portions of the street, but also such adjacent land reasonably necessary for public travel as determined by the particular circumstances of the case in question, and such additional land as might be needed for repairs and improvement. It also points to cases holding that the easement includes drainage ditches and waterways.
Those general rules also reflect the rule in Tennessee. It is said in Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946), that “The term street in ordinary legal signification includes all or parts of the way, roadway, gutters and the sidewalks.” [Emphasis is mine.]
In Ludwick v. Doe, 914 S.W.2d 522 (Tenn. Ct. App. 1996), the court pointed to the definition of “street” and “highway” in Tennessee Code Annotated, ' 55-8-101(60) and (21), pointing out that the definitions were the same: “the 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 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 additional language is given its ‘ordinary and usual meaning’ read in the context of the definitions, the conclusion is inescapable that the legislature intended 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. Ct. App.) [At 525] [Emphasis is mine.]
In State v. Mains, above, the Court considered the question of whether a defendant charged with vehicular homicide arising from drunk driving was on the ‘highway’ within the meaning of Tennessee Code Annotated, ' 55-8-101(20) [now (21)], when the death occurred off the paved portion of the highway. The area in question was described by a witness 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.’
Holding that the homicide occurred on the ‘highway,’ the Court explained what the width of the highway 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 the 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.
The above cases make it clear that a street is wider than the paved portion, and that it includes the shoulders, ditches, gutters, and waterways. Common sense also supports those cases. A ditch that drains a street is logically a part of the street.
Municipalities have police power over their streets regardless of how those streets were created. [Collier v. Baker, 27 S.W.2d 1085 (1030); 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).] The police power cannot be contracted away or surrendered. In addition, in Tennessee (as in other states) municipalities have an affirmative obligation to prevent the obstruction of their streets. [City of Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914); State v. Stroud, 52 S.W. 697 (Chan. App. Tenn. 1898); Stewart v. Illinois Central Railroad Co., 143 Tenn. 146 (Tenn. 1920).] Where the street includes a ditch adjacent to and draining the surface of the street, that police power and that affirmative obligation, extends to the ditch.
If the property owner in question refuses to accede to the exercise of the city’s authority over the ditch in question, the city may consider obtaining a declaratory judgment that the ditch is a part of the city street, or take whatever other appropriate legal action the city attorney thinks best.