November 4, 1993
Your questions are:
1. Can the owners of properties A & B, reflected in the attached map, secure the closing of a certain road between another boulevard and the railroad right of way over the objections of the city?
2. What is the likelihood of property owners A, B, C, and D, reflected on the same map, successfully challenging the closing of the road?
Under the facts you related to me by telephone on November 4, the answers to the questions are as follows:
2. Zero to extremely small.
However, a warning to the city is necessary here: one or more of the property owners may be entitled to recover damages from the city for the closing of the railroad crossing. Under the facts, that also appears not likely, but the city should consider that possibility. The right of abutting property owners to recover for damages from the closing of a street are at once related and separate issues. I will touch on both issues in this opinion.
The reason the city is closing the portion of the road, which constitutes the railroad crossing abutted by property owners A, B, C, and D, is that the state has asked the city to do so. That crossing is lightly used. The state proposes to signalize all the city's railroad crossings if the city closes that crossing. The road on both sides of the crossing would remain open.
Analysis of Question 1.
Streets belong to the public until they are vacated or abandoned by the municipality. The entire public has a right to use the streets, subject only to the reasonable regulation of them by the municipality. Generally, property owners have no say in the location, establishment and construction of municipal streets, and the courts will not interfere with municipal decisions in those areas absent fraud or a clear abuse of power. [See Georgia v. Chattanooga, 4 Tenn. App. 674 (1927), Brimer v. Municipality of Jefferson City, 187 Tenn. 467, 216 S.W.2d 1 (1948); Swafford v. City of Chattanooga, 743 S.W.2d 174 (Tenn. Ct. App. 1987), and the cases cited in he answer to Question 2] Abutting property owners have a greater interest in municipal streets than does the general public to the extent that they are generally entitled to access to their property via those streets, but their interest is subordinate to the public's right of use of the streets. [See Collier v. Memphis, 180 Tenn. 509, 176 S.W.2d 818 (1944), and Blackburn v. Dillon, 189 Tenn. 240, 225 S.W.2d 46 (1949)]
I find nothing in the law governing the vacation or abandonment of streets and highways that suggests a property owner, including an abutting property owner, can formally compel a city to close a street, except to the extent his or her political power extends that far. The right to formally close a street is entirely within the authority of the city. An abutting property owner might argue the city has abandoned the street. However, proving abandonment of a street is a heavy burden, even if there has been nonuse of it for a long period. [See Burkitt v. State, 59 S.W. 429 (Tenn. Ch. App. 1900); Cartwright v. Bell, 57 Tenn. App. 352, 418 S.W.2d 463 (1967); Hill v. Hoffman, 58 S.W. 929 (Tenn. Ch. App. 1899); State v. Smith, 34 Tenn. App. 608, 214 S.W.2d 844 (1950)]; Cottrell v. Daniel, 30 Tenn. App. 339, 205 S.W.2d 973 (1947); Edminston Corp. v. Carpenter, 540 S.W.2d 260 (Tenn. App. 1976)] It was also recently held in Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. App. 1987) that, "If there is public acceptance of the road, the fee is burdened with the rights of the general public to use the land as a public road until such time as it is closed by public authority." [Emphasis is mine]
Based on those authorities, my opinion is that there is little, if any, possibility the property owners in question could secure the closing of the road without formal action on the part of the city to close it. That opinion is also supported by cases that address Question 2.
Analysis of Question 2.
An abutting property owner has the right to sue to prevent a city from closing a street. That is what the Tennessee Supreme Court said in W. G. Wilkins et al. v. Chicago, St. Louis & New Orleans Railroad Company et al., 110 Tenn. 423 (1903). But it continued, "It is also true that the city has the right to abandon a street, that is, its easement of way which it holds in trust for the public, if for the public interests..." [Emphasis is mine]
The Tennessee Court of Appeals, Western Section, in Wilkey v. Cincinnati, New Orleans & Texas Pacific Railway Company, 340 S.W.2d 256 (1960) specifically addressed the question of whether a city could eliminate a grade crossing by closing the portion of the street which constitutes the crossing. In a left-handed fashion it said yes, provided the closing was done by ordinance.
There the Rhea County Chancery Court had permanently enjoined the railroad and the city from closing a railway crossing on a certain street, which was barricaded on both sides of the crossing. The Court of Appeals upheld the injunction, but it was clear the decision would have gone the other way had the city closed the crossing by ordinance.
Instead the city had passed a resolution to close the crossing upon the completion by the state of an underpass several blocks away. The crossing had been a part of the state highway system, but the state highway was rerouted to conform to the location of the new underpass. The state's contractor had barricaded the crossing in accordance with its contract with the state. After holding that when a street is no longer part of the state highway system, jurisdiction over it reverts to the municipality, and that the state statute authorizing the state to eliminate grade crossings applied only to streets in the state highway system, the Court declared that, "We cannot agree that the resolution in question obviates the necessity of an ordinance closing the crossing on West Second Avenue." The Court continued with the observation that:
It may well be, as both the State and the Railway Company strongly insist, that it is necessary to close the crossing on West Second Avenue to promote the safety of the travelling public. If so, the responsibility for closing it remains with the local authorities. [Emphasis is mine]
The fact that the injunction against the closing of the street was upheld in Wilkey should give the City no cause for concern on the question of whether it has the right to close the railroad crossing in question. As we have seen, and will see further momentarily, the injunction rested upon the failure of the city to close the crossing by ordinance. Had the city closed the crossing by ordinance the abutting property owners would have had the right to sue the city for a compensable taking of property. Because the city did not do so, the only remedy left to the plaintiffs was injunction. But the City proposed to close the crossing in question by ordinance.
Later cases speak even more emphatically about the right of municipalities to close streets. In Sweetwater Valley Memorial Park v. Sweetwater, 213 Tenn. 1, 372 S.W.2d 168 (1963), the Tennessee Supreme Court, citing earlier cases, announced the principals that apply to street closings. They are worth quoting at length here:
Authorities are abundant for the proposition that a municipal corporation, being the state's representative, may ordinarily vacate, discontinue, or abandon its easement in a street or part thereof, whenever, by its proper board, found to be unnecessary for public use.
This rule appears to enjoy universal acceptance in this country and has been stated by this Court on numerous occasions. [Citations omitted]
In the absence of an allegation of fraud or a manifest abuse of discretion, courts will not inquire into the motives of municipalities for vacating a municipal street.
Citing 25 Am.Jur., Highways, Section 29, at page 418, the Court continued:
The question of the necessity for closing a street or highway, as distinguished from the question of public purpose or use, belongs exclusively to the legislative department of the government. So, the province of the public authorities in whom the power to vacate is vested to determine when it shall be exercised, and their action in this regard will not be reviewed by the courts in the absence of fraud or a manifest abuse of discretion. The court cannot control or revise such decision on the ground of inexpediency, injustice, or impropriety.
Ordinarily, the presumption is that a street or highway was vacated in the interest of the public and that its vacation was necessary for public purposes, and the burden of showing to the contrary will be upon the persons objecting to the proceedings.
The same court built on those principles in Cash & Carry Lumber Company, Inc. v. P.R. Olgiati et al. 385 S.W.2d 115 (1964), in which the City of Chattanooga closed one block of a city street. The property upon which the street lay reverted to an abutting stove works which apparently was using the street for storage and other purposes. The chancellor denied Cash and Carry Lumber Company's petition for an injunction prohibiting the city from closing the street. In upholding the chancellor, the Court relied on Sweetwater, declaring that the plaintiff did not allege facts sufficient to make out a case of fraud. "None of the officials here involved," said the Court, "have been charged in the bill with acts showing falsity, concealment, deceit, or perversion of the truth."
Nor did the facts show a manifest abuse of discretion. The strongest allegations along that line were that the stove works had created hazardous conditions in the street before its closing by the city.
Then the Court turned to the issue of inconvenience suffered by the plaintiffs by the closing of the street:
To reach complainant's property, it is apparent that some inconvenience will be sacrificed. No longer will complainant have a direct access of a distance of two blocks south to Main Street. Instead, travelers will be forced to go over one block east or west and then down, increasing the distance to Main Street at most one block. However, there is no allegation that reasonable egress and ingress will be destroyed. [Emphasis is mine]
The Court also distinguished Wilkey by explaining why an injunction against the closing of the railroad crossing in that case was an aberration:
Wilkey [remainder of citation omitted], cited by appellants for the proposition that no remedy at law exists is readily distinguishable and is not controlling. In the Wilkey case, the municipal government had failed to close the grade crossing by ordinance, and the Court of Appeals held that there had been no exercise of eminent domain, and that no damages would be recoverable; therefore; and injunction was the proper remedy. [Emphasis is mine]
In the instant case, the property municipal authority has by ordinance abandoned the street in question. If complainants's property has thereby been taken, the remedy is at law with an action for compensation. [Citing Sweetwater]
It is difficult to argue that it is not in the public interest to close the crossing. That interest is the promotion of the overall public safety, not only with respect to the crossing being closed, but with respect to the signalization of the remaining crossings within the city. It would probably be extremely difficult for property owners A, B, C, and D to make a case that the closing of the crossing was motivated by fraud or predicated on a manifest abuse of discretion within the meaning of Sweetwater and Olgiati.
But most of the cases cited above also clearly stand for the proposition that while a municipality has an almost unfettered right to close a street, the closing may be a compensable taking of property. [In particular see Cash & Carry Lumber Company, at 118]
Abutting land owners have two distinct kinds of rights in a street: "a public right which he enjoys in common with all other citizens," and "certain private rights which arise from his ownership of property contiguous to the highway, which are not common to the public generally..." [Jacoway] If a city takes the latter right, it is a compensable taking.
However, minor inconvenience accruing to abutting property owners upon the closing of a street does not necessarily amount to a compensable taking. Under Cash & Carry Lumber Company, there had to be an allegation that "reasonable egress and ingress would be destroyed." Under Sweetwater, "It is well settled that the destruction or serious impairment of a landowner's right of ingress an egress is a taking of property for which compensation must be paid." [Citations omitted] It was also said in Martin v. State Dept of Transportation, 705 S.W.2d 130 (Tenn. Ct. App. 1985) that:
Of course, the property owners fronting upon a public thoroughfare have a right to free and convenient access thereto. This right of ingress and egress attached to the land. It is a property right, as complete as ownership of the land itself. But when we come to damages claimed by reason of the change in the flow of traffic, making a street a four-lane highway or diverting the traffic one way or the other, this comes from the exercise of the police power of the governing parties and such damages as result to one are noncompensable, as they are an incidental right resulting from a lawful act.
I have only the map by which to determine whether property owners A, B, C, and D suffer an unreasonable damage to their ingress and egress. But it is clear from that map that abutting property owners A and B may suffer minor inconvenience in getting to the street, none to the boulevard; that abutting property owners C and D may suffer similar inconvenience getting to the boulevard, but none to the street; and that property owners A, B, C and D all have access to the road and to an adjoining street. In short, all of them have access to the roads they had before the closing of the grade crossing, and all have access to other streets. In that respect, they appear to have lost little except perhaps minor inconvenience.
But I cannot calculate from the map the distances related to the inconvenience suffered by property owners A, B, C and D in the closing of the railroad crossing. The city should look at those distances closely to determine whether in fact the inconvenience is minor. Even the Jacoway Court said that:
While we agree with the foregoing quotation where property lies within a city and the inconvenience in traveling one way to be able to turn and go in the other is generally only a matter of a few hundred yards, we doubt the same reasoning would be applicable in a county setting where it might be necessary if a road is made one way to travel several miles before being able to turn.
How much inconvenience will trigger a compensable taking is not clear.
A final point relative to your street closing ordinance. I advise you to incorporate by reference into the ordinance the map you sent to me. It makes it abundantly clear the points of the closing of the street.
Sidney D. Hemsley
Senior Law Consultant