Dear Reader:
The following document was created from the MTAS electronic library known as MORe (www.mtas.tennessee.edu/more). This online library is maintained daily by MTAS staff and seeks to represent the most current information regarding issues relative to Tennessee municipal government.
We hope this information will be useful to you; reference to it will assist you with many of the questions that will arise in your tenure with municipal government. However, the Tennessee Code Annotated and other relevant laws or regulations should always be consulted before any action is taken based upon the contents of this document.
Please feel free to contact us if you have questions or comments regarding this information or any other MORe material.
Sincerely,
The University of Tennessee
Municipal Technical Advisory Service
1610 University Avenue
Knoxville, TN 37921-6741
865-974-0411 phone
865-974-0423 fax
www.mtas.tennessee.edu
It has been held that both public and private utilities can use municipal streets to install and maintain their infrastructure without the permission of, or payment to, the fee owner of the street. [See Frazier v. East Tennessee Telephone Co., 90 S.W.620 (1900); Johnson v. Chattanooga, 191 S.W.2d 175 (1945); Pack v. Southern Bell Telephone & Telegraph Company, 319 S.W.2d 90 (1958).] The reason is exemplified in Pack v. Southern Bell Telephone & Telegraph, above, in which the Court, citing a multitude of cases from both Tennessee and other states, said
Since 1905 under the holding in Frazier v. East Tennessee Tel. Co., 115 Tenn. 416, 90 S.W. 620, 3 L.R.A., N.S, 323, Tennessee has been committed to the view that the use of public rights-of-way by utilities for locating their facilities is a proper highway use subject to their principal purpose as travel and transportation of persons and property.... [At 792].
Generally, while public utilities have the right to use municipal streets, that right is always subordinate to the principal purpose of the streets, which is obviously travel. For that reason, where street improvements necessitate it, utilities can be made to remove their facilities from the public streets. Tennessee follows the common law rule that in the absence of a statute providing otherwise, public utilities must remove their facilities at their own expense [Pack v. Southern Bell Tel. & Tel. Co., 387 S.W.2d 789 (1965); State v. Southern Bell Tel. & Tel. Co., 319 S.W.2d 90 (1958) (cert. denied by U.S. Supreme Court, Memphis Transit Co v. Tennessee ex rel Leech, 359 U.S. 1011 (1959)); Bristol Tenn. Housing Authority v. Bristol Gas Corp., 407 S.W.2d 681 (1966); Metropolitan Development and Housing Agency v. South Central Bell Telephone Co., 562 S.W.2d 438 (Tenn. App. 1978)].
T.C.A. §§ 54-5-804 et seq. provides for the state's payment of the costs of utility relocation with respect to "public highways." The definition of "public highway" within the meaning of that statute is a state highway forming part of the state highway or interstate system, and includes municipal streets that are part of those systems. T.C.A. § 54-5-802(5). Eligibility for utility relocation reimbursement under T.C.A. § 54-5-804 hinges on the utility's compliance with certain provisions of that statute and of T.C.A. § 54-5-854, the latter of which generally relates to the timely removal of the utility's infrastructure. In addition, reimbursement is conditioned upon the costs of that statute being funded and appropriated by the General Assembly.
T.C.A. § 54-22-101, also creates a presumptive right-of-way width under certain conditions "[w]herever the state proposes to improve a section of an existing two (2) lane undivided public road [Emphasis mine]. In addition, that statute provides that the state is responsible for the relocation of both above ground and underground utilities located entirely within that presumptive right of way. However, T.C.A. § 1-3-105 defines the terms used in the T.C.A. The word "Road" "includes public bridges and may be held equivalent to the words ‘county way,’ ‘county road,’ or ‘state road’ [Subsection (27)]. For that reason, that statute probably does not apply to municipal streets. Nothing in the context of T.C.A. § 54-22-101 indicates that "public road" includes a municipal street. Indeed, an unsuccessful attempt was made several years ago to amend that statute to add municipal streets to its coverage.
DISCLAIMER: The letters and publications written by the MTAS consultants were written based upon the law at the time and/or a specific sets of facts. The laws referenced in the letters and publications may have changed and/or the technical advice provided may not be applicable to your city or circumstances. Always consult with your city attorney or an MTAS consultant before taking any action based on information contained in this website.
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