Page 19 - Mar-Apr2023 Vol40 No7

FROM MTAS EXPERIENCE

Who is Who? Example 1:

In this example, the property owner had “piped” the street side ditch in front of their property
seeking to make mowing easier. The backfill on top of the property owner’s pipe’s was causing
water, that normally would have been intercepted by the side ditch, to run onto the street from
said property, causing maintenance and safety issues.

From: Sid Hemsley, MTAS Senior Law Consultant

Regarding: 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.
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. …
… 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.]
…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.

View online at tnpublicworks.com 19