Page 20 - Mar-Apr2023 Vol40 No7

FROM MTAS EXPERIENCE

The City’s Role: Example 2:

Dear Mayor ______,

Yesterday you asked me … (about)…a citizen drainage complaint. The cul de sac on Devonne was
constructed by a private developer some 30 years ago so as to drain across some undeveloped property
and thence down the common property line of two lots on Gay Street to the gutter on Gay Street. The
citizen was complaining about the drainage from the cul de sac crossing the undeveloped piece of
property. This is not the doing or the responsibility of the City.

Pursuant to our discussion yesterday about the City doing drainage work on private property, I wanted to
share a legal opinion prepared by Mr. Dennis Huffer, an MTAS Legal Consultant:
“... It is my understanding that the city did not cause the problems that are proposed to be addressed and
that the general public will derive little or no benefit from the city doing the work. In my opinion this would
be a questionable use of public resources.”
Article II, § 29, of the Tennessee Constitution provides that “The General Assembly shall have power
to authorize the several counties and incorporated towns in this State, to impose taxes for County and
Corporation purposes, respectively....”
From this language has grown the public purpose doctrine, which dictates that public funds can be
used only for public purposes. Courts have reasoned that, since taxes can be levied for only corporation
or public purposes, expenditures can legally be made for only those same purposes. A public purpose
is generally anything that promotes the public health, safety, welfare, morals, security, prosperity, or
contentment of the residents of the municipality. Shelby Co. v. The Exposition Company, 96 Tenn. 653, 36
S.W. 696(1896). Incidental benefit to an individual or individuals will not invalidate an expenditure, but its
primary purpose must be to benefit the public. City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d
602 (1969).
From information that has been provided to me, it appears the primary purpose of the expenditure of
public resources in the case at hand would be for the private benefit of the property owners and not for the
general public. Any benefit to the general public would be remote at best. Therefore, it is my opinion that
this expenditure would be held invalid if challenged. ...”
Sidney Hemsley, MTAS Senior Legal Consultant, wrote the following:
“... Storm water drainage in Tennessee is governed by the natural flow rule. Under the natural flow rule, the
lower property owner is required to accept the water that would naturally flow from the upper landowner;
he is not liable for any damages that arises from that natural flow.” [Slatten v. Mitchell, 124 S.W.2d 310
(1938); Dixon v. Nashville, 203 S.W.2d 178 (1976); Miller v. City of Brentwood, 548 S.W.2d 878 (1977);
Butts v. City of South Fulton, 565 S.W.2d 879 (Tenn. App. 1978); Yates v. Metropolitan Gov., Nashville &
Davidson County, 451 S.W.2d 437 (1969).]
[Slatten v. Mitchell, 124 S.W.2d 310 (1938); Dixon v. Nashville, 203 S.W.2d 178 (1976); Miller v. City of
Brentwood, 548 S.W.2d 878 (1977); Butts v. City of South Fulton, 565 S.W.2d 879 (Tenn. App. 1978);
Yates v. Metropolitan Gov., Nashville & Davidson County, 451 S.W.2d 437 (1969).]
...The point of Miller’s with respect to the property owners …is that simply because a private landowner
suffers damage from drainage that violates the natural flow rule, the city is not liable for damage for which
it was not the cause. ...”

20 TPW March/April 2023