October 31, 2002
Dear Sir:
I read your letter relative to the ownership of the sidewalks in the City. Although you did
not ask for a reply, I feel it necessary to make one. I do it with an attitude of respect both for
your position and experience, but I feel obligated to point out how relatively easy it is for a
street, alley or sidewalk to become a city street, alley or sidewalk. In that connection, I am
attaching a “treatise” on that subject, which will become an MTAS publication when I can find
the time to finish it.
Apparently the letter that I wrote on September 3, 1998, which you refer as not being
applicable to your City, is one I wrote to Judy Housley in the City of Friendsville. In that letter I
opined that the City of Friendsville undoubtedly owned its sidewalks. I did not base that
conclusion on any documents in the city’s possession; in fact, I did not even look for such
documents. The fact is that there is rarely any conclusive documentation supporting the
ownership of a city’s streets or sidewalks, especially in its older parts. I based my conclusion on
personal knowledge--numerous trips I had made to the City of Friendsville over many years. I
knew from those trips that the sidewalks in the city were open to, and used by the public, and had
been open to, and used by the public, for many years without objection on the part of abutting
property owners. In that case the sidewalks had become public sidewalks by user, and probably
by prescription.
I am not personally acquainted with the sidewalks in your City, but to the extent there are
sidewalks in the city open to and used by the public, I suspect there is a good prospect that many
(if not most) of them are also city sidewalks, if for no other reason than that they are treated by
the public, including abutting property owners, as city sidewalks. For example, I suspect that
walkers, joggers and bicyclers use them regularly both in and outside their own neighborhoods,
that school children use them to walk to and from school, that police and firemen use them to
gain access to property, that delivery men use them to deliver products and services to property
owners (I do not know if there are any walking mail routes in your City, but if there are, mailmen
probably use them to deliver mail). I also suspect that few, if any, property owners or occupants
of property who have sidewalks abutting their property treat them as if they have a right to
prevent or restrict public travel on them, or even imagine that they have the right to prevent or
restrict public travel on them. I suspect that in the case of any subdivisions in the city that
contain sidewalks, at least some of them have been dedicated to, and accepted by, the city, if not
formally, then informally by public use.
Your letter says that the city has spent very little on sidewalk maintenance over the years,
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Page 2
and then apparently only with respect to some downtown sidewalks. In fact, the last paragraph of
your letter says:
It would be our position, and I think that the Pool’s position (I am
also attorney for the Pool) that unless you can show that the
sidewalk was conveyed to the City and/or the City actively
participated in annually repairing and improving said sidewalk, the
City takes the position that the owner owns said sidewalk and is
responsible for any liability. (See TCA 29-20-203, “owned” and
“controlled” by such governmental entity).
That may indeed be the position of you and the Pool, but while “conveyance” of a
sidewalk to the city and its maintenance by the city, are certainly indications of a city’s
ownership of a sidewalk or street, they are not necessarily essential indications. I point
specifically to State ex rel. Matthews v. Metro Government of Nashville, 679 S.W.2d 946 (Tenn.
1984), which I cover at some length on pages 4-5 of the attachment. There it was held that
Printer’s Alley was a city alley notwithstanding the fact that there was no proof that it was ever
conveyed to, or maintained by, the Metropolitan Government.
Let me momentarily assume that the City does own at least some of its sidewalks and turn
to the issue of their control. Even if for some reason a city does not exercise “control” over the
sidewalks, it may still have legal control over them. In at least two places, the Municipal Code
regulates sidewalks: Title 12, Chapter 2, and ' 9-504. Title 12, Chapter 2 contains a number of
such regulations. In particular, '12-201 makes it an offense to obstruct a “public street, alley or
sidewalk ...for the purpose of storing, selling or exhibiting any goods, wares, merchandise or
materials.” Section 12-105 provides that where a sidewalk is blocked for arising from a cut or
excavation, “...a temporary sidewalk shall be constructed and provided which shall be safe for
travel and convenient for users.” Section 12-202 prohibits tress projecting over sidewalks. Gates
or doors cannot project over sidewalks under '12-206. In '12-207, it is unlawful to litter
streets, alleys and sidewalks, or to place materials on them “which obstruct or tend to limit or
interfere with the use of such public ways and places for their intended purposes.” Persons who
wish to construct a private driveway over “any drainage ditch, water line, or any curb or gutter or
sidewalk within the city” must make application to the city manager. Occupants of property
abutting sidewalks must keep them clean under '12-209. Section 12-210(6) makes it illegal for
Aany person, firm or corporation “to hold or conduct a parade upon the sidewalks of the city.”
Finally, it is illegal under ' 12-212 for “any person to ride, lead, or tie any animal or ride, push,
pull or place any vehicle across or upon any sidewalk in such a manner as to unreasonably
interfere with or inconvenience pedestrians using the sidewalk...” Section 9-504 of the
Municipal Code also prohibits parking on the sidewalk.
With the exception noted, those provisions do not distinguish between public and non-
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Page 3
public sidewalks. But most of those regulations appear to be designed to facilitate the public use
of the sidewalks that are generally open to, and used by, the public. Those regulations seem to
me to point to an intention on the part of the city that such sidewalks are city sidewalks, even if
the city does not maintain them. In that respect, the city’s legal control of the sidewalks may
itself an indication of their ownership by the city.
In State ex. rel. Matthews, above, a writ of mandamus was upheld that required the
Nashville Metropolitan government city to prohibit the obstruction of Printer’s Alley by a certain
bank. That case points to the legal obligation of a city to control its streets and sidewalks. Other
cases stand for the same proposition. [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 (1920)]. Moreover, Baker v. Seal, 694 S.W.2d 948 (Tenn. App.
1984), clearly indicates that a local government is liable under the Tennessee Tort Liability Act
for damages and injuries arising from the failure of the government to properly maintain its
streets.
I certainly acknowledge your experience as a long-time city and real estate attorney. The
only thing I am trying to do here is point out that you may be short-changing some of the
methods by which streets and sidewalks become city streets and sidewalks, that for the purposes
of the Tennessee Tort Liability Act, the city might own some of the sidewalks it does not think it
owns, that it may control such sidewalks even though it might not maintain them, and that it may
have a legal duty to maintain such sidewalks.
Of course you may conclude that none of the law in the attachment applies to any of the
sidewalks in the city, or to only those downtown, or in any combination of sidewalks that seems
suitable to you.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/