Who maintains the one-mile access road to the Narrows of the Harpeth in a Tennessee state park, the state or Cheatham County?

Subject

Opinion No. 15-49, Maintenance Obligation with Respect to a Public Access Road, June 8, 2015

Plain-English summary

A Tennessee state representative asked who is on the hook for maintaining the one-mile road that provides public access to the Narrows of the Harpeth, a site inside the Harpeth River State Park in Cheatham County. The AG could not give a definitive answer, because the answer depends on whether the road is legally a "county road." If it is, Cheatham County maintains it. If it is not, the state maintains it, and within the state, by a 1983 executive order, the Tennessee Department of Transportation (not the Tennessee Department of Environment and Conservation, the agency that runs the park) handles roads inside state parks.

Whether a road is a county road turns on a multi-factor inquiry: was the land dedicated to public use, and did the county accept the dedication? Dedication and acceptance can be express or implied. Implied dedication looks at the landowner's intent (opening the road to public travel, acquiescence over time, public use), and acceptance can be shown either by formal county action or by ordinary public use. Many factors feed in: county maintenance history, inclusion on a county road list, county-built signs or bridges, public resolutions, paving, deed descriptions, historical maps, school bus and mail carrier observation, and continuous public use over years. Abandonment can extinguish a county road, but only on a strong showing of intent to abandon.

Because all of these are factual questions outside what the AG's office can determine, the office declined to take a position on the Narrows road specifically.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the road in question?

The one-mile road that provides public access to the Narrows of the Harpeth, a popular recreation site in Cheatham County. The road sits within Harpeth River State Park, managed by the Tennessee Department of Environment and Conservation (TDEC).

Why couldn't the AG just say "TDEC owns the park, so TDEC owns the road"?

Because of a 1983 executive order. In 1983, Governor Lamar Alexander issued Executive Order 39 transferring maintenance responsibility for roads and parking areas inside state parks from TDEC to the Tennessee Department of Transportation (TDOT). So if the state is responsible, the responsible agency is TDOT, not TDEC. But even then, a 2000 AG opinion (Op. 00-100) had concluded that Executive Order 39 does not cover county roads inside state parks. Counties remain responsible for county roads.

How can a road inside a state park be a "county road"?

Through history. The county may have accepted a dedicated public road long before the state acquired the surrounding land. When the state acquires the underlying land, it takes the land subject to the existing public road easement. The county's maintenance obligation does not disappear just because the land underneath now belongs to the state.

What evidence would settle whether the Narrows road is a county road?

Whatever counts on the multi-factor test: when was the road opened, who paid for paving, was it ever on the county road list, did the county pay for bridges or signs, did the public use it as a thoroughfare or only as a destination, do old maps show it, are there old deeds referencing it. None of these is dispositive; all of them are evidence.

What if a road is "of unknown jurisdiction"?

The same fact-specific inquiry applies. The AG declined to opine in the abstract because there is no shortcut. Counties or state agencies in this situation should compile the documentary and testimony evidence and consult counsel.

Background and statutory framework

The Tennessee Department of Environment and Conservation manages state parks under Tenn. Code Ann. §§ 11-3-103(a), 11-3-106. Executive Order 39 (1983) transferred maintenance of state park roads and parking areas from TDEC to TDOT. Tenn. Att'y Gen. Op. 00-100 (May 24, 2000), held that Executive Order 39 does not displace county responsibility for county roads inside state parks. Graham v. Bradley Cnty., 2013 WL 5234240 (Tenn. Ct. App. Sept. 17, 2013), and Baker v. Seal, 694 S.W.2d 948 (Tenn. Ct. App. 1984), confirm that counties maintain their own roads.

Whether a road is a county road turns on dedication and acceptance, both of which can be express or implied. Rainwater v. Sumner Cnty., 342 S.W.3d 500, 503 (Tenn. Ct. App. 2010); Webb v. Douglas, 2014 WL 6908296 (Tenn. Ct. App. Oct. 22, 2014) (road need not appear on county road list to be a county road). Rogers v. Sain, 679 S.W.2d 450 (Tenn. Ct. App. 1984), lays out the implied-dedication factors. State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946, 949 (Tenn. 1984), confirms acceptance can be shown through formal action or common public use. Courts have considered many factors, including county maintenance, road-list inclusion, signs, bridges, public resolutions, paving, utility infrastructure, deed descriptions, historical maps, tax treatment, plats, driveway connections, school bus and mail carrier observation, and continuous public use. McCord v. Hays, 302 S.W.2d 331 (Tenn. 1957); West Meade Homeowners Ass'n v. WPMC, Inc., 788 S.W.2d 365 (Tenn. Ct. App. 1989); Brandy Hill Estates, LLC v. Reeves, 237 S.W.3d 307 (Tenn. Ct. App. 2006); Smith v. Black, 547 S.W.2d 947 (Tenn. Ct. App. 1976); Lay v. Wallace, 2013 WL 654360 (Tenn. Ct. App. Feb. 21, 2013).

Abandonment requires "clear and unequivocal evidence of decisive and conclusive acts" showing intent to abandon. Jacoway v. Palmer, 753 S.W.2d 675, 679 (Tenn. Ct. App. 1987). Mere failure to maintain or exclusion from the county road list is not enough. Shelco Corp. v. Barker, 1996 WL 438877 (Tenn. Ct. App. July 30, 1996); Ty Farming Co. v. Belew, 1996 WL 649173 (Tenn. Ct. App. Nov. 8, 1996).

Citations

• Tenn. Code Ann. §§ 11-3-103(a), 11-3-106 (TDEC state park authority)
• Executive Order 39 (1983) (state park road maintenance assigned to TDOT)
• Tenn. Att'y Gen. Op. 00-100 (May 24, 2000) (county roads inside state parks)
• Graham v. Bradley Cnty., 2013 WL 5234240 (Tenn. Ct. App. Sept. 17, 2013)
• Baker v. Seal, 694 S.W.2d 948 (Tenn. Ct. App. 1984)
• Webb v. Douglas, 2014 WL 6908296 (Tenn. Ct. App. Oct. 22, 2014)
• Rainwater v. Sumner Cnty., 342 S.W.3d 500 (Tenn. Ct. App. 2010)
• Rogers v. Sain, 679 S.W.2d 450 (Tenn. Ct. App. 1984)
• State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946 (Tenn. 1984)
• Ellis v. Brabson, 42 S.W. 438 (Tenn. 1897)
• Hughes v. Barbee, 2013 WL 1441994 (Tenn. Ct. App. Apr. 9, 2013)
• McCord v. Hays, 302 S.W.2d 331 (Tenn. 1957)
• West Meade Homeowners Ass'n v. WPMC, Inc., 788 S.W.2d 365 (Tenn. Ct. App. 1989)
• Brandy Hill Estates, LLC v. Reeves, 237 S.W.3d 307 (Tenn. Ct. App. 2006)
• Smith v. Black, 547 S.W.2d 947 (Tenn. Ct. App. 1976)
• Lay v. Wallace, 2013 WL 654360 (Tenn. Ct. App. Feb. 21, 2013)
• Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1987)
• Ty Farming Co. v. Belew, 1996 WL 649173 (Tenn. Ct. App. Nov. 8, 1996)
• Shelco Corp. v. Barker, 1996 WL 438877 (Tenn. Ct. App. July 30, 1996)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-49.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 8, 2015
Opinion No. 15-49
Maintenance Obligation with Respect to a Public Access Road

Question 1

Is the State of Tennessee or is Cheatham County responsible for the maintenance of the Narrows of the Harpeth Road, the one-mile road in the Harpeth River State Park that provides public access to the Narrows of the Harpeth site?

Opinion 1

This Office cannot opine on the maintenance responsibility for Narrows of the Harpeth Road because the answer depends on facts unavailable to this Office.

Question 2

If the answer to Question 1 is that the State is responsible for the maintenance of the road, which agency of the State government, the Tennessee Department of Environment and Conservation or the Tennessee Department of Transportation, is responsible for the maintenance obligation?

Opinion 2

Assuming—but not opining—that the State were responsible for the maintenance of the road, then, that maintenance responsibility would lie with the Tennessee Department of Transportation.

ANALYSIS

The Tennessee Department of Environment and Conservation (TDEC) manages state parks, including the Harpeth River State Park in Cheatham County. See Tenn. Code Ann. §§ 11-3-103(a), 11-3-106 (charging TDEC with improving, caring for, supervising, and administering state parks). In 1983, maintenance responsibility for roads and parking areas inside state parks was transferred by executive order to the Tennessee Department of Transportation (TDOT). Exec. Order No. 39 (1983). But this Office has previously opined that the executive order does not apply to county roads inside state parks. See Tenn. Att'y Gen. Op. 00-100 (May 24, 2000). Instead, county roads are maintained by the counties. See Graham v. Bradley Cnty., No. E2012-02369-COA-R3-CV, 2013 WL 5234240, at *7 (Tenn. Ct. App. Sept. 17, 2013); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn. Ct. App. 1984).

Thus, if the road in question is a county road, Cheatham County bears maintenance responsibility. If it is not a county road, then the State would be responsible for its maintenance and, pursuant to Executive Order 39, TDOT would be the state agency charged with maintaining the road.

Whether a road is a county road is a question of fact to be determined based on the facts of each particular case and evaluated in light of the totality of the circumstances. The inquiry is not only highly fact-specific, but involves consideration of many factors. We note, too, that the facts relevant to the determination may, in some cases, be in dispute.

A road need not be listed on the county's road list to be a county road. Webb v. Douglas, No. W2014-00299-COA-R3-CV, 2014 WL 6908296, at *6 (Tenn. Ct. App. Oct. 22, 2014). A road is a county road if, prior to the State's acquisition,[1] the owners of the land on which the road sits dedicated the land to public use and the county accepted the dedication. Rainwater v. Sumner Cnty., 342 S.W.3d 500, 503 (Tenn. Ct. App. 2010). Dedication and acceptance can be express or implied. Id.

For implied dedication, the inquiry focuses on "whether the landowner intended to dedicate the land to public use." Rogers v. Sain, 679 S.W.2d 450, 453 (Tenn. Ct. App. 1984). Among the factors showing an intent to dedicate are: "The landowner opens a road to public travel, acquiescence in the use of the road as a public road; and the fact that the public has used the road for an extended period of time." Id. (internal citations omitted). "While dedication is not dependent on duration of the use, extended use is a circumstance tending to show an intent to dedicate." Id. "Finally, an intent to dedicate is inferable when the roadway is repaired and maintained by the public." Id. Acceptance may be shown by formal act by public authorities or by "common use by the general public." State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946, 949 (Tenn. 1984).

Whether a road has been dedicated and accepted is, again, highly fact-dependent. See Ellis v. Brabson, 42 S.W. 438, 439 (Tenn. 1897); Hughes v. Barbee, No. E2012-01330-COA-R3-CV, 2013 WL 1441994, at 7 (Tenn. Ct. App. Apr. 9, 2013) (deferring to the trial court's credibility determination in reference to witnesses who observed public use of a road). For example, courts have considered, inter alia, county maintenance of the road, Rainwater, 342 S.W.3d at 505, inclusion in the county's road list, id., county erection of road signs or bridges, id., public resolutions referencing the road, id., paving of the road, McCord v. Hays, 302 S.W.2d 331, 335 (Tenn. 1957), construction of utility poles and storm sewers, id.; West Meade Homeowners Ass'n v. WPMC, Inc., 788 S.W.2d 365, 366 (Tenn. Ct. App. 1989), deed descriptions referencing the road, McCord, 302 S.W.2d at 334, deeds of conveyance, see Brandy Hill Estates, LLC v. Reeves, 237 S.W.3d 307, 320 (Tenn. Ct. App. 2006), historical county and state maps, Rainwater, 342 S.W.3d at 505, tax maps, id., tax assessments for the land on which the road sits, id., maps or plats referenced when the land is sold, Smith v. Black, 547 S.W.2d 947, 951 (Tenn. Ct. App. 1976), driveway connections, Lay v. Wallace, No. W2011-02285-COA-R3-CV, 2013 WL 654360, at 11 (Tenn. Ct. App. Feb. 21, 2013), existence of obstructions, id., observations of passing school buses and mail carriers, id.; Webb, 2014 WL 6908296 at *7, pedestrian traffic, Matthews, 679 S.W.2d at 949, and continuous public use, id.

These factors focus on the time when the road was dedicated and accepted, often requiring testimony from witnesses who lived near the road in the past when it was established or documentary evidence dating back decades. See, e.g., Lay, 2013 WL 654360, at *3 (a 2013 decision considering testimony from witnesses who lived near the road in the 1940s); Matthews, 679 S.W.2d at 949 (a 1984 decision referencing maps from 1889, 1908, and 1928).

Determination of dedication and acceptance does not end the inquiry. Maintenance responsibility ceases upon abandonment of the road. See Ty Farming Co. v. Belew, No. 93-285, 1996 WL 649173, at 4 (Tenn. Ct. App. Nov. 8, 1996). A road is not abandoned merely due to a county's failure to maintain the road or a county's exclusion of the road from its road list. See Shelco Corp. v. Barker, No. 03A01-9509-CH-00317, 1996 WL 438877, at 1-2 (Tenn. Ct. App. July 30, 1996). Rather, abandonment requires "clear and unequivocal evidence of decisive and conclusive acts. . . . [T]here must be some positive showing of an intention to abandon." Jacoway v. Palmer, 753 S.W.2d 675, 679 (Tenn. Ct. App. 1987). Like dedication and acceptance, abandonment is highly fact-specific.

In sum, the question of maintenance responsibility for the Narrows of the Harpeth Road requires a threshold determination of whether the road is a county road. This Office cannot opine on that threshold determination, however, because the determination is entirely dependent on facts that are unavailable to this Office and that may be contested. Since this Office cannot make the threshold determination of whether the road is a county road, it cannot provide an opinion as to whether the County or the State is responsible for maintaining the Narrows of the Harpeth Road. But, were this Office able to opine that the State has maintenance responsibility, it would follow that TDOT would be the state agency charged with that responsibility.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JORDAN SCOTT
Assistant Attorney General

Requested by:
The Honorable Mary Littleton
State Representative
104 War Memorial Building
Nashville, Tennessee 37243

[1] See Tenn. Att'y Gen. Op. 00-100 (May 24, 2000) (opining that a county cannot assume control of roads in state parks that are already under state control).