Who maintains county roads that pass through Tennessee state forests, the Tennessee Department of Agriculture or the county?

Subject

Opinion No. 15-50, Jurisdiction and Maintenance of County Roads in State Forests, June 8, 2015

Plain-English summary

This opinion came from the Commissioner of Agriculture asking essentially the same question as 15-49 (state parks), but for state forests. Who maintains county roads inside state forests? The AG said: the county. Acquiring land for a state forest does not erase a pre-existing county road easement. If the road was a county road before the state acquired the surrounding land, it is still a county road after, and the county is still responsible for maintaining it. The Tennessee Department of Agriculture, through its Division of Forestry, can build and maintain its own forest roads to support forestry purposes, but it is not on the hook for county roads that happen to pass through state forest land.

For roads of "unknown jurisdiction" inside state forests, the AG declined to opine, because the analysis is fact-specific. For roads whose maintenance has been abandoned in practice (someone stopped fixing them), the AG drew an important distinction: a road can have abandoned maintenance without being legally abandoned. Legal abandonment requires "clear and unequivocal evidence of decisive and conclusive acts" showing intent to abandon. Until that showing is made, the original responsible party (the county for county roads, the Department for forest roads) keeps the duty.

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

Why ask the same question for forests that was just asked for parks?

State forests and state parks are managed by different agencies (Department of Agriculture vs. TDEC), and the executive order assigning state park roads to TDOT does not address state forest roads. So the commissioner asked the AG to confirm the analogous answer: the Department of Agriculture is not responsible for county roads inside forests, just like TDEC isn't responsible for county roads inside parks.

What's the legal mechanism that keeps the road a "county road" after the state acquires the surrounding land?

The public road easement survives the conveyance. When a county accepts a dedicated road, the county holds an easement in trust for the public, and the underlying fee owner takes their land "burdened with the rights of the general public to use the land as a public road until such time as it is closed by public authority." So the state acquires the forest land subject to that public easement, and the county's maintenance duty travels with the easement.

What is "abandoned maintenance" and why does it not equal abandonment?

"Abandoned maintenance" describes the practical state of a road that no longer gets repaired or upkeep. Legal abandonment is a much stricter concept: it requires affirmative, decisive acts showing intent to abandon. Merely failing to maintain a road, even for years, even combined with removing it from the county road list, is not enough. Until legal abandonment occurs, the road is still a public road and the responsible entity still owes maintenance.

Can the Department of Agriculture refuse to fix a county road inside a state forest?

Yes. The Department's mandate is to maintain its own forest roads. County roads remain the county's responsibility even after the state acquires the surrounding forest land.

What about state parks? Is the rule different there?

In state parks, Executive Order 39 (1983) assigned TDEC's road maintenance duties to TDOT. So if a state-maintained road runs through a park, TDOT maintains it. County roads through state parks are still the county's. Opinion 15-49 walks through the same analysis for state parks.

Background and statutory framework

State forests are state-administered lands held by the Department of Agriculture, through its Division of Forestry, under Tenn. Code Ann. §§ 11-4-401 and 11-4-801 (acquisition authority), § 11-4-404 (improvement and care), and § 11-4-103(11) (multiple-use management). Within that authority, the Department can build and maintain a system of forest roads.

Counties are responsible for their own roads. Tenn. Code Ann. § 54-7-109(a); Graham v. Bradley Cnty., 2013 WL 5234240 (Tenn. Ct. App. Sept. 17, 2013); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn. Ct. App. 1984). Whether a road is a county road depends on dedication and acceptance, State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946, 948 (Tenn. 1984), an inquiry that turns on multiple factors including county-funded construction, road-list inclusion, and so on.

When a county accepts a road as public, the county holds an easement in trust for the public, with a duty to maintain. Jacoway v. Palmer, 753 S.W.2d 675, 677 (Tenn. Ct. App. 1987); State ex rel. Kessel v. Ashe, 888 S.W.2d 430, 433 (Tenn. 1994); Vinson v. Nashville, C. & St. L. Ry., 321 S.W.2d 841, 844 (Tenn. 1958). A later acquirer of the underlying land takes subject to that public easement.

Abandonment of a public road requires "clear and unequivocal evidence of decisive and conclusive acts" showing intent to abandon. Jacoway, 753 S.W.2d at 679. Failing to maintain is not enough. Shelco Corp. v. Barker, 1996 WL 438877 (Tenn. Ct. App. July 30, 1996); Cockroft v. Claunch, 1992 WL 69621 (Tenn. Ct. App. Apr. 8, 1992).

Citations

• Tenn. Code Ann. §§ 11-4-401, 11-4-404, 11-4-801, 11-4-804 (Department of Agriculture forestry authority)
• Tenn. Code Ann. § 11-4-103(7), (11) (multiple-use management definitions)
• Tenn. Code Ann. § 54-7-109(a) (county road maintenance)
• 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)
• State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946 (Tenn. 1984)
• Jacoway v. Palmer, 753 S.W.2d 675 (Tenn. Ct. App. 1987)
• State ex rel. Kessel v. Ashe, 888 S.W.2d 430 (Tenn. 1994)
• Vinson v. Nashville, C. & St. L. Ry., 321 S.W.2d 841 (Tenn. 1958)
• 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)
• Tenn. Att'y Gen. Op. 00-100 (May 24, 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2015/op15-50.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
June 8, 2015
Opinion No. 15-50
Jurisdiction and Maintenance of County Roads in State Forests

Question 1

Is the Tennessee Department of Agriculture responsible for the maintenance and repair of county road segments located within state forests that have been established and constructed by the county government and/or have been included on the county's road list?

Opinion 1

No.

Question 2

If the answer to Question 1 is "yes" then what property rights or responsibilities, if any, does the county retain in a county road segment located in a state forest?

Opinion 2

Because the answer to Question 1 is "no," Question 2 requires no response.

Question 3

Does the Tennessee Department of Agriculture have maintenance responsibility or jurisdiction over other public roads or rights of way located within state forests that are of unknown jurisdiction or abandoned maintenance?

Opinion 3

This Office cannot opine on the maintenance responsibility for roads and rights-of-way of unknown jurisdiction because the inquiry is fact-specific in each case. The Department of Agriculture is responsible for maintaining forest roads and rights-of-way of abandoned maintenance but not for roads and rights-of-way of abandoned maintenance in state forests that fall within the purview of other entities.

ANALYSIS

1. You have asked whether the Tennessee Department of Agriculture is responsible for the maintenance and repair of county roads in state forests with specific reference to roads that have been established and constructed by the county government and/or have been included on the county's road list. State forests are state-administered lands used to "provide for the multiple use management of the various renewable and nonrenewable resources such that those resources are utilized in combination that best meets the needs of the people of Tennessee." Tenn. Code Ann. §§ 11-4-103(11), 11-4-801. The Department of Agriculture, through its Division of Forestry, can acquire lands for use as state forests "by purchase, gift, lease, or otherwise." Id. §§ 11-4-401, 11-4-804. Once acquired, the lands "become the property of the state, to be improved, cared for, and administered" by the Department for forestry purposes. Id. § 11-4-404. Thus, within the authority of Tenn. Code Ann. § 11-4-404, the Department could create and maintain—i.e., improve and care for—a system of forest roads to accomplish its forestry purposes.

But the Department is not responsible for county roads in state forests. Counties are responsible for maintaining their own roads. See Tenn. Code Ann. § 54-7-109(a); Graham v. Bradley Cnty., 2013 WL 5234240, at *7 (Tenn. Ct. App. Sept. 17, 2013); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn. Ct. App. 1984).

Whether a road is a county road depends on the circumstances of a particular case. The inquiry turns on public dedication of the road and the county's acceptance of it. See State ex rel. Matthews v. Metro. Gov't of Nashville & Davidson Cnty., 679 S.W.2d 946, 948 (Tenn. 1984). Provided that the state had not previously assumed control of the road, see Tenn. Att'y Gen. Op. 00-100 (May 24, 2000), these facts would evidence county acceptance, see Gore v. Stout, No. M2006-02111-COA-R3-CV, 2008 WL 450597, at 5 (Tenn. Ct. App. Feb. 19, 2008) (dicta) (noting that there were some indications that the public had accepted a portion of a road because, among other things, that portion of the road appeared in the county road list); Peach v. Medlin, No. W2003-02152-COA-R3-CV, 2004 WL 948481, at 11 (Tenn. Ct. App. Apr. 28, 2004) (listing county-funded erection or maintenance of the road as evidence that could have supported a finding of acceptance).

When the county accepts a road as public, the county holds an easement in trust for the public and incurs a duty to maintain the road. Jacoway v. Palmer, 753 S.W.2d 675, 677 (Tenn. Ct. App. 1987); see also State ex rel. Kessel v. Ashe, 888 S.W.2d 430, 433 (Tenn. 1994); Vinson v. Nashville, C. & St. L. Ry., 321 S.W.2d 841, 844 (Tenn. 1958).

Those who acquire land on which a road sits—e.g., the Department—take the land subject to this public-trust easement:

The fee that is in the abutting landowner is subject to the easement rights of others. If there is a public acceptance of the road, the fee is burdened with the rights of the general public to use the land as a public road until such time as it is closed by public authority.

Jacoway, 753 S.W.2d at 677. Therefore, counties—not the Department—are responsible for maintaining county roads in state forests.

This conclusion is consistent with the previous opinion of this Office that the Department of Transportation was not responsible for county roads in state parks, see Tenn. Att'y Gen. Op. 00-100 (May 24, 2000), and is not affected by a county's inclusion or non-inclusion of the road in its county road list, see Shelco Corp. v. Barker, 1996 WL 438877, at *1-2 (Tenn. Ct. App. July 30, 1996).

2. The response to Question 1 makes a response to Question 2 unnecessary.

3. In Question 3 you ask whether the Department of Agriculture has maintenance responsibility for (i) roads and rights-of-way of unknown jurisdiction in state forests, and (ii) for roads and rights-of-way of abandoned maintenance in state forests.

Whether there is a duty to maintain a road or right-of-way of unknown jurisdiction requires a fact-intensive inquiry to determine if the road or right-of-way is public and, if it is, what entity bears the responsibility for its maintenance. See McCord v. Hays, 302 S.W.2d 331, 334 (Tenn. 1957). Various facts specific to the particular road or right-of-way may be relevant to this inquiry, including deeds for the land on which the road or right-of-way sits, the underlying land's tax treatment, formal government action, road construction, improvements, public use, appearance on a road list or map, and abandonment, which itself is based on a fact-specific inquiry. See, e.g., State ex rel. Matthews, 679 S.W.2d at 948–49; McCord, 302 S.W.2d at 334–35; City of Knoxville v. Hunt, 299 S.W. 789, 790–91 (Tenn. 1927); Gore, 2008 WL 450597, at 5; Peach, 2004 WL 948481, at 11; Ty Farming Co. v. Belew, No. 93-285, 1996 WL 649173, at *3–4 (Tenn. Ct. App. Nov. 8, 1996).

Because determining responsibility for roads and rights-of-way of unknown jurisdiction depends on the particular facts pertaining to each road or right-of-way, this Office cannot provide an opinion responsive to this part of Question 3.

The duty of road maintenance ceases when a road is abandoned. Ty Farming, 1996 WL 649173, at 4. But roads and rights-of-way of abandoned maintenance are not necessarily abandoned in the legal sense. See Cockroft v. Claunch, 1992 WL 69621, at 4 (Tenn. Ct. App. Apr. 8, 1992). Legally, abandonment requires "clear and unequivocal evidence of decisive and conclusive acts. . . . [T]here must be some positive showing of an intention to abandon." Jacoway, 753 S.W.2d at 679. Failing to maintain a road or right-of-way, even if coupled with the road's exclusion from the county road list, does not constitute a positive showing of abandonment.

Thus, roads and rights-of-way of abandoned maintenance, absent additional evidence, remain the responsibility of their original stewards. See Templeton v. Sumner Cnty., 1992 WL 207763, at *3-4 (Tenn. Ct. App. Aug. 28, 1992). Therefore, the division of responsibility outlined in the analysis for Question 1 and in Tennessee Attorney General Opinion 00-100 (May 24, 2000) continues to apply for roads and rights-of-way of abandoned maintenance in state forests: the Department of Agriculture is responsible for forest roads and rights-of-way of abandoned maintenance but not for roads and rights-of-way of abandoned maintenance that fall within the purview of other entities, such as park access roads and county roads.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JORDAN SCOTT
Assistant Attorney General

Requested by:
The Honorable Julius Johnson
Commissioner, Tennessee Department of Agriculture
Ellington Agricultural Center
P.O. Box 40627
Nashville, Tennessee 37204

Footnotes:

1. "Multiple use" includes "a combination of timber production, demonstration, watershed protection, wildlife management, recreation, and aesthetics." Tenn. Code Ann. § 11-4-103(7).

2. To "improve" is to "develop (land), whether or not the development results in an increase or a decrease in value." Black's Law Dictionary 773 (8th Ed. 2004).

3. Generally, roads cease to be public after abandonment, 39A C.J.S. Highways § 204, and the landowner possesses whatever duties are imposed by tort law, see Williams v. City of Nashville, 63 S.W. 231, 232-33 (Tenn. 1901); see also S. v. Cowan Stone Co., 221 S.W.2d 809 (Tenn. 1949).