In the meantime, under its general power to control its highways, the state has authority to authorize any use of the right-of-way consistent with the purpose of the highway and not in derogation of the rights of the public or those of the abutting landowners.Id. at 797 (quoting State ex rel. Phillips v. Smith, 241 S.W.2d 844, 847 (Tenn. Ct. App. 1950)). Under this legal authority, the State can allow Metro to have vehicular access from the courthouse area to the bridge and vice versa.
Nevada and Tennessee courts have stated that an unlawful encroachment placed on a public roadway will not constitute abandonment. Anderson v. Richards, 96 Nev. 318, 608 P.2d 1096, 1099 (1980); State v. Smith, 34 Tenn. App. 608, 241 S.W.2d 844 (1950). The Anderson court went on to state that a public road is not abandoned when it is used by only a few members of the public or because of a substantial reduction in the members of the public who continue to make use of rights previously acquired.
Obstruction of a public road is unlawful (NRS 405.230(1)) and cannot aid appellants' position. An unlawful encroachment placed upon a public roadway will not constitute an abandonment of the public easement and cannot divest the public of its right to traverse. King v. Corsini, 335 N.E.2d 561 (Ill.App. 1975); State v. Smith, 241 S.W.2d 844 (Tenn.App. 1950). NRS 405.230:
Neither the allegations of the petition nor any fact not contained in the record returned can be considered. It is essential that the record returned show the existence of every fact necessary to authorize the respondent to act. ( Commissioners of Highways v. Smith, 217 Ill. 250; Southworth v. Board of Education, 238 id. 190.) The statute requires as the basis of the county superintendent's authority to call an election a petition signed by at least fifty legal voters.
Rather, "[t]he failure to use must be accompanied by some act of the owner of the dominant estate clearly indicating his purpose to set up no further claim in order to work abandonment." State ex rel. Phillips v. Smith, 241 S.W.2d 844, 846 (Tenn. Ct. App. 1950). "'[T]here must be some clear and unmistakable affirmative act indicating a purpose to repudiate the ownership.'"
Custom advocates a standard under which the owner of a nonconforming business cannot be deprived of his right to engage in the nonconforming use of his property unless he demonstrates an intent to abandon the nonconforming use, citing the common law principle that an interest in property is not considered abandoned unless there is proof of intent to abandon and an overt act evidencing the intent to abandon. State ex rel. Phillips v. Smith, 34 Tenn.App. 608, 241 S.W.2d 844 (1950); Phy v. Hatfield, 122 Tenn. 694, 126 S.W. 105 (1909); Boyd v. Hunt, 102 Tenn. 495, 52 S.W. 131 (1899). In support of its argument, Custom cites Boles v. City of Chattanooga, 892 S.W.2d 416 (Tenn.Ct.App. 1994), involving a City of Chattanooga discontinuance ordinance with a time limit of 100 days.
This intention may be proved with evidence of acts clearly indicating that the easement holder desires to lay no further claim to the benefits of the easement. See State ex rel. Phillips v. Smith, 34 Tenn. App. 608, 612-13, 241 S.W.2d 844, 846 (1950).Hall v. Pippen, 984 S.W.2d 617, 620-21 (Tenn.Ct.App. 1998).
This intention may be proved with evidence of acts clearly indicating that the easement holder desires to lay no further claim to the benefits of the easement. See State ex rel. Phillips v. Smith, 34 Tenn. App. 608, 612-13, 241 S.W.2d 844, 846 (1950). Abandonment may be proved by either a single act or a series of acts.
This intention may be proved with evidence of acts clearly indicating that the easement holder desires to lay no further claim to the benefits of the easement. See State ex rel. Phillips v. Smith, 34 Tenn. App. 608, 612-13, 241 S.W.2d 844, 846 (1950). Abandonment may be proved by either a single act or a series of acts.
Boyd v. Hunt (1899) 102 Tenn. 495, 52 S.W. 131. The abandonment of an easement like the abandonment of any property right, must be accompanied by the requisite intent to abandon. State ex rel Phillips v. Smith (1950) 34 Tenn. App. 488, 241 S.W.2d 844; Cottrell v. Daniel et al (Tenn. App. 1947) 205 S.W.2d 973. The proof totally fails to establish an abandonment of the thirty-foot easement. To the contrary, the easement has been continuously used for the purposes for which it was created in 1916.