Tennessee § 54-5-136 - Personal property encroachments on rights-of-way.

§ 54-5-136. Personal property encroachments on rights-of-way.

The department is authorized to remove, store, sell and dispose of personal property encroachments on the rights-of-way of highways under its jurisdiction at the expense of the owner. If the encroachment presents an immediate danger to the traveling public, the department may remove the encroachment without prior notice to the owner. If the owner's name and address can be ascertained by reasonable inquiry after removal, the department shall give the owner notice, by certified mail, within ten (10) calendar days of removal. If the encroachment does not present an immediate danger to the traveling public and the owner's name and address can be ascertained by reasonable inquiry, the department shall give the owner ten (10) calendar days' notice, by certified mail, of its intent to remove the encroachment at the owner's expense. The ten-day period shall run from the fourth day after the mailing of the notice. Upon expiration of that period, the department may remove the encroachment. The owner of personal property encroaching on the right-of-way of a highway under the jurisdiction of the department shall be liable for any damages caused to the department or to third parties by the encroaching property. The department does not have a duty to find or remove personal property encroachments on the rights-of-way under its jurisdiction. If the department receives actual notice that an encroachment presents a hazard to those traveling on the adjacent roadway, the department shall, if the owner's name and address can be ascertained by reasonable inquiry, notify the owner of the property and instruct the property owner to remove the encroachment immediately. The notice shall be sent by certified mail, return receipt requested. After notice, or if unable to locate the owner's name and address after reasonable inquiry, the department may remove the encroachment pursuant to subdivision (a)(1). If removed property is declared by the department to have value to the public and is capable of transport by ordinary means, it shall be stored on department property for thirty (30) days, during which time the owner may claim the property after paying related expenses incurred by the department. If the property is not so claimed, then it shall be offered for sale to the public after notice posted in the county courthouse of the county in which the property was located prior to removal. The owner shall be entitled to the proceeds of any sale, less costs, if claimed within one (1) year following the sale; otherwise, the proceeds shall vest in the department and become part of the highway fund to defray expenses in carrying out this section. If removed property is declared to have no value to the public or not purchased at public sale, or the property is incapable of removal by ordinary means, it shall vest in the department to be disposed of as it determines. Acts 1984, ch. 791, § 1; 2002, ch. 811, § 1. Cross-References. Unclaimed or abandoned vehicles, title 55, ch. 16. Attorney General Opinions. Neither the Department of Transportation nor any other agency of state or local government has express authority to grant a citizen permission to erect a cross or similar memorial upon a right-of-way of a state or interstate highway, but the Department does have authority to remove and dispose of crosses and similar memorials, that have been erected or placed upon the right-of-way of a state or interstate highway, OAG 05-016 (2/03/05). The Tennessee department of transportation has express authority to remove and dispose of personal property encroachments — including crosses and similar materials — upon the rights-of-way of highways under its jurisdiction, OAG 06-157 (10/9/06). Cited: Tennessee Realty Dev., Inc. v. State Dep't of Transportation, — S.W.3d —, 2008 Tenn. App. LEXIS 774 (Tenn. Ct. App. Dec. 29, 2008).