Town Of Oriental v. Lacy Henry (Highlights)

Remember the previous South Avenue Case? The Town spent tens of thousands of dollars to win clear control over the terminus of South Avenue.


TOWN OF ORIENTAL, Plaintiff,
v.
Lacy HENRY and wife, Judy
B. Henry, Defendants.
No. COA08–896.
Court of Appeals of North Carolina.
July 7, 2009.
Background: Town filed suit against purported owners of portion of street that was
never paved or used for vehicular traffic,
seeking to clear title to property. Defendants filed motion to dismiss for failure to
state a claim upon which relief can be
granted. Town filed motion for summary
judgment. The Superior Court, Pamlico
County, Kenneth F. Crow, J., denied
town’s motion, treated defendants’ motion
as one for summary judgment, and granted summary judgment to defendants.
Town appealed.
Holdings: The Court of Appeals, Stephens, J., held that:
(1) unpaved portion of street that was never paved or used for vehicular traffic
remained dedicated to public use;
(2) withdrawal of dedication of portion of
street that was never paved or used for
vehicular traffic by its former owner
was ineffective; and
(3) purported owners were not permitted
to acquire possession of the property
by adverse possession.
Reversed and remanded.
1. Appeal and Error O893(1)
Standard of review for summary judgment is de novo.
2. Dedication O19(5), 29, 31
Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open; [There is more, but this is pertinent to Cox v. Town]

Appeal by Plaintiff from order entered 2
May 2008 by Judge Kenneth F. Crow in
Pamlico County Superior Court. Heard in
the Court of Appeals 29 January 2009.

Wheatly, Wheatly, Weeks & Lupton, P.A.,by Stevenson L. Weeks, Beaufort, and Davis,Hartman, Wright, PLLC, by Michael ScottDavis, New Bern, for Plaintiff.Lee, Hancock & Lasitter, PA, by Moses D.Lasitter, and McAfee Law, P.A., by Robert
J. McAfee, New Bern, for Defendants.