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.

Cox Surrenders to Town Government's Taking

This is to let readers of my blog know that I have formally surrendered in the court case of Cox v. Town of Oriental in what I still view as a swindle.

I call it a swindle because when Town Government closed the terminus of South Avenue, they took my personal property right (and the right of other property owners in the Village) to an easement in that street and gave it to another citizen. Not because I say so, but because more than a hundred years of NC Supreme Court decisions say so. The Court of Appeals spelled it out in the second paragraph of their 2009 opinion in the case of Town of Oriental v. Henry: "Generally," the Court said, "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...." 

I didn't surrender because the Town had the right to close South Avenue - they didn't. I surrendered because I no longer have the material and emotional resources to continue the fight, even though the prospects for a win at the Court of Appeals were excellent. But I had to face the possibility that even after a win I might face additional years of litigation.

I'm sorry the elected officials of the Town spent so much money on the effort to keep the legal issues from being ruled on by the Court of Appeals. I'm sorry the Town Government has done nothing to protect future public access to and ownership rights of the new Town Dock, as I urged them repeatedly to do.

From 2002 to 2009 the Town Government spent tens of thousands of dollars to defend its control of South Avenue and to defend the rights of its citizens to use that public way to access public trust waters. That effort sought to bring legal issues before the Court of Appeals. Now the Commissioners claim to have spent more than 80 thousand to abandon the fruits of that victory for the Town's citizens and property owners. This time the Town Government's purpose in the court fight was to keep the issues away from the Court of Appeals.

I am grateful to the Court of Appeals for spelling out in its opinion on Avenue A what I needed to do to win on South Avenue. I am also grateful to the Court that it did not affirm a single one of the Town's claims to have lawful authority to do what they did.

That being said, I could easily foresee two or three more years of effort to oppose this taking, with an uncertain outcome. I have other things to do.

I have abandoned the court fight, but I will not abandon my concern for public access to public trust waters.

Thanks for your support.

David Cox