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

Town of Oriental Press Release

Readers of The Pamlico News will know about the lengthy screed published on the front page of Wednesday's edition. The lead in paragraph described the screed as the "settlement agreement" between the Town and me.

It is not.

The document, described as a "Press Release," was forwarded to local press by Town Hall, with the following message:

"From: Town Manager <Manager@townoforiental.com>
Date: Tue, Mar 17, 2015 at 12:42 PM
Subject: PRESS RELEASE
To: editor@thepamliconews.com, Jeff@compassnews360.com, Charlie Hall <charlie.hall@newbernsj.com>, Town Dock <info@towndock.net>

Good Afternoon,

Please see attached Press Release. Any further comment from the Town can be solicited from Mayor Bill Sage at 252-670-8227.

David Cox Comment: The Town's "Press Release" is quoted below. I have been told by a usually reliable source who wrote the document, but until the author has the fortitude to sign it, I prefer to call the author "anonymous" or "concealed."

PRESS RELEASE

FOR IMMEDIATE RELEASE—March 17, 2015—Oriental, NC

To paraphrase Gerald Ford, “Our long David Cox nightmare is over.” A full release including a dismissal with prejudice of all lawsuits and appeals filed against the Town by Oriental resident David Cox has been executed by Cox and Oriental Mayor Bill Sage on behalf of the Town. The long and expensive ordeal began when Cox challenged the Town’s authority under state statutes to close the street rights-of-way at South Avenue’s western terminus at Raccoon Creek and all of Avenue A. Cox filed a lawsuit in August 2012 objecting to the Town’s closing of Avenue A, which was done by order of the Board of Commissioners after a public hearing in July 2012. After a hearing in Pamlico County Superior, Senior Resident Superior Court Judge Benjamin Alford, on April 6, 2013, dismissed all counts of the complaint filed by Cox . Cox had represented himself, pro se, in the court hearing. Cox then obtained an attorney who filed an appeal to the North Carolina Court of Appeals from Judge Alford’s order dismissing the case.

After the dismissal of the lawsuit, the Town entered an order to close the western end of South Avenue to the waters of Raccoon Creek. The order announced the intention of the Board to dedicate the property as a park providing public access to Raccoon Creek and public amenities to be constructed thereon. Picnic tables were purchased and placed on the property as part of the process of making it a first-class amenity for the Town citizens and visitors alike.

Notwithstanding that his case had been dismissed and an appeal filed, Cox (again acting pro se) filed a second lawsuit against the Town for the closing of a portion of South Avenue. This meant that the Town had to pay its attorneys not only for successfully obtaining dismissal of the first suit and to fully brief the issues to the Court of appeals, but now also to start the process again on the second lawsuit. The Town’s legal bills began mounting to tens of thousands of dollars. The Town filed motions similar to the earlier motions in the first case to dismiss the second and for sanctions against Cox for filing the second suit. Superior Court Judge John Nobles entered a stay of the second action pending the outcome of the appeal, on the grounds that the appeal would likely resolve the second case.

On the first of July 2014, the Court of Appeals filed its opinion and order affirming Judge Alford’s order dismissing the first lawsuit. The opinion found that Cox had no standing to bring the first suit. By this point, the Town had spent more than $60000 on the Cox lawsuits and the Town’s attorneys invited Cox to dismiss his second action in light of the Court of Appeals’ decision, to end the farce once and for all, warning Cox that sanctions would be pursued if he refused. Cox refused to take a dismissal and, therefore, the Town was obliged to file yet another exhaustive brief to the Superior Court and to renew its formal motions to dismiss. Judge Alford held a hearing on November 24, 2014 on the motions and subsequently issued his order dismissing all of the second lawsuit, another complete victory for the Town, but at considerable additional cost. Cox then did the unimaginable. He filed an appeal to the Court of Appeals of Judge Alford’s order dismissing the second case.

Judge Alford had indicated that the Town’s motion for sanctions was still ripe and that he would hear a motion if the Town pressed it. Further talks between the Town attorneys and Cox ensued and as deadlines at the Court of Appeals approached and passed, Cox finally agreed to dismiss the appeal and all matters and suits against the Town. The Town merely agreed not to pursue sanctions any further. The release and dismissal was signed and will be submitted to the Court this week. The total cost to the Town of Oriental of David Cox’s actions is likely to be in excess of $80000.

During this expensive and lengthy process, the Town proceeded with completing the partially built dock on the property obtained from Mr. Fulcher. We now enjoy a beautiful new eighty-foot public dock for visiting boaters to The Sailing Capital of North Carolina. In addition, the Town applied for and has been awarded grants for the construction of a public restroom facility on the property and for acquisition and placement on the property of a waste pumpout station for vessels visiting the new Town Dock Number Two. Plans are approved and construction is proceeding. The old historic boathouse on the property is to be fully renovated into a Visitors Center, adding yet another much needed amenity to the Town assets for visiting boaters and other tourists.

The Town Board of Commissioners and the Manager and her staff are about to enter the budget process for the next fiscal year. But for Mr. Cox and his lawsuits and appeals, there would be many more dollars available for Oriental to use in providing facilities and services to its citizens and visitors."

Diane H. Miller

Town Manager

Town of Oriental, NC

507 Church St PO Box 472

Oriental, NC 28571

Ph: 252.249.0555

manager@townoforiental.com

www.townoforiental.com

Pursuant to NC General Statutes Chapter 132, Public Records, this electronic mail message and any attachments hereto, as well as electronic mail message(s) that may be sent in response to it may be considered a public record and as such are subject to request and review by anyone at any time."

David Cox Comment:

I urge any member of the public having questions about the document to follow the instructions and call Mayor Bill Sage.

Good For David Boren

David Boren, President of the University oF Oklahoma, has a moral compass.

He also knows how to take decisive action. Would that more of our leaders take heed.

David Boren is not a household name in most of the country. In fact, no University President anywhere across our land is likely to be as well known as the football or basketball coach. Nobel laureates on the faculty? Who cares!

David Boren is unusual. Former governor of the state of Oklahoma, former senator from Oklahoma, he resigned his senate seat to accept the position as President of OU. In his campaign for Oklahoma governor, he defeated James Inhofe. Boren was a Rhodes Scholar.

As for decisive action, he has expelled two members of SAE who were ringleaders in the racist chant, closed the SAE fraternity and forced them to move out of their building on campus.

"Sooners aren't bigots," he announced.

47 Senators Violate Logan Act

Is there something significant about the number 47? That's the same number Mitt Romney used to describe the percentage of Americans who weren't going to vote for him. Just sayin'.

Those curious about US law may have learned that the 47 Republican senators signing the letter to officials of Iran appear to have violated the Logan Act and be subject to 3 years in prison.

So who was Logan and why was the Act passed? Here's a good summary of the history of the Act. And it is a long history.

In 1798 a certain American citizen named Logan travelled to France and worked to improve US - French relations and to free Americans captured by France during the Quasi-War. Logan was a follower of Thomas Jefferson (of the Democratic-Republican party). President Adams, of the Federalist Party, was outraged.  This was not just about Constitutional prerogatives - Adams sought improved relations with Great Britain while Jefferson sought improved relations with France.

So much for the idea that "politics stops at the water's edge."

It never did.

In more than two centuries, there has never been a prosecution under the Logan Act, though there have been some close calls.

Powerful Words

In yesterday' Atlantic, James Fallows pays tribute to President Obama's words on the Pettus Bridge at Selma.

None of us can add to the President's eloquence and wisdom, but Fallows helps us fit the passages into our own hopes and dreams: http://www.theatlantic.com/politics/archive/2015/03/finally-i-hear-a-politician-explain-my-country-the-way-i-understand-it/387178/

There were, in the President's words, echoes of Lincoln. And of Jefferson - and of those who cobbled together a rickety Constitution to hold together a great nation whose citizens often didn't like each other much. But no matter.

We can overcome our divisions and do great things together - and have done so, on occasion.

We are not perfect - or even close, but we can become more perfect if we so choose.

I was also reminded in the President's words of the voice and vision of a great poet who celebrated

"the American muse, whose strong and diverse heart
So many men have tried to understand
But only made it smaller with their art,
Because you are as various as your land,"

Don't take my word for it, read John Vincent Benet's epic poem John Brown's Body  for yourself:
http://gutenberg.net.au/ebooks07/0700461.txt

Yankee Station And Selma

Fifty years ago, my ship was boring holes in the South China Sea, firing projectiles into the jungles of South Vietnam at targets we couldn't see - some nine miles away. It was hard and challenging work and our sailors did it well, but in the end it had little effect.

Meanwhile, brave Americans marched to Selma, stood up for freedom in Greensboro, marched in Memphis, and changed America for the better. These were real patriots and I salute them.

And so did President Obama:  http://www.vox.com/2015/3/7/8168085/president-obama-selma-50

Nemtsov Memorial March

I was glad to see photos of crowds marching in Moscow in honor of Boris Nemtsov.

This march really took more courage than the "Je suis Charlie" demonstrations in France. Supporters of Nemtsov could be in real danger from the Russian state.

Good for them.