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A town street is a town street is a town street. It doesn’t have to be paved, but if it’s been in use as a public place, it stays a public place.

That’s the view of the North Carolina Court of Appeals in a Tuesday ruling that marked a big victory for the Town of Oriental.

The arrow points to where South Avenue ends, in the view of the NC Court of Appeals. The Tuesday ruling clarified that the town maintained control of the street to the harbor. An adjacent landowner had tried — in the courts and with a chain-link fence — to claim the 60 feet of harborfront as his private property.

The Court of Appeals overturned a 2008 lower court ruling and said that South Avenue extends to the harbor. In the court’s view the end of South Avenue — paved or not — is indeed the town’s — and the public’s — and not that of adjacent landowner, Lacy Henry.

In question was the grassy waterfront area that is a continuation of South Avenue. It’s about 60 wide when it reaches the Oriental harbor.

Attempt To Claim South Avenue as Private Property

Fourteen years ago, Henry purchased the harborfront lot next to South Avenue and shortly afterward extended a chain-link fence beyond his land an on to the town’s land, preventing the public from fully using it. A few years later, when Henry sought a CAMA permit to build a marina there, the Town challenged him on the attempt to take over the end of the street. The land dispute Town of Oriental v. Lacy Henry had been making its way through litigation for more than half a decade.

A year ago, New Bern judge Ken Crow sided with Lacy Henry, granting him a summary judgment that took town officials by surprise. Dismayed, some town commissioners talked of settling out of court with Mr. Henry. But the town pressed on with a new attorney and an appeal to the Court of Appeals, and Tuesday, the town prevailed.

Click here for a PDF of the Court of Appeals opinion in Town of Oriental v. Lacy Henry.

Victory For Public Access Seen
Town Commissioner Dave Cox, who has been following the case closely and was an advocate of pressing on with the case, said he was “delighted” by the Court of Appeals ruling in the town’s favor. He calls it an “important victory” in protecting the public’s access to public waters, such as the Oriental Harbor.

Cox says that “having public waters does little good if access to those waters is in private hands. I think public officials have a duty to protect existing public access from being wholly taken over by private interests.”

South Avenue. The asphalt paving curves to the left on to what is Avenue A. But as the North Carolina Court of Appeals confirmed Tuesday, South Avenue continues straight to Oriental’s harbor. That means the town street extends through the chain link fence that an adjacent landowner erected 14 years ago in a bid to claim South Avenue as his private property. The Appeals Court sided with the Town.

Commissioner Kathy Kellam credits Cox with being a “bulldog” about taking the case to court. Kellam notes that while there had been worries about the financial cost to the town of pursuing the litigation, “we were convinced that the Town was in the right. We concluded that it was important to take this stand to protect other town property from similar claims.”

Town Leased The Land Out For Decades
The Court’s opinion noted the fact that for half a century, starting in the 1930s, the town leased the end of the road to several people, mainly Lacy Henry and his family for use as a boat yard. It also noted that in 1982, the minutes of a Town meeting reflect that Lacy Henry offered to buy the land in question. To a layperson, those might be evidence that the town was the landholder.

But the court’s decision yesterday centered more on established law concerning control of town streets. Or in the terminology of the courts: the “dedication” and “acceptance” of public rights of way.

Town: Earliest Documents Show South Avenue Extended To Harbor

For its side, the town provided evidence dating as far back as Oriental’s earliest maps and deeds showing that South Avenue extended to the harbor, known in court documents as Raccoon Creek.

There were affadavits from two long-time Oriental residents, Fonnie Higgs and John Bond, that they always understood South Avenue to go to the harbor.

Public access on the harborfront. South Avenue occupies about 60 feet of land along the harbor, starting just to the right of the white shed in this photo. The Court of Appeals ruled Tuesday that the land is in fact South Avenue and not the private property of an adjacent landowner. At least one town commissioner is talking of adding a second Town Dock for transient boaters in that space.

Defendant’s Affadavits: Never Suspected South Avenue Went to Harbor

To counter the town’s claim, Lacy Henry had presented affadavits from 5 people who said, “I have never known or suspected that South Avenue extended to Raccoon Creek; I believed that South Avenue turned southward and became Avenue A because of its physical appearance.”

Those affadavits may have been counterproductive to Henry’s case.

Court: Once A Street…
The Appeals Court wrote:
“these affidavits do not establish that the property dedicated as South Avenue did not extend to Raccoon Creek ( Ed: The Harbor); these affidavits support only the uncontroverted fact that the portion of South Avenue that was paved and opened for public use intersects “Avenue A, thereby bypassing the area in dispute in the lawsuit.” The unpaved portion of South Avenue continued to Raccoon Creek, as shown in the various surveys and maps of the Town beginning in July 1900 and as attested to in affidavits submitted by the Town at the summary judgment hearing.”

The court continued:

Accordingly, as part of South Avenue was paved and opened to
public use, the remaining portion of South Avenue, including the
South Avenue terminus, remained dedicated to public use.

Court: Quit-Claim No Claim
The court reiterated that point in addressing the so-called, “quit-claim” that Lacy Henry obtained from the woman from whom he’d bought a waterfront lot next to South Avenue. The Court of Appeals disagreed, saying that she didn’t have claim to the South Avenue land in the first place, as the town had never “withdrawn” it.

Again, Tuesday’s Appeals Court opinion:

The South Avenue terminus was not subject to withdrawal from dedication since that property was but an unopened portion of South Avenue which was otherwise actually opened and used by the public. Food Town Stores, Inc., 300 N.C. at
29, 265 S.E.2d at 129.

(The court also slapped aside the ‘quit-claim’ claim altogehter, noting that the woman who provided the quit-claim to Henry did so AFTER selling him the property alongside South Avenue, and so had no standing to quit her claim on anything.)

Word on the Streets
The court’s ruling was in keeping with NC law regarding municipalities’ control of streets. Commissioner Cox was happy to note that the court was “very explicit that the rule applies to the length as well as the breadth of the dedicated street.”

It is possible that Lacy Henry could appeal the Court of Appeals ruling to the state’s highest court, the NC Supreme Court.

Dave Cox meanwhile, says he would like “to see another Town Dock at the end of South Avenue. If we can attract a higher percentage of the 14,000 boats migrating up and down the ICW every year, as well as more boaters from elsewhere in Eastern NC, it will benefit every business in town.” Fellow town commissioner Kathy Kellam says that the town “will be pursuing grant opportunities to develop the property for public use.”

And as for Lacy Henry’s chain-link fence on town property and when it would be coming down? Commissioner Kellam says, “I understand that we have a 21 day wait period before we can have the “take down the fence” party.”

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Links to previous stories about the South Avenue case:

From March 2003

From May 2003

From May 2008 when New Bern Judge Ken Crow granted a summary judgment to Lacy Henry, in a ruling against the Town of Oriental

Posted Wednesday July 8, 2009 by Melinda Penkava