04/15/04 — Old records reveal Mt. Olive can't close alley

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Old records reveal Mt. Olive can't close alley

By Bonnie Edwards
Published in News on April 15, 2004 2:01 PM

MOUNT OLIVE -- The town board may rescind a vote taken earlier this month that allowed a businessman to close an alley.

The town board approved Rick Kraft's plan to install a gate at the James Street end of an alley that runs beside a building he owns and through to John Street in downtown Mount Olive.

Kraft had offered the town an easement to the alley and the fire department an access to the code to open the gate. On April 5, the board members thought the town did not have public access to the property.

But records dating back to the 1920s found by the town's lawyer show that Kraft does not own the alley. That means the alley is public property.

Town Attorney Carroll Turner said he thought it was strange that the town did not have an agreement for the alley. "The public had been using it for 50 years, and because of that alone, it had the right to continue using it," he said.

It had not occurred to him to look for dedications, because to his knowledge, the town had never had a public alley dedicated. Normally, he said, research doesn't go back farther than 50 years.

On the afternoon of the board action, someone called Turner about a deed that had been recorded in 1920. Property adjoining the alley had been deeded to English and Oliver Properties, where Oliver's Restaurant is now. It was the English and Oliver Brokerage House deed, which laid out the alley from James to John streets.

With that information he began searching through records from that era. The deed to English and Oliver had been from Ben Southerland. The second map recorded on the property was in 1926, when Southerland dedicated the alley to the town as a public right of way.

Turner said anybody who owns property adjoining the alley has a deed that is subject to the map recorded in 1926, because it was recorded first.

A public right of way has the same status as any street in Mount Olive. All streets are dedicated and are thereby owned by the public, and if an adjoining property owner wants to petition the board to close an alley or a street, Turner said, it would require "jumping through a lot of hoops."

"What this boils down to is we could not do what we attempted to do the other night," Turner said. "At the time we were all laboring under the misconception that Kraft might own the property. Now it is clear he does not. It's a public right of way, and the town of Mount Olive has no authority to convey any portion of it to him or anybody else."

Mount Olive town officials had never liked the idea of letting Kraft close the alley, said Town Manager Ray McDonald.

The only way the alley could be closed would be for the town to notify all of the adjoining property owners, hold a public hearing and then divide it equally among them.

He said Kraft has been notified, and the matter will be brought before the board May 3. The board may rescind the action, he said, but it really doesn't matter. The dedication of the alley precludes everything that has followed.

"We've learned a lot through this," said McDonald. "In these older towns when you research matters like this, we've learned you need to go back until the trail stops. Then, you know you've gone back as far as you need to go."