07/23/06 — Still no resolution to alley fight

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Still no resolution to alley fight

By Turner Walston
Published in News on July 23, 2006 2:03 AM

MOUNT OLIVE -- A more than 2-year-old battle over a strip of pavement off James Street isn't over yet.

So far, the bill for the battle has been more than $70,000 in the effort to win an alley not quite 9 feet wide and about 500 feet long.

A local businessman contends that he owns the alley. Mount Olive officials say a survey map from 1926 indicates it is town property.

For more than 20 years, Rick Kraft has owned the building adjacent to the alley, which houses his photography studio and a dog grooming business. But in recent years, more traffic in the alley has brought increased potential for accidents, Kraft said. Several times he has had to repair the walls of the alley after it was swiped by cars.

"We've had a couple of close calls where people almost got hit," Kraft said. "We just got concerned about the liability and the damage to our property."

So two years ago, the Krafts developed a plan to revitalize the area.

In April 2004, Kraft and his wife, Debbie, went before town commissioners to ask for a permit to create a courtyard and close off the alley adjacent to his building.

The board approved their proposal that night, but the next day, there was a problem.

"We got told by (Mount Olive Town Attorney) Carroll Turner that it had been nullified because they had found a 1926 survey map," Kraft said. "They determined that the 1926 family map was an offer of dedication on that property."

The Krafts say Southerland owned their property from 1910 until 1926. When he died, the land came into the possession of Ruby Neal Witherington. Ms. Witherington sold it to the Krafts in 1980. That included the alley, they thought.

"We always considered it ours," Kraft said.

So in June 2004, the Krafts sued the town.

Last October, 15 months later, Superior Court Judge John Jolly ruled that Ben Southerland had intended to dedicate the alley to the town 80 years ago.

Town officials said Jolly's decision confirmed what they believed all along.

"We are not working against Mr. Kraft," Town Commissioner Jimmy Kornegay said. "We are trying to uphold what is right and what has been deeded to the people of the town.

"If you were to close this alley, a fire truck couldn't get in there, a delivery truck couldn't get in, nothing could get in, really."

The Krafts, who said they have spent more than $70,000 fighting for the property, are now awaiting an appeal of Jolly's ruling.

"It's a principle now. This is our property," Debbie Kraft said. "You fight for what's yours. When something belongs to you and you know it, you fight for it."

While Kraft is paying legal expenses out of his pocket, he said town leaders are being irresponsible in the fight.

"They're not spending their money. They're spending the townspeople's money," he said.

But Kornegay said the town has an obligation to fight Kraft's lawsuit.

"Really, we don't have any choice," he said. "(Kraft) filed suit against us, we didn't him. And so basically we have got to defend it," Kornegay said. "I don't feel like I have the power or the authority to give up something that is owned by the people."

Town Manager Charles Brown said he is confident the town will prevail in appeal.

"He's probably the most highly regarded judge on the Court of Appeals," Brown said of Jolly. "The likelihood that his ruling's going to be overturned is not very high."

Kornegay agreed.

"We have won so far, but you never know what's going to happen when you go to court," he said. "The ruling has been in our favor so far each time. Mr. Kraft has appealed it each time."

While Kraft wanted to build a courtyard, Town Manager Charles Brown said Mount Olive does not have specific plans for the alley, other than keeping it open.

"We don't really have any plans for it, except the town just didn't want it blocked," Brown said.

Mount Olive has invested much in fighting the lawsuit, he said.

"I can tell you in dollars, but I better not," Brown said.