Owner won access to property in March of 2007 but still waits
Published 3:32 pm Monday, August 3, 2009
In 2005, the neighbors blocked access, just as Cochran was working his land in preparation for reforestation. The Cochrans say they are frustrated.
&dquo;We have spent four years and tens of thousands of dollars for legal costs to get access to our property.&bsp; The court decided in our favor ‐ but 2&rac12; years later we still do not have access, &dquo; Mickey Cochran stated.
When Mickey Cochran lost his job and pension with a textile business in 2001, he was facing the need to send his two children to college. He turned to his property to meet some of this cost and as part of his retirement plan. He is hoping to farm the property and to continue growing timber on it.
&dquo;Our family has used two routes through the Womack and Hodge properties since the early 1900s,&dquo; Cochran said. &dquo;I tried to work something out with three of the neighbors, even offering to pay or trade for a right of way.&dquo;
The Cochrans&squo; decided to petition under Sections 136-68 through 70 of North Carolina Law, for cart way access, feeling that this would best support their need to have timber and farm equipment access.
The properties that border the Cochrans&squo; include those owned by members of the Womack and Hodge families along Womack Road and County Line Road.&bsp; Other properties in the area owned by the Elliott, Wilson, Boggs, Sizemore, and Whitfield families were added to the list of respondents in the case at the direction of the Polk County Clerk of&bsp; Court. The right of way would have to go through one or more of these properties. They were the respondents in the case. &bsp;
In court documents, the respondents raised questions regarding the environmental effect and the Green River flood plain both with respect to the road itself and any activity that the Cochrans might conduct on their land. They also focused on whether the Cochrans actually owned the land as they claimed, and contended that the Cochrans had not demonstrated that they were going to conduct the kind of commercial enterprise that was permitted under the statute.
In 2006, Charlene T. Owens, clerk of the Superior Court of Polk County, ruled that the Cochrans had not proved that &dquo;&ellip;they are using their property, or intend to use their property, for a purpose listed in section 136-68 (sic)&ellip;.&dquo;&bsp; The specified purposes (actually included in section 136-69) are: &dquo;&ellip;cultivation of any land or the cutting and removing of any standing timber, or the working of quarries, mines or minerals, or the operating of any industrial or manufacturing plants, or public or private cemetery, or taking action preparatory to the operation of any such enterprises&ellip;.&dquo;
The Cochrans immediately appealed the clerk&squo;s ruling, reiterating that they had sold timber off the land on a number of occasions, and that they have plans to farm the land and further conduct timber operations.
The claim for a right of way was settled before a jury in Superior Court with Judge James Downs presiding. His ruling &dquo;ordered&ellip; that the petitioners are entitled to the establishment of a means of entry to and exit from their land, for whatever term, over the lands of the respondents.&dquo; This ruling was in March 2007.
Judge Downs also ordered that the clerk of court &dquo;appoint a jury of view to view the premises and lay off a cart way of not less than 18 feet in width and assess the damages to the owner or owners of the land crossed&ellip;.&dquo; &bsp;
The Polk County clerk, Charlene Owens, recused herself and the matter was referred to the clerk of court of Henderson County six months later.
On March 12, 2009, the Jury of View released its findings. They found that an existing timber road through the property of Larry S. Hodge was the appropriate cart way. Hodge filed an exception because the question of damages was not addressed. Larry Hodge declined to be interviewed for this article, indicating that he felt it would be inappropriate to comment on a matter that is being handled by the court.
At this time, the required hearings regarding damages and the commissioners&squo; report have not taken place. A call to the Henderson County clerk of court, Kimberly Gasperson-Justice, determined that she is following up with the Jury of View.
&dquo;My brother and I are not the only people in this situation. I know of others who are landlocked or who have experienced the slow workings of our judicial system,&dquo; commented Cochran.
Mickey Cochran noted that the property&squo;s assessment has been raised from $95K to $270K in the most recent reassessment.
He said, &dquo;That&squo;s a lot of money for land you cannot get to.&dquo;
In the prior assessment, the value of the Cochrans&39; land had been reduced by 24 percent because of the lack of access.