Burlington couple loses appeal at N.C. Court of Appeals against city over taken alleyway

The state’s second-highest court has rejected an appeal by a couple in Burlington who sued the city in 2021 for using an alleyway they claimed to own to build a paved public walking path near Rockwood Acres subdivision.

In the suit they had originally filed in Alamance County superior court in early 2021, John and Cindy Lackey of 1332 Ridgecrest Avenue, Burlington, claimed that the city unlawfully took a 170-foot wide swath of land, described as the “dead-end alleyway,” that backs up to their house and had been used for years as a garden and an orchard. The Lackeys claimed in their suit that they and their ancestors had owned part of the property since the mid-1950s.

Cindy Lackey at a Burlington city council meeting in 2020.

In their original complaint, the Lackeys recalled that in 2003 they’d asked the city for help with long-running problems with drainage and flooding along the dead-end alleyway and were told the city “had no right to the property and therefore was not responsible for the flooding,” according to the Alamance County court file. The Lackeys had used the dead-end alleyway as a garden for 200 large plants, according to the original lawsuit.

The current owners, John and Cindy Lackey, filed suit in 2021, a year after the city turned the dead-end alleyway into a paved walking path, allegedly destroying their garden and orchard in the process.

The original suit alleged that, in March 2020, Burlington’s city council had suddenly decided to accept “an offer of dedication,” made 65 years earlier, in 1956, by the couple’s ancestors and the original owners, Otis and Barbara Lackey, according to the case background.

For their appeal, the Lackeys unsuccessfully argued that the visiting superior court judge who presided over the trial in Alamance County in July 2021, Mark A. Sternlicht of Cumberland County, erroneously dismissed their suit. The couple also argued on appeal that they own the property through “adverse possession,” a legal doctrine allowing who encroach on other’s land for a minimum of 20 years to develop an ownership claim to the property, and the city should be barred from accepting the “offer of dedication” the original owners had made in 1956. The couple had asked the judge to issue an injunction to prevent further use of their property for a public walking path, according to the suit they had filed in Alamance County superior court in early 2021.

The city’s lawyers, however, successfully argued during the Alamance County superior court trial that the suit should be dismissed for failure to state a claim on which relief could be granted. Sternlicht agreed, based on the factual background outlined in the opinion from the Court of Appeals.

Writing for the Appeals Court, judge Toby Hampson reasoned that under state law, in order to acquire land through “adverse possession, the claimant must show actual, open, hostile, exclusive and continuous land claimed for the presumptive period (seven years or twenty years) under known and visible boundaries.” Hampson found that the Lackeys had failed to “meet the prescriptive period to establish their continuous possession of the alleyway” and had not acquired an interest in an adjoining lot from the original owners until 2002 and hadn’t started using it for their orchard and garden until 2004.

Hampson ultimately concluded that a final plat recorded with the county’s Register of Deeds in 1997 “expressly shows the alleyway as a public right-of-way.” He further notes in his opinion for the Appeals Court, “The deed also expressly makes the conveyance [to John and Cindy Lackey in 2002] subject to any rights-of-way shown on the public record.”

Hampson also concluded that the Lackeys had “approached the city about the alleyway in 2004 and were given permission by the city” to use the property for a garden in 2004; and that when they asked the city to repair a drainage problem in 2005, they had not asserted “any claim of ownership…inconsistent with their permissive use,” according to the opinion issued by the Court of Appeals late last month.

Hampson also determined there was no statutory basis to bar the city from accepting the dedication of the alleyway offered by the original owners in 1956. “At the outset, [the] plaintiffs…concede they make no claim there was any statutory withdrawal of the dedication of the alleyway,” Hampson notes in his opinion for the Appeals Court.

Specifically, the Lackeys cited a 1952 ruling by the state Supreme Court, dealing with a subdivided tract of land, then named Vineland, which later changed its name to Southern Pines and was subsequently chartered by the General Assembly as the town of Southern Pines.

The state Supreme Court ruled in the 1952 that the town of Southern Pines was barred “from asserting any right to the alleyway at issue in that case,” and that a resolution passed by the town’s board “was tantamount to a formal rejection of the offer of dedication,” even though the town’s charter required the town to provide for the upkeep of streets, sidewalks, and alleys.

However, Hampson concluded that the Lackeys’ suit against the city of Burlington differed from the underlying facts of the 1952 state Supreme Court case on several points, including that there was no allegation that Burlington’s city council had taken any action to relinquish any right to the dead-end alleyway.

“Rather, [the] plaintiffs point to allegations that in 2002, they inquired of the city as to the ownership…and the city responded it did not own the alleyway,” Hampson wrote for the Appeals Court. The complaint alleged that the city agreed to “undertake maintenance to improve drainage…and permitted [the] plaintiffs to operate a garden in the alleyway,” but these actions didn’t represent a formal rejection of the original, 1956 offer of dedication, Hampson wrote.

Appeals court judges Allegra Collins and Darren Jackson, who lost his bid for reelection in November, concurred with Hampson’s opinion.

The plaintiffs were represented for their appeal by the Blanco Tackabery & Matamoros law firm in Winston-Salem. The Hartzog Law Group in Raleigh represented the city for the appeal.