Thursday, December 6, 2007
Chancellor orders gate removed
By SUE WATSON
A Shelby County, Tenn., man lost a trial in chancery court for a second time and has been ordered by chancellor Glen Alderson to remove gates, gateposts and a sign that had been put up at Powell Chapel Road.
Property owner Raymond H. Burdsal counter-sued the county, disputing its claim the road has always been publicly maintained and used by the public.
Following Alderson’s second judgement, Burdsal removed the gate and sign.
He argued the county trespassed and also took part of his property when it widened the road and made improvements without his consent in his counter suit.
Alderson’s first judgement in favor of the county, which sought an injunction in chancery court to prohibit Burdsal from blocking traffic on Powell Chapel Road up to Powell Chapel Church and the cemetery, was filed by the county February 9, 2004.
Burdsal said his reason for putting the gate across the road was not to keep church members from attending church or using the cemeteries. He was upset by misuse of the property by those who had no legitimate reason to be there and because the widening of the road changed the lay of the land. He said church members had right to access to the area in a deed from land owned by the Mitchell family whose ancestors had sold some land to the church. That included a road that became badly eroded and nearly impassable before the members sought another means of getting in and out, Burdsal said. The road which the county officially named and claimed was merely a field road on his property and adjacent to land owned by the Mitchell family, he said.
But the issue about the road was more of a personal one about constitutional rights, Burdsal said.
“It affected the nature of what I believe I have a right to as a child,” he said. “The general public does not have a right to my private property. It’s my pride, possession and right.”
Burdsal said his grandfather once worked that land and he had childhood memories about the land and the people who lived there, the blacks and the whites. Everyone depended on the other like a big family, he said.
The church once burned and his ancestors, the Colstons, and the Humphrey family helped their tenants rebuild the church, he said.
Burdsal said he wanted to help the Powell Chapel Church get its road open and he wanted to close his road to traffic. He had plans for a pasture for horses and restoring the house - his share of a family inheritance - as a retirement home.
“I didn’t want blacktop. I wanted the farm my grandfather had to enjoy as a retirement home. There’s a part of me that lives down there and always will,” he said.
For supervisor Willie Flemon, who sided with some members of the church who wanted the road opened and improved, a part of him may also live in the community. He lived there up until he was 9 years old and, like Burdsal, has fond and lasting memories of the area, including hunting.
Flemon said last week that the matter of the construction of the gate was brought to his attention first by church members while supervisors were attending a seminar in Jackson.
“He (Burdsal) said it was a private road,” Flemon said. “There was an old house back in there and this was some of his inherited property. He planned to remodel the house and I informed him he couldn’t put a gate across a public road.
“I told him, he had better see the county road manager. From there it escalated until the church people found out and complained and then he put up the posts and gates.
“We were in Jackson when I got a call the gate was up and locked.”
Flemon said he remembers hunting rabbits with sticks as a child in the area and walking the road himself. The road was used by the public then, he said, and although his family moved to town, he continued to have contact with the community.
As a supervisor, Flemon also has to follow state law, he said.
Flemon said state statutes require counties to provide access from public roads to cemeteries that are actively in use. One cemetery in the area in question is the place of interment of white people (New Hope Cemetery where Burdsal’s relatives are buried) and two are burial grounds for blacks including Powell Chapel Church members, he said.
In its suit against Burdsal, the county contended it had maintained the road for many years and that Powell Chapel Road was listed on the 2000 Official Road Map and Registry filed with the state as a statutory requirement that year.
In his counter-complaint alleging trespass, Burdsal alleged that the road bed in question had been used by permission by members of Powell Chapel Church since the 1930s and also by permission to renters to access fields, but not for use by the general public.
Burdsal said the county had increased the road width and claimed 30 feet right-of-way from the center line long after he put up a gate.
The increase in width changed the road from a single to a double lane, he said, not including grading and drainage that was done as part of the project which changed the appearance of the land.
Alderson entered a judgement in favor of the county in the first trial on May 5, 2004 in which he judged for the county on the issues that it has legal title to the road by right-of-way and by maintenance and by sovereign immunity.
Burdsal’s first council, attorney William Schneller, withdrew from the case and he hired attorney Christopher Howdeshell of Hattiesburg in August 2004.
Burdsal appealed the first judgement and the Mississippi Supreme Court reversed Alderson’s judgements September 7, 2006, and remanded the case back to Marshall County chancery court. The court of appeals concluded the county had not met its burden of proof in three elements.
Burdsal moved to re-open the record and it was granted.
The case was retried on November 15, 2007, on its merits before chancellor Alderson.
The county relied on testimony from county employees, church members and subpoenaed witnesses who testified the road had been maintained by the county and the public had access to the road for many years, according to counsel for the county, Tacey Clark Locke.
“Many members from Powell Chapel Church was there,” Locke said. “It was held in the new courtroom which is beautiful and has good acoustics - a great new courtroom.”
Burdsal did not say last week whether he will appeal Alderson’s judgments in the second trial.
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