Another Mountain Man Fights North Carolina over Property Rights

October 4, 2013
Phillip Byrd overlooking his property

Phillip Byrd overlooking his property

“I thought we elected Conservatives, private property rights advocates. But much to my surprise and disappointment, a state official gave us the run-around by saying how hard he was working on our case while in fact the communication documents I have indicate he was derailing it… Never, not once, would he recognize the agreement for what it was. Instead it was a never ending run-around.”

Phillip Byrd, 8-10-2013

Excerpt from Republican Platform on Private Property Rights: The Fifth Amendment: Protecting Private Property The Takings Clause of the Fifth Amendment—”nor shall private property be taken for public use without just compensation”—is a bulwark against tyranny; for without property rights, individual rights are diminished… Equally important, we pledge to enforce the Takings Clause in the actions of federal agencies to ensure just compensation whenever private property is needed to achieve a compelling public use.

Eustace Conway, chronicled in the Mountain Men TV series is not the only NC Mountain Man fighting the government over Private Property Rights. When Phillip Byrd’s father was dying, he had one wish that he passed on to his son: “Promise me Phil that you will have the state of North Carolina honor the agreement regarding Locust Knob Tower Road.” For forty years, the Byrds have been fighting off and on with state officials to induce them to honor the State’s contractual agreement regarding the Byrd’s property rights on a strikingly beautiful mountain between Asheville and Boone.

Summer sunrise overlooking Bakersfield Town and County Seat

Summer sunrise overlooking Bakersville County Seat

The document signed and recorded in 1974 was a gracious offer by Mr. Byrd’s family to cede access to a road that led to the State’s property for a cost of one dollar. He granted the State a utility easement for free, totaling over 20 acres of his property. Mr. Byrd felt this was not only an honorable thing to do in promoting the welfare of the community, but additionally, the Byrds and neighbors used the road to access their property. The road was critical in reaching first the fire tower, and later a valuable government communication tower, Viper Tower. The single benefit to the Byrds from this magnanimous gesture was that the state of North Carolina agreed to maintain the road to the standard the Byrds deemed necessary. The original document signed by the Byrds was approved and recorded in the County Register of Deeds office by NC state officials. The document states unambiguously, “this maintenance work shall include brushing out and reworking of the road…where in the judgement of the parties of the first part (Mr. Byrd and family) such is necessary.” Mr. Byrd has signed proof by State officials who witnessed the transaction and completely support his understanding of the State’s contractual agreement.

Yet, for forty years, Phillip Byrd claims that few are the times the State has honored the agreement. His family has spent tens of thousands of dollars maintaining the road themselves while continuing to pay County taxes on the road. For forty years, the State has done minimal upkeep and the road has been so damaged at times as to be impassable. The winters are hard on roads in the mountains. Mr. Byrd has reams of photos of poorly maintained drainage ditches resulting in washed-out sections and flooding of the road in other sections.

Byrd's property outside of easement destroyed by Viper Tower construction

Byrd’s property outside of easement destroyed by Viper Tower construction

While the State was constructing the very valuable Viper Communication Tower that services MItchell and surrounding counties, heavy equipment was parked without permission on Mr. Byrd’s property, uprooting trees and damaging his land. Sometimes the equipment blocked road access. There were periods of weeks when his requests to repair damage, or even move the equipment were ignored. More often than not, his family funded the needed repairs.

With the election of a conservative legislature and Governor, Mr. Byrd was hopeful the issue would finally be resolved. Sadly, the stonewalling continues. Phillip Byrd is determined to honor his father’s dying wishes. He is in poor health himself and his energy is flagging. He is loathe to bring legal recourse against a state he loves, and is still hopeful that this clear-cut trampling on property rights and contractual agreement between a private party and the state will be rectified amicably. To this end, he has contacted many government officials including the Attorney General, his state senator, and the Governor. He has been ignored or passed off to other departments while the simple request to maintain the road in the same manner as other similar state maintained roads continues to be unanswered. Those he has contacted thus far have attempted to pass his request on to various departments or county entities, who insist they are not obligated in any way by the contract. They are correct. Mr. Byrd has repeatedly contended that the contract is not with any department or county entity. It is with the State of North Carolina. NC state government may use any department they wish to abide by the terms of the contract, but there seems to be no doubt that the State is honor bound to follow the dictates of the contract.

Locust Knob and other communication towers

Locust Knob  with Viper Tower, UNC TV Tower and NC Forest Service Tower

When Viper Tower was built, the road became even more critical to the state. The tower serves approximately 80% of Mitchell County and 50% of Yancey County. It is clearly in the state’s interest to maintain the road, and yet the state continues to hedge and ignore Mr. Byrd’s request. Mr. Byrd has documents that indicate the tower became so important to the state that Federal funds were allocated to the state to maintain the road.

Where did those funds go? No one seems to be able to answer that question.

Mark Teague, NC Assistant Attorney General, declined to comment on the case. He referred this writer to the Public Information officer in the Department of Justice, Noelle Talley. Ms. Talley said she could not speak on behalf of NC state, nor could she comment on the case as there was no pending lawsuit. Mr Batchelor, of the Governor’s office agreed to speak with the author and to look over the correspondences between Mr. Byrd and the various state departments. He promised to advocate for a speedy resolution. Mr. Byrd sent the batch of emails immediately. In the interim, Mr. Byrd met again with Senator Hise, Representative Josh Dobson, and Representative Presnell. All agreed the State had a responsibility to maintain the road. Sen. Hise was concerned where the funds would come from and what department would do the work. (Valid concerns, but not for Mr. Byrd to determine. The State is honor bound to solve that issue immediately.) None knew where the Federal Funds that were designated to that end had gone.

Locust Knob Tower Road, rutted and in poor condition in Mr. Byrd’s photo archives

This information was all conveyed to Mr. Batchelor. This writer after follow-up contact with Mr. Batchelor, understood first hand Mr. Byrd’s frustration when told that the “DOT was looking into the situation and will get back to me.” With all due respect, this is what Mr. Byrd has been told in varying form for 40 years to no avail.

Mr. Byrd is persevering in his fight, though is frustrated by the hedging over what should be a cut and dry case of the State’s obligation to honor a clear and valid contractual agreement. He feels it is never too early to call in the “Big guns” and requests prayers from any reader thus inclined.

Mr. Batchelor contacted this writer two weeks after our original correspondence, when he assured a “speedy resolution” would be implemented. He urged Mr. Byrd to be patient as the case had been referred to the DOT (again…author’s words) and a “compromise” was being worked on. When asked what exactly he meant by “compromise”, he could not say. When asked why the DOT was working on a compromise when the contract was not with the DOT, but the State, Mr. Batchelor reiterated that the DOT was the entity that would implement road work. Yes, but (again!), it is the office of the State, as co-signer, that is responsible for ensuring the dictates of a valid contract are enacted.

It is perplexing why a duly signed, clear contract with clear parameters needs to be discussed for forty years with still no resolution.

“Why should anyone care about this case…I’m just one guy. But whatever happens to one of us, can happen to any of us,” Phillip Byrd warns.

We should heed that warning. After all, our entire constitutional republic is based on a contract between the people and government. When the government chooses what portions of a contract it can ignore, all elements of that contract are suddenly in jeopardy. If any right can be red-lined, all rights are in danger of being edited. A contract is either inviolable, or it is not. But if it can be claimed null and void for the convenience of one co-signer, then all contracts become tinder for fires of corruption and whim.

by Vicky Kaseorg

United, we can make a difference. If you like this article, please like, and share.
Vicky Kaseorg is an author of several books and writes a daily inspirational blog. She joined the northcarolinaconservative.net out of a love for her country and deep concern over the direction it is headed.

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