By Mark Wineka
The continuing scuffle between Rowan County Commissioner Jim Sides and the city of Salisbury might soon need a name:
The Battle of Six Trees Path?
Rowan County Magistrate Fred Moore granted a city request for continuance Wednesday in Sides claim that the city owes him $2,222.22 in damages for six 3-inch caliper trees that were destroyed on his property during a city-contracted survey for a potential sewer line.
Sides and city officials will be back before Moore in Small Claims Court on July 25.
While Moore allowed the citys motion for continuance, he denied its motion to have the case dismissed.
Moore said he wants to see evidence July 25 that the city and Sides are trying to work through their differences or that the city has started condemnation proceedings that would move the matter out of his jurisdiction and into Superior Court.
But Moore emphasized Wednesday that for now, I have the authority to hear this.
To say this is complicated would be an understatement, Moore added.
The magistrate strongly encouraged the parties to meet and talk about the case.
After Wednesdays hearing in Small Claims Court, Sides, City Attorney Rivers Lawther and City Manager David Treme took Moore up on his offer to use the magistrates office outside the third-floor courtroom.
Sides stated his case concisely Wednesday and claimed that he has suffered damages the loss of six trees from the surveying work last year and that his claim for compensation belongs in Small Claims Court.
Lawther also put the citys case succinctly. It sought a continuance until the city and county decide where the I-85/ Town Creek sewer line will be located.
Lawther argued that the trees lost on Sides property were better described as vegetation, which was cut for a survey line.
If the sewer line planned jointly by the city and county becomes a reality and is partly located on Sides property, Lawther said, the city will purchase an easement from Sides, and the entire area will be completely cleared of vegetation for a buried sewer pipe.
It would make Sides claim for damages moot, Lawther added, since he will be compensated fair market value for the entire easement, including the area now in question.
This continuance is trying to make court action unnecessary, Lawther said.
The citys motion for continuance said if a price for the easement could not be agreed on, the case related to the trees could be merged into the easement purchase through condemnation.
Those proceedings would be handled in Superior Court.
Therefore, the motion said, in the interest of judicial economy, it would be best to continue this case until the location of the sewer line is decided.
Overall, the city contends that Small Claims Court shouldnt have jurisdiction in this matter if a sewer line proceeds and easement purchase happens, either through negotiation or condemnation.
If the sewer project ever fell through, then Sides claim for damages would be a Small Claims Court matter, the city acknowledged.
One point that both Sides and the city now agree on is that the city had the statutory authority (before condemnation) for a survey crew to be on Sides property, even without notification.
But even with the authority to be on his property to survey, Sides said, they dont have the right to do damage.
He read a portion of the state statute related to condemnation and noted a passage saying the condemner, which in this case would be the city, shall make reimbursement for damages.
I dont read anywhere in there where I have to go to Superior Court, he said.
As of now, there has been no taking of property, Sides added, but there have been damages. My claim is for damages only.
Contact Mark Wineka at 704-797-4263, or email@example.com.
By Mark Wineka