Citizens appeal for help with road dispute

By DAN KEGLEY/Staff

For the second time, Smyth County supervisors have resisted recruitment by a citizens’ group for a battle the board said should be fought for them by an attorney in a courtroom.
Last November and again this week, Sidney Osborne Jr., told the supervisors of a “public right-of-way issue” on Glade Mountain Road south of Atkins. According to Osborne, a landowner holding property along the .3 miles of the road between its intersection with Route 686 and the Jefferson National Forest boundary has effectively closed the road. A sign, photographs of which Osborne provided the supervisors, says “No unauthorized vehicles beyond this point,” and “violators will be prosecuted.”
As of Monday, a gate was installed that closed over the road, Osborne said, claiming three landowners on that section of road are effectively using Glade Mountain as a private reserve.
Osborne, and the 800 people whose signatures he says are on the petition he gave the supervisors, believe the road to be public by prescriptive right of way, a doctrine that said a road is in fact public if used that way for 20 years.
As evidence of the road’s public accessibility, Osborne cited his years of maintaining the road as an employee of the Virginia Department of Transportation. Maps, he said, show the road is Forestry Road 86, and the U.S. Forest Service has records of their maintenance of the road after VDOT stopped.
But complicating the matter is VDOT’s assertion that no document exists showing it ever oversaw, then abandoned the road. “If VDOT abandons or discontinues a road, there is documentation” that for this case cannot be found, said VDOT’s Robert Hurt.
And the forest service has told Osborne they have no actual deeded right-of-way, Osborne said.
As a result, neither VDOT nor the forest service will pursue the matter against the landowner.
“I don’t see how the highway department is involved at all unless they say it’s theirs,” said Supervisor Marvin Perry. “The court is going to have to determine if it is a common right of way. The court would be concerned only with the three living on the road. Taxpayers won’t support going to court. The county doesn’t have a claim.”
County Attorney John Tate said blocking any road or ditch draining any road is a Class I misdemeanor.
A member of the group attending the supervisors’ meeting Tuesday said she thought Tate was the citizens’ attorney. Tate is in fact an attorney in private practice retained to provide legal counsel to the supervisors.
Supervisors chairman Charlie Clark said the board is not authorized to litigate the group’s claim for them.
Tate, however, did provide the group the section of the code of Virginia under which the group could get a warrant for a misdemeanor road blocking charge against the landowner. He also urged the group to get an opinion from the state attorney general.
“The judge will listen to that more than even to [Commonwealth’s Attorney] Mr. [Roy] Evans,” Tate said.