Herron Lane lawsuit dismissed after five years

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'We think it’s better just to let it go.'

By Calen McKinney

Five years after being filed, a lawsuit asking a judge to settle a longstanding controversy about whether Herron Lane is actually a county road has been dismissed for lack of prosecution.

Two Elk Horn residents filed suit against Taylor County Fiscal Court in 2007.

Judge/Executive Eddie Rogers and magistrates James Jones, Ed Gorin, John Gaines and Richard Phillips and former magistrates Milford Lowe and Marshall Caulk were named as defendants, along with Ethyl Cox of Gaddis Ridge Road.

Local attorney Rodger Cox filed the complaint in Taylor Circuit Court on behalf of Lester and Martha Herron of Gaddis Ridge Road.

The complaint stated that a controversy exists over whether Herron Lane, the road on which the Herrons live, is part of the County Road System, and over a mailbox on the Herron property.

“[The] plaintiffs have been accused of blocking a county road with their mailbox,” the complaint stated. “Persons with no legitimate reason have driven on and parked on the road that leads from Gaddis Ridge Road to the Herron house.

“Signs have been placed at the entrance to the road that leads from Gaddis Ridge Road to the Herron house naming it ‘Herron Lane’ and giving the impression that it is a public road.

“The problem has been exacerbated by the fact that the Fiscal Court paved a portion of the road that leads from Gaddis Ridge Road to the Herron house apparently by mistake thinking the road was ‘Herron Road,’ which is a County road in another part of the County.”

The complaint stated the Herrons, the only people living on the road, believe Herron Lane is not a county road.

The Herrons made a formal request to Taylor Count Fiscal Court for magistrates to either declare that Herron Lane is not in the County Road System or remove the road from the County Road System.

“The Taylor Fiscal Court has refused to do either thing,” the complaint stated.

A county road is one that has been formally accepted by the Fiscal Court as part of the County Road System and, as such, will be maintained by the county.

“The road in question has not been formally accepted by Fiscal Court and also is not a public road in the first place, so it is not a County road,” the complaint stated.

Former County Attorney Craig Cox filed an answer and counterclaim to the Herron’s complaint stating that magistrates adopted a map of all county roads in 1991. Herron Lane is included in that map. Magistrates spent more than $13,000 in 2005 to blacktop the road, according to the answer.

“Plaintiffs admit that there is apparently a controversy as evidenced by the [Herrons’] complaint as to whether this road is or is not a county road,” the answer stated.

If it is determined that Herron Lane is not a county road and was not so when it was blacktopped, the defendants say the Herrons have “unjustly received the benefit of substantial improvement to their property at the expense of the County and/or the taxpayers of Taylor County.”

And if Herron Lane is ruled to not be a county road, the counterclaim stated, the county should be entitled to recover the value of those improvements.

The Herrons asked for a judgment declaring that Herron Lane is not a county road. They also wanted an injunction prohibiting Taylor Fiscal Court from erecting signs giving the impression that the road is a county road.

Rogers and the magistrates asked that the Herrons’ complaint be dismissed and that a judge declare the status of Herron Lane.

According to the complaint, Ethyl Cox, also listed as Ethel Cox, who has died since the claim was filed, owned property near the Herrons and was named in the suit to include all interested parties. Court records state that her property was sold to William and Pamela Murphy and David and Frances McDonald and the four were substituted for Cox as defendants in the case.

Magistrates discussed the issue of Herron Lane at numerous meetings in 2007.

After several discussions, Rogers asked if any magistrate wanted to make a motion to remove Herron Lane from the County Road System. None of them did and the issue continued to be discussed but was never settled.

There was little action in the case since it was filed and answered. On Sept. 19, the case was dismissed without prejudice for lack of prosecution.

According to Black’s law dictionary, when a claim is dismissed with prejudice, the plaintiff is not allowed to prosecute it again.

Rogers referred comment on the dismissal to County Attorney John Bertram.

Bertram said he doesn’t know the specifics as to why the claim was dismissed, but has long believed that the county did nothing wrong and had no liability.

On Tuesday, Roger Cox said he and his clients decided that it wasn’t worth the expense and effort to go forward with the claim.

“It looked like a difficult case to make,” he said. “We decided not to pursue.”

Cox said his clients disagree with the county’s position that Herron Lane is in the County Road System. However, he said, proving that could be difficult.

“We think it’s better just to let it go,” Cox said.