THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Wednesday, October 5, 1994 TAG: 9410050559
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY LANE DEGREGORY, STAFF WRITER
DATELINE: OCRACOKE ISLAND LENGTH: Medium: 86 lines
Sally Newell was showering for work Monday morning when she heard the opening burst of a chainsaw outside her bedroom window. Hair still wet, she pulled on some clothes and dashed outside.
The 41-year-old mother of two was determined to save the sprawling, knarred old cedar tree that has caressed their home since they build it more than 20 years ago.
Her son's sixth-grade Boy Scout troop builds forts in its twisted branches. Her husband says the 40-foot foliage was one of the reasons he selected that lot. And at least one coastal expert estimated the cedar took root on this isolated Outer Banks island more than 500 years ago.
With a 62-inch-diameter trunk, the twisted tree certainly is one of Ocracoke's oldest.
``They were out there with a bulldozer and power saw, going to just chop it all down,'' Newell said Tuesday from beneath the cedar's thick, emerald canopy. ``That tree's been there a whole lot longer than any of us.
``It seems like a crime against nature to sacrifice it.''
Desperate to delay the destruction Monday, Newell raced back inside and dialed 911. A sheriff's deputy arrived, but did not want to get involved in the dispute. He told Newell - and her neighbor who had hired the tree trimmers - that they would have to take their battle to court.
Now, lawyers will have to determine who has custody over the tree.
``It seems like a clear-cut case to me,'' said attorney John ``Bo'' Ross Jr., who accepted Newell's case Tuesday for a $1 retainer fee. ``The man who is trying to cut it down has rights to go over the access on Ms. Newell's property. But he has no rights to improve or encroach on it.
``People tend to cut down trees - then ask questions later,'' said Ross, a former member of the state's Coastal Resources Commission who recently moved to Manteo. ``Once that's done, you can fight all the court battles you want to. But you can't put that tree back.''
Newell's father-in-law purchased five lots on this southern barrier island more than 20 years ago. The front lot, on which Newell and her husband built their home, has a 20-foot easement along the western edge. People who own the three properties behind Newell have access to their land through a dirt right-of-way road about half that width.
Land deeds on file at the Hyde County courthouse show the easement as a straight line running perpendicular to Trent Drive. But when Newell's husband and father-in-law cleared the easement in 1974, they curved it slightly to bypass the cedar tree. The dirt drive encroaches on Newell's next-door neighbor's land a by a few feet. But he - and the other neighbors - have never seemed to mind.
``Everyone's always gone around that tree,'' said Newell. ``Those folks can still get to their homes as they always have. The tree - and the road - haven't moved a bit since the houses were built.''
Ron Whitlow has lived on Ocracoke Island for 19 years. Newell said she and her husband helped Whitlow carry lumber when he was building the house behind theirs. But now Whitlow is trying to sell his house.
He wants that tree moved out of the easement.
``I paid for that right-of-way when I bought this house,'' Whitlow said Tuesday. ``But the easement has never been where it should be. I can get to my property, sure. But I have to drive across someone else's land to get there. That's trespassing.''
Whitlow said he didn't mind swerving slightly around the cedar tree when it was just his family driving to their home. But he wants the future owner to be able to enjoy a straight dirt driveway - like the one drawn in the deed books.
``That tree doesn't deserve to be there,'' said Whitlow, who also retained a lawyer to fight the unusual custody case. ``It isn't on the map. And that's the official document.
``I'd rather not have to cut that tree down,'' said Whitlow, who hired the bulldozer and chainsaw crew which reported to work Monday. ``But without a fee-simple permanent easement from the property owner whose land we're using as a driveway, I don't see any other solution.''
Ross said Whitlow has no legal right to remove the tree. An easement grants access to and from property. It does not equate with land ownership.
``I'm going to advise him that he has no right to remove that tree,'' Ross said Tuesday. ILLUSTRATION: Photo
DREW C. WILSON/Staff
Brian, left, and Sally Newell stand in the 500-year-old cedar tree
threatened by a neighbor's attempts to improve an easement. The tree
has a 62-inch-diameter trunk and is one of Ocracoke's oldest.
by CNB