July 30, 2013

Letter: Doing the right thing: A Haig Mill Lake story

— In 1991, condemnation proceedings began against landowners bordering both sides of Haig Mill Lake and Haig Mill Creek southerly to the North Dalton Bypass for the creation of the Haig Mill Reservoir. All the property owners but one reached a fair compensation agreement for the land that was taken.

Kenneth McBrayer, now deceased and 63 at the time the condemnation proceedings began, couldn’t believe that his land could be taken without his agreement and consent. He would have nothing to do with the legal process, for that, to him, would serve to endorse it.

The city of Dalton’s municipal corporation, Dalton Utilities, through the condemnation proceedings, now owns every piece of land bordering the Haig Mill Reservoir except for Kenneth McBrayer’s 11 acres, which is land locked because Dalton Utilities will not provide access to Kenneth McBrayer’s 11 acres.

At the time, Kenneth McBrayer’s attorney urged his sisters to have him declared incompetent. His sisters could not bring themselves to have their brother declared incompetent when to him he was doing nothing but refusing to allow his land to be taken without his consent. His sisters and their descendants will pay into perpetuity for the actions, or inaction, in this case, of their brother Kenneth McBrayer.

Imagine having 11 acres of land that you could not access, forever, because it is land locked by Dalton Utilities’ properties. Imagine paying property taxes for property you cannot use, or even walk on, and not just for a short time, forever.

As to doing the right thing, Dalton Utilities says the current owner, the Estate of Kenneth McBrayer, can do nothing because the time limit for any legal action has expired based on the statute of limitations. The great inequity here is that the city of Dalton, Dalton Utilities and Whitfield County will benefit from the property taxes and essentially the sole use of the McBrayer 11 acres forever with Kenneth McBrayer’s heirs having no option but to pay the property taxes in hope of someone eventually doing the right thing, or to stop paying the property taxes and let the land be purchased on the Whitfield County Courthouse steps. A list of potential buyers for this property is most likely a short list.

Barbara Boyd


Dalton Utilities responds

A portion of Mr. McBrayer’s property was acquired through a condemnation action filed Jan. 22, 1991. During the hearing in this matter, Mr. McBrayer contended that the taking of his property was not for a public use and that his property was not needed for that use. It was determined by the court that the property was for a proper public purpose and was necessary for that purpose. Mr. McBrayer asked for a jury trial to determine the amount of just and adequate compensation to be awarded and also filed an exception to the initial ruling on the condemned property. On April 3, 1991, the Superior Court entered its judgment and denied Mr. McBrayer’s exception to its previous ruling. On March 23, 1994, the Court dismissed Mr. McBrayer’s appeal. The final judgment has not been appealed or modified.

The claims by Mr. McBrayer’s family for an easement of access and for damages for impairment of his access are barred by the final condemnation judgment. Mr. McBrayer’s family members, through different attorneys, have made several prior demands over the last decade for an easement of access and for damages for impairment of access to Mr. McBrayer’s property. Because there is no legal basis for granting an easement of access, Dalton Utilities has refused these demands.

Apart from the legal issues involved, Dalton Utilities cannot allow open access to the water supply contained in the Haig Mill Reservoir due to very important security concerns. The importance of security for water supply has increased considerably since Sept. 11, 2001. The Haig Mill Reservoir is not a flood containment lake but rather a small body water supply for the residents of Dalton that would be easily subject to contamination if public access were to be allowed. This concern is one of the primary reasons why public use of the reservoir for recreation has not been allowed.

In every discussion with Mr. McBrayer and the representatives of his estate, Dalton Utilities has offered to purchase the 11 acres at fair market value. This offer still stands.