The 1995 Session of the General Assembly has corrected what has been perceived as a deficiency in our Cartway Statute N.C.G.S. 136-68 et seq. Now owners of certain single family homesteads may be able to establish access under the revised statute and all owners may find the new standards easier to meet. A discussion of the significant changes follows.
G.S. 136-68 now provides that any interested party may appeal the decision of the Clerk of Superior Court for a jury trial de novo on all issues. Prior to amendment the statute merely provided for the right of appeal without right to demand a jury and without specifying what issues were to be heard. Since a trial de novo was specified the latter change probably does not add anything.
G.S. 136-69 incorporates the changes that to the landowner and real estate attorney are probably most significant. The amendment includes a statement of purpose to provide landowners who do not have an easement or right of way of record with a "legal means of obtaining access...". It now offers the benefits of the statute to owners of land used for "single family homestead" consisting of at least seven acres of land where before it only applied to land used for cultivation, timber, mining, industry or as a cemetery. An interesting question arises from the legislatures use of the word "homestead" as opposed to "residence". It could be argued that in order to qualify the owner must be using the homestead for a primary residence but that should be found to be a strained interpretation of legislative intent. In order to establish the right to have a cartway laid off the property owner now only has to show that the land is being used or actions are being taken preparatory to one or more of the listed uses and that there is no public road or "reasonable deeded or documented easement or right of way" leading to the property. The new provisions of this section spell out the manner in which an existing railroad crossing is to be treated and provides that new crossings shall not be established without agreement of the railroad while requiring the railroad to negotiate in "good faith". An important change to this section provides that a "permissive use of a right of way or easement across the land of another shall not be a bar to the establishment of a cartway under this Article" but requires the jury on view to give priority to the previously used path. The damages provisions of the old statute are untouched but the width of the cartway to be laid off has been changed from a minimum of eighteen feet to "not more than 18 feet of travel surface or such other minimum width requested in the petition and found necessary and proper by the court, and not more than 30 feet in width fro cut, fills, and ditches or cableway, chutes and flumes".
G.S. 138-70 had provided for a five year limit on the cartway unless otherwise petitioned for and ordered. Now it will not terminate until the time petitioned for and found necessary and proper by the court.
The Bill as enacted provides that compensation to the landowner for the establishment of a cartway shall be as provided in Chapter 40A Article 4 (Condemnation). It also provides as follows: "Sec. 4. This act is effective upon ratification but sections 2 and 3 shall expire on July 1, 1997. This act applies to actions to establish cartways filled on or after the effective date, but before July 1, 1997." This imposes a sunset on most of the amendments but also creates a question of whether by its terms the statute will be in effect at all after 1997. If the sunset provisions are repealed this ambiguity will be corrected.
In conclusion, these amendments provide an excellent opportunity to clear up nagging access problems for homeowners if they can meet the statutory requirements. It is to be hoped that the sunset provisions will be repealed as well as consideration being given to substituting the word "residence" for "homestead" and to the possibility of eliminating the acreage limitation on such residences in order to reflect the all too common situation where lots have been deeded to persons on the interior of a tract but no access granted.