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Issue  165  Article  282
Published:  4/1/2009

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Dirt Tales From the Deed Vault - Episode 24
John Dillard, Vice President and Legal Counsel

Wally Wiseacre was a student at the Blackstone School of Law correspondence degree program and had just finished studying about Easements and Access in his Real Property Course.  The section on Cartways caught his attention because his uncle had a piece of land that did not have legal access to it.  Wally, ever the brilliant lawyer wannabe, thought of a solution to his uncle Earl's problem that he just thought was exceptional.  He pulled a copy of the Cartway statute and showed it to his uncle.  It read as follows:

§136-69. Cartways, tramways, etc., laid out; procedure.

(a)       If any person, firm, association, or corporation shall be engaged in the cultivation of any land or the cutting and removing of any standing timber, or the working of any quarries, mines, or minerals, or the operating of any industrial or manufacturing plants, or public or private cemetery, (emphasis added) or taking action preparatory to the operation of any such enterprises, to which there is leading no public road or other adequate means of transportation, other than a navigable waterway, affording necessary and proper means of ingress thereto and egress therefrom...

The part that caught Wally's eye was the sentence that read "private cemetery".  His aunt Dora had passed on several years before and Wally's uncle kept her cremated remains in an urn.  But suppose the uncle designated a portion of the land as a private cemetery and placed aunt Dora's remains on it, wouldn't he then be granted access to this land under this statute?  Uncle Earl would be able to build his new dream house on the property, and, in time, Wally would be the recipient when the uncle went on to be with Dora.

Uncle Earl wasn't born yesterday, and although he respected his nephew's opinion as a student at a prominent correspondence law school, he decided to verify what Wally had told him about setting up a private cemetery.  Sid Smartlawyer listened to Earl and then explained to him that the Cartways granted under the statute were intended to be used only for the purposes designated in the statute.  In other words, a Cartway granted for a private cemetery could only be used for cemetery related purposes, not a residential use as Earl intended.  "But couldn't I build the house and be like a cemetery caretaker" ,Earl had asked.  Sid explained that the problem with that was that he had only one memorial, that of his wife and that hardly constituted a cemetery in the law's eyes.

But Sid was a smart lawyer for a reason.  He had another idea that he wanted to run by Earl.  There was another statute that might help him.  N.C.G.S 136-96.1, titled Special proceeding to declare a right-of-way dedicated to public use provided:

(a) A special proceeding under Article 3, Chapter 1 of the General Statutes may be brought to declare a right-of-way dedicated to public use if:

(1) The landowners of tracts constituting two-thirds of the road frontage of the land abutting the right-of-way in question join in the action;

(2) The right-of-way is depicted on an unrecorded map, plat, or survey;

(3) The right-of-way has been actually open and used by the public; and

(4) Recorded deeds for at least three separate parcels abutting the right-of-way recite the existence of the right-of-way as a named street or road.

Sid explained that they should try and get the neighbors whose property fronted on the old country road to join in a petition before the Clerk of Court to have the road declared a right of way dedicated to public use.  All they would need would be to have the right of way surveyed and then he would check the titles of these other owners to make sure that deeds for three parcels made reference to that old country road in their description. They would also need to get affidavits showing others had used the road but Earl didn't see a problem with that.  Sid promised to get back with Earl in a few days and let him know what he had found out.  In the meantime, Earl would be contacting the neighbors.  Earl left Sid's office feeling better that he might be able to realize his dream of building a new home on property that he had thought was worthless because it didn't have a recorded right of way.


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