The current session of the Legislature is considering House Bill 41 entitled AN ACT TO BROADEN THE LAW PROVIDING FOR THE ESTABLISHMENT OF CARTWAYS. NCGS 136-68 et seq were revised in 1995 and the statutory amendment included a sunset provision that expired June 30, 1997. The current revision under consideration is virtually identical to the previous one. While the 1995 amendments substantially improved the old statute making the bringing of a cartway proceeding easier and narrowing the issues, the amendment left several questions unanswered and in need of clarification.

Under the 1995 amendments, a property owner of a parcel of land seven (7) acres or greater used as a homestead would be entitled to a cartway if there was no record access. Since the amendment did not define the term homestead, it was uncertain as to whether this required the homestead to be the owners’ principal residence. If it were a second home or vacation home, would the owner still be entitled to bring a proceeding? This issue remains in the new bill.

Other questions arose if a large tract owner brought a proceeding under the homestead provision, obtained a cartway, paid the subservient land owner compensation for the cartway and subsequently subdivided the tract of land. The statute gave no guidance as to whether the landowner is required to compensate the subservient landowner for the additional burden on the cartway or even if he is entitled to assign his rights in the cartway to all of his grantees. Additionally, no guidance was given as to whether, if allowed, all subsequent grantees must be conveyed tracts of at least seven acres or more. These issues appear to be partially addressed, at least by implication, in both amendments where they state that "If a cartway is granted for the use of one or more single-family homesteads, each single-family homestead must consist of at least seven acres of land." Clearly, the original proceeding may contemplate a development with multiple parcels consisting of at least seven acres each. Presumably, the jury of view would compensate the servient landowner accordingly. Obviously the revision does not address the petitioners’ right to subdivide after the proceeding is final.

The new §136-70 would provide that "Cartways or other ways established under this Article or heretofore established, may be altered, changed, or abandoned in like manner as herein provided for their establishment upon petition instituted by any interested party." This seems to imply that you could not increase the burden on the servient tenement without approval since it could be fairly categorized as a change or possibly an alteration. Certainly an existing proceeding could be reopened to address a subsequent subdivision of the tract and this would seem to be the prudent alternative for the dominant tenement. Arguably the language would permit the aggrieved holder of the servient tenement to petition for redress after the fact of a subsequent subdivision of the dominant tenement.

Like the prior revision, this cartway amendment provides that a cartway may be awarded if the landowner is merely preparing his property for one of the approved purposes. It would be helpful if the statute gave some guidance as to how long a period of time the land owner can "prepare" the property before the subservient landowner would be able to file a motion in the cause to terminate the cartway. Obviously, a "reasonableness" standard is implied. But, it would avoid unnecessary contention if the statute limited the period of development. Additionally, clarification will be helpful as to whether a landowner acquiring a cartway while in preparation of the property for one of the approved purposes would have the right to assign the cartway to a grantee of the tract prior to completion of the improvements. The statute and annotations do not address whether a cartway is an alienable, appurtenant right or a personal one. Presumably it is alienable, however, a great deal of uncertainty would be eliminated if any future amendment of the cartway statute included provisions addressing the alienability of the cartway rights granted under the order. Any practitioners drafting orders in cartway proceedings would be well advised to address the alienability issues in the order granting the cartway.

It should be noted that the old G.S. 136-69 (b), which provides "Compensation to the landowner for the establishment of a cartway over the property of another shall be as provided in Chapter 40A Article 4 of the North Carolina General Statutes", does not appear to be included in the new revision. The effect of this provision has been to require the jury of view to use condemnation standards of value applicable to government. Presumably this omission would permit the jury of view to award nominal damages in a situation where an existing path has been used for a long period of time and an easement by implication has not been judicially determined.

Title insurance claims resulting from lack of access increased in frequency in recent years. As a result there is a corresponding increase in the reluctance of insurers to insure over lack of record access to land. The typical situation that we see often occurs when a small parcel is conveyed, a home is built without a loan and access is provided over an existing farm road without mention in the deed. Later the owner wishes to sell or finance and the current owner of the intervening land proves to be uncooperative. The proposed amendment should help to provide an expedient and cost effective solution to uninsurable defects of this nature. However the seven-acre requirement for homesteads is a serious limitation in the case of existing lands without adequate legal access. The statute would serve its stated purpose much more effectively if the acreage limitation were reduced in such cases. Seven acres may be a reasonable limitation to control the burden of prospective development but it may all but eliminate the intended benefit for most existing situations.

This amendment has real merit as an aid to real property owners and practitioners for clearing problems even with the limitations and problems discussed above. Informed sources report that the bill has significant opposition and likely will not pass without increased support.

The edited text of the proposed amendment is set out for reference as follows:

The General Assembly of North Carolina enacts:

Section 1. G.S. 136-69 reads as rewritten:

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

In order to ensure that all landowners who do not have a deeded or documented easement or right-of-way to a public road shall have a legal means of obtaining access to that road, 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, or the use of land as a single-family homestead, or taking action preparatory to the operation of any such enterprises, to which there is leading no public road, reasonable deeded or documented easement or right-of-way to a public road, or other adequate means of transportation, other than a navigable waterway, affording necessary and proper means of ingress thereto and egress therefrom, such person, firm, association, or corporation may institute a special proceeding as set out in G.S.136-68. Should it be made to appear to the court necessary, reasonable and just that such person shall have a private way to a public road or watercourse or railroad over the lands of other persons, the court shall appoint a jury of view of three disinterested freeholders to view the premises and lay off a cartway, tramway, or railway of 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 for cuts, fills, and ditches or cableways, chutes, and flumes. If a cartway is granted for the use of one or more single-family homesteads, each single-family homestead must consist of at least seven acres of land. Where there exists a private railroad crossing, that private railroad crossing may be used as part of a cartway established under this Article provided the person, firm, association, or corporation seeking the cartway agrees to share proportionately with other landowners authorized to use the crossing the cost of maintaining the private crossing and to protect and hold harmless the railroad against all liability associated with the crossing, provided the railroad is being operated in a lawful manner at or in the vicinity of the crossing. Except as herein provided for the establishment of a cartway over an existing private railroad crossing, no real estate, right-of-way, easement, leasehold, or other interest in land which has been condemned by a railroad, or has been obtained for a railroad's use as a right-of-way, depot, or station house shall be used for the establishment of a cartway or other use under this Article except by agreement with the railroad. Should a petitioner seeking a cartway request a new railroad crossing, the railroad shall negotiate in good faith the location of the new crossing at the requested location or some other mutually agreeable location. The jury of view shall assess the damages the owner or owners of the land crossed may sustain hereby, and make report of their findings in writing to the clerk of the superior court. Exceptions to said report may be filed by any interested party and such exceptions shall be heard and determined by the clerk of the superior court. The clerk of the superior court may affirm or modify said report, or set the same aside and order a new jury of view. All damages assessed by a judgment of the clerk, together with the cost of the proceeding, shall be paid into the clerk's office before the petitioners shall acquire any rights under said proceeding. Where a tract of land lies partly in one county and partly in an adjoining county, or where a tract of land lies wholly within one county and the public road nearest or from which the most practical roadway to said land would run, lies in an adjoining county and the practical way for a cartway to said land would lead over lands in an adjoining county, then and in that event the proceeding for the laying out and establishing of a cartway may be commenced in either the county in which the land is located or the adjoining county through which said cartway would extend to the public road, and upon the filing of such petition in either county the clerk of the court shall have jurisdiction to proceed for the appointment of a jury from the county in which the petition is filed and proceed for the laying out and establishing of a cartway as if the tract of land to be reached by the cartway and the entire length of the cartway are all located within the bounds of said county in which the petition may be filed. 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. In determining the path of a cartway, tramway, or railway, the jury of view shall give priority to the location of previously used easements or cartways."

Section 2. G.S. 136-70 reads as rewritten:

§ 136-70. Alteration or abandonment of cartways, etc., in same manner.

Cartways or other ways established under this Article or heretofore established, may be altered, changed, or abandoned in like manner as herein provided for their establishment upon petition instituted by any interested party. A cartway established under this Article shall not terminate until the time specified in the petition and as found necessary and proper by the court

Section 3. This act is effective when it becomes law.