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legaleagle
legaleagle, Lawyer
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Experience:  Practicing Attorney for 10 years
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is North Carolina General Statute 136-68 the proceedure to

Customer Question

is North Carolina General Statute 136-68 the proceedure to get a right-of-way to residential property over land of a stranger when no Grantor/Grantee relationship exists; and is the term "cartway" synonymous with residential street?
Submitted: 5 years ago.
Category: Real Estate Law
Expert:  legaleagle replied 5 years ago.
Actually all that was sunsetted was the changes made in 1995 so that in 1997 the language reverts to the language before the 1995 changes. So it still applies to residential use because that was the meaning it has had for the last 200 years it was in existance. Cartway is not synoymous with residential street but more like a driveway for your use and your guests use to get to landlocked land. So yes you can sue that law to discontinue the cartway.
Customer: replied 5 years ago.
I don't understand your last statement "So yes you can sue that law to discontinue the cartway", since I am considering the use of that statute to petition for a street( right-of-way) to a landlocked lot in a subdivision. It would be helpful to read that 1995 and 1997 versions of the law to better understand what was intended during that period.   
Expert:  legaleagle replied 5 years ago.

I meant to say you can "use" the law with regard to residential cartways. Below is the bill from 1995 that shows the language in use from 1995 to 1997. The current version is the 1997 version.,

 

1995 N.C. ALS 513; 1995 N.C. Sess. Laws 513; 1995 N.C. Ch. 513; 1995 N.C. HB 545
BILL TRACKING SUMMARY FOR THIS DOCUMENT

SYNOPSIS: AN ACT TO BROADEN THE LAW PROVIDING FOR THE ESTABLISHMENT OF CARTWAYS.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

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To view the next section, type .np* TRANSMIT.
To view a specific section, transmit p* and the section number. e.g. p*1
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The General Assembly of North Carolina enacts:

[*1] SECTION 1. G.S. 136-68 reads as rewritten:

"Section 136-68. Special proceeding for establishment, alteration or discontinuance of cartways, etc.; petition; appeal.

The establishment, alteration, or discontinuance of any cartway, church road, mill road, or like easement, for the benefit of any person, firm, association, or corporation, over the lands of another, shall be determined by a special proceeding instituted before the clerk of the superior court in the county where the property affected is situated. Such special proceeding shall be commenced by a petition filed with said clerk and the service of a copy thereof on the person or persons whose property will be affected thereby. From any final order or judgment in said special proceeding, any interested party may appeal to the superior court for [A> A JURY <A] trial de novo [A> ON ALL ISSUES INCLUDING THE RIGHT TO RELIEF, THE LOCATION OF A CARTWAY, TRAMWAY OR RAILWAY, AND THE ASSESSMENT OF DAMAGES. <A] [D> and the <D] [A> THE <A] procedure established under Chapter [D> 40, <D] [A> 40A, <A] entitled 'Eminent Domain,' shall be followed in the conduct of such special proceeding insofar as the same is applicable and in harmony with the provisions of this section."

[*2] SEC. 2. G.S. 136-69 reads as rewritten:

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

[D> If <D] [A> 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 <A] 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, [A> OR THE USE OF LAND AS A SINGLE-FAMILY HOMESTEAD, <A] or taking action preparatory to the operation of any such enterprises, to which there is leading no public [D> road <D] [A> ROAD, REASONABLE DEEDED OR DOCUMENTED EASEMENT OR RIGHT-OF-WAY TO A PUBLIC ROAD, <A] 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 [D> the preceding section (G.S. 136-68), and if it shall <D] [A> G.S. 136-68. SHOULD IT <A] 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 [D> less <D] [A> MORE <A] than 18 feet [D> in width, <D] [A> 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 <A] or cableways, chutes, and [D> flumes, and <D] [A> 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 <A] assess the damages the owner or owners of the land crossed may sustain thereby, 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> 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. <A] "

[*3] SEC. 3. G.S. 136-70 reads as rewritten:

"Section 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 [D> party: Provided, that all cartways, tramways, or railways established for the removal of timber shall automatically terminate at the end of a period of five years, unless a greater time is set forth in the petition and the judgment establishing the same. <D] [A> 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. <A] "

[*3a] SEC. 3a. 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.

[*4] 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 filed on or after the effective date, but before July 1, 1997.

In the General Assembly read three times and ratified this the 29th day of July, 1995.

HISTORY:
Approved July 29, 1995

SPONSOR:
Brown

 

§ 136-68. Special proceeding for establishment, alteration or discontinuance of cartways, etc.; petition; appeal

The establishment, alteration, or discontinuance of any cartway, church road, mill road, or like easement, for the benefit of any person, firm, association, or corporation, over the lands of another, shall be determined by a special proceeding instituted before the clerk of the superior court in the county where the property affected is situated. Such special proceeding shall be commenced by a petition filed with said clerk and the service of a copy thereof on the person or persons whose property will be affected thereby. From any final order or judgment in said special proceeding, any interested party may appeal to the superior court for a jury trial de novo on all issues including the right to relief, the location of a cartway, tramway or railway, and the assessment of damages. The procedure established under Chapter 40A, entitled "Eminent Domain," shall be followed in the conduct of such special proceeding insofar as the same is applicable and in harmony with the provisions of this section.

1879, c. 82, s. 9; Code, s. 2023; Rev., s. 2683; C.S., s. 3835; 1931, c. 448; 1995, c. 513, s. 1.

Customer: replied 5 years ago.
I have an important interruption, but I will Accept your answer as soon as I can process the PAYPAL account.   Thanks for your help.                 Kind Regards    Customer
Expert:  legaleagle replied 5 years ago.
Okay, Thank you.
Customer: replied 5 years ago.
After reading the N. C. Bill and statutes, not being a lawyer, I can not say with certainity that the "cartway" Proceedure is applicable to residential property except it does address "persons" with access problems as well as "firms, associations, corporations, etc.;I need a more positive link identified that insures residential application since a local lawyer says it does not. Does being a Texas lawyer make it difficult for you to deal with North Carolina issues?               Thank you for all your help. I am back to finish this and will have time to process the PAYPAL pro0ceedure.   Kind Regards               Customer
Expert:  legaleagle replied 5 years ago.

If your attorney does not advise using the cartway law then he should merely use an easement by necessity which is definitely for landlocked residential property. Below is case law.

 

"Although easements must generally be created in writing, courts will find the existence of an easement by implication under certain circumstances. J. Webster, Real Estate Law in North Carolina, [**863] § 280 at 346 (1971). HN1Go to the description of this Headnote.Easements are implied in two basic situations. In the first, an "easement by necessity" may be found, typically when land becomes [***6] landlocked after a sale or transfer. " Knott v. Washington Housing Authority, 70 N.C. App. 95

legaleagle, Lawyer
Category: Real Estate Law
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Customer: replied 5 years ago.
I can not afford an attorney, and statute 136-68 is a petition that does not require litigation, so that is the best way to go; but I need to confirm that it is applicable to residential property over the land of a stranger, where there is no Grantor/Grantee relationship; therefore the question remains as to the original question. Also, the legislation says that Sections 2&3 shall expire on july 1 , 1997....that seems to eliminate 136-69 and 136-70 which the lawyer says has to be included with 136-68.   PUZZLED and need help.    123jacbee
Expert:  legaleagle replied 5 years ago.
Your option is to sue for an easment since you did not fall in the time frame to use the cartway law. Since you did not file your action before 1997 you have to sue for an easement.
Customer: replied 5 years ago.
I am confused by your earlier ststement that the law has been in effect for 200 years, and was intended for residential matters from the begining. What resource supported that declaration? Now you imply that the law has expired, and I will have to sue for a right-of- way to a landlocked lot in a subdivision.
Customer: replied 5 years ago.
Since there is two conflicting answers to my original question, I need more information to resolve my original matter of concern.                     Kind Regards      123jacbee
Expert:  legaleagle replied 5 years ago.
Sorry for the delay. I have a hearing today so I will get back to you this afternoon or this evening, I promise. Thank you for your understanding.
Expert:  legaleagle replied 5 years ago.


This is the change made to the law in HB(NNN) NNN-NNNN The change to remove the residential component after 1997 is because the cartway law uses the state's eminent domain rights and the state decided it should not be used for residential purposes. So you will have to get a private easement from any landlord you need to cross to get to a road due to the changes in this law. The information I read was explaining why they made the changes in 1995, I thought it was general, so it only applied for the 2 years the law was changed.

NOTICE:
[A> UPPERCASE TEXT WITHIN THESE SYMBOLS IS ADDED <A]
[D> Text within these symbols is deleted <D]

"Section 136-68. Special proceeding for establishment, alteration or discontinuance of cartways, etc.; petition; appeal.

The establishment, alteration, or discontinuance of any cartway, church road, mill road, or like easement, for the benefit of any person, firm, association, or corporation, over the lands of another, shall be determined by a special proceeding instituted before the clerk of the superior court in the county where the property affected is situated. Such special proceeding shall be commenced by a petition filed with said clerk and the service of a copy thereof on the person or persons whose property will be affected thereby. From any final order or judgment in said special proceeding, any interested party may appeal to the superior court for [A> A JURY <A] trial de novo [A> ON ALL ISSUES INCLUDING THE RIGHT TO RELIEF, THE LOCATION OF A CARTWAY, TRAMWAY OR RAILWAY, AND THE ASSESSMENT OF DAMAGES. <A] [D> and the <D] [A> THE <A] procedure established under Chapter [D> 40, <D] [A> 40A, <A] entitled 'Eminent Domain,' shall be followed in the conduct of such special proceeding insofar as the same is applicable and in harmony with the provisions of this section."

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

[D> If <D] [A> 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 <A] 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, [A> OR THE USE OF LAND AS A SINGLE-FAMILY HOMESTEAD, <A] or taking action preparatory to the operation of any such enterprises, to which there is leading no public [D> road <D] [A> ROAD, REASONABLE DEEDED OR DOCUMENTED EASEMENT OR RIGHT-OF-WAY TO A PUBLIC ROAD, <A] 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 [D> the preceding section (G.S. 136-68), and if it shall <D] [A> G.S. 136-68. SHOULD IT <A] 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 [D> less <D] [A> MORE <A] than 18 feet [D> in width, <D] [A> 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 <A] or cableways, chutes, and [D> flumes, and <D] [A> 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 <A] assess the damages the owner or owners of the land crossed may sustain thereby, 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> 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. <A] "

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 filed on or after the effective date, but before July 1, 1997.

 

Customer: replied 5 years ago.
I hate to beat a dead horse, but I need to know what resource was used to support your statement that "So it still applies to residential use because that was the meaning it had for the last 200 years it was in existance". I can use that resource reference in my studies and not hold you accountable, and I assume you did not fabricate that on your own. But if you did I need to know. furthermore, J. Webster's book "REAL ESTATE LAW IN NORTH CAROLINA" states "If the Grantor-Grantee relationship is not present and an owner has no access to a public road, his remedy is to proceed under the statutory provisions for the establishment of a "CARTWAY", NC general statute 136-68 and 136-69.;that being part of #15-13 in the book that discusses RIGHTS IN THE LANDS OF OTHERS, EASEMENTS AND PROFITS. Kind Regards   123jacbee
Expert:  legaleagle replied 5 years ago.
"75 N.C.L. Rev. 1943" It was a NC law reveiw article which spoke about the increased use of cartway to residential reasons in 1995..
Customer: replied 5 years ago.
My network interface card in my computer failed around noon on the 13 of june ,just after I replyed to you that morning; therefore I have been unable to receive from anyone or send any messages. Thank you for your reply. Sorry about the delay in acknowledging your answer. I hope that closes my study on the subject; but I need to read that reference you gave me before I know for sure. Thought you deserved to know what was going on here. The lawyer I mentioned earlier was just another source input for my study; the one that said the law had expired. I am still reading that 1995 law, trying to come to a conclusion of my own.   Thank you for all your help.     Kind Regards     Customer   06/15/2009

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