Cartway Case Goes to Court of Appeals

By | October 30th, 2012

One of the oldest ways for a landlocked property owner to gain access to his or her property is through something North Carolina defines as cartway. N.C. Gen. Stat. § 136-69 allows a landowner who has no reasonable access to his property to file a petition before the Clerk of Superior in order to seek a cartway for his or her benefit over the lands of his neighbors for certain limited purposes. N.C. Gen. Stat. 136-69. However, when the grant of cartway infringes on the rights of private property owners the statute that permits it must be “strictly construed.” See Campbell v. Connor, 77 N.C. App. 627, 335 S.E. 2d 788 (1985); Taylor v. Askew, 17 N.C. App. 620, 622, 195 S.E. 2d 316, 317 (1973). For a landowner to be entitled to a cartway, all of the following three elements must be satisfied: (1) the land in question is used for one of the purposes enumerated in the statute that permits cartway; (2) the land is without adequate access to a public road or other adequate means of transportation affording necessary and proper ingress and egress; and (3) the granting of a private way over the lands of other persons is necessary, reasonable and just.

This issue came up a few years back when I defended some property owners (“Respondents”) in Rutherford County from neighbors (“Petitioners”) who were attempting to gain a cartway across Respondents’ property. The case ended up being heard before the North Carolina Court of Appeals in Richards v. Jolley, 703 S.E.2d 467 (2010). A brief summary of the facts is as follows: The Petitioners ran a pallet business and shared a right of way with the Respondents. This easement varied between twelve and fourteen feet in width. Prior to the Petitioners purchasing the property, the area in which the subject properties are located had been agricultural and residential in nature and the Petitioners were aware of the nature of the property at the time the property was purchased. The Petitioners and their customers used the right of way for ingress, egress, and regress to and from Petitioners’ business. Due to nature of Petitioners’ business, a variety of vehicles were used to transport pallets to and from Petitioners’ business, including cars, pickup trucks, trucks with attached trailers, boxed trucks, flatbed trucks, and straight trucks. The use of the right of way by Petitioners and their customers has substantially increased noise and traffic along the existing right of way, and caused great inconvenience to the Respondents. The Petitioners experienced an increase in business and traffic flow and attempted to bring eighteen wheelers (i.e., tractor trailers) to Petitioners’ business, but the right of way proved to be too narrow to facilitate tractor trailers. Despite not being able to get tractor trailers to their property, the Petitioners’ were able to be profitable using smaller trucks. Essentially, Petitioners wanted the court to widen the existing right of way or to carve out a new right of way so that tractor trailers could reach their property.

COA The trial court and the Court of Appeals ruled in favor of my clients, the Respondents, and found that Petitioners were not entitled to a cartway. The cartway statute must be strictly construed. The Court should only grant a cartway that infringes on other property owners when a petitioner can establish all three elements to gain this right. In our case, the Petitioners already had a reasonable existing access to a right of way from their property to a public road. Also, there was no evidence that the Petitioners’ request for a cartway goes beyond mere convenience and a desire to increase the profits of their business. A grant of a cartway in our case would have infringed upon the Respondents’ property rights and as a result the petition was properly denied since the Petitioners did not meet the high burden established by N.C. Gen. Stat. § 136-69.