GENERAL ASSEMBLY OF NORTH CAROLINA
1995 SESSION
CHAPTER 513
AN ACT TO BROADEN THE LAW PROVIDING FOR THE ESTABLISHMENT OF CARTWAYS.
The General Assembly of North Carolina enacts:
Section 1. G.S. 136-68 reads as rewritten:
"§ 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. and the The
procedure established under Chapter 40, 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."
Sec. 2. G.S. 136-69 reads as rewritten:
"§ 136-69. Cartways, tramways, etc., laid out; procedure.
If 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 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 the preceding section (G.S. 136-68), and if it
shall 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 less more
than 18 feet in width, 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, 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 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 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."
Sec. 3. 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: 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. 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."
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.
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.
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Dennis A. Wicker
President of the Senate
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Harold J. Brubaker
Speaker of the House of Representatives