Many landowners face the problem of owning property with no access to a public road. Being a good neighbor often solves this problem. However, disputes over the right to access property are common. This is particularly true when an adjoining property is sold or inherited and the new owner gates existing paths. There are several legal theories that landlocked landowners may be able to use to establish an access to their property. A brief summary of each is below. The outcome of each case is often dependent on the specific facts.
Easements Implied by Necessity. Easements implied by necessity do not appear whenever there is a need for access. A way of necessity arises only when a buyer has no access to the land except over either the seller’s other land or the land of a stranger. In such cases, the law implies a right-of-way to the landlocked land over the seller’s land. If at any time a landowner with road frontage conveyed away a part of his property with no road frontage, there may be an easement implied by necessity. The allowed use of an easement implied by necessity is whatever is reasonably necessary for the benefit of the landlocked tract. The proposed land use is a key factor when determining the scope of the easement. Harvesting timber may be reasonable when residential development is not.
Easements Implied by Prior Use. Easements implied by prior use are similar to easements implied by necessity. Again, there must have been common ownership of the tract with access and the tract that needs access, and a transfer must have separated the ownership. However, in this case, the person seeking the easement must show 1) that before the transfer the prior owner used the portion of the tract with road frontage to benefit the portion without access; 2) that the use was apparent, continuous and permanent, and 3) that the claimed easement is necessary to the use and enjoyment of the new owner’s land.
Easements by Prescription. There are several requirements for easements by prescription. First, there must be continued and uninterrupted use for 20 years. Second, the use must be so open that the owners of the land across which the easement is claimed probably had notice of it. The third element is that there must be a “substantial identity of the easement claimed.” The problem most landowners face is that they have not met the fourth element: the use of the easement must be hostile or adverse. This means that the use of the easement is such that it gives notice that it is being made under a claim of right. There is a presumption that the use was permissive. If the use was by permission, there can be no easement by prescription. Evidence that the person claiming the easement has not helped maintain the road may be used to show that the use was not under a claim of right. In one case in which a landowner was successful in establishing an easement by prescription, the N.C. Court of Appeals said that where the evidence showed that “permission to use the lane had been neither given nor sought, that the plaintiffs performed maintenance required to keep the road passable, and that the plaintiffs used the road for over 20 years as if they had a right to it, the evidence [was] sufficient to rebut the presumption of permissive use and establish that the use was hostile and under a claim of right.”
Cartways. Land is often divided in a manner that leaves some portion of it without any way to establish a right of way to a public road. To ensure that this land does not remain unproductive, North Carolina has had a cartway law since 1798. The person whose land will be burdened by the cartway is entitled to reasonable compensation paid by the petitioner. In effect, a cartway statute delegates the right to use the State's power of eminent domain to a private person or entity. There are only certain uses for which a cartway can be acquired. It is significant that agriculture and forestry are permissible uses and residential development is not. To be entitled to a cartway, a landowner must show three things: 1) that the easement is necessary for cultivating land, cutting timber, quarrying, industrial development, or a cemetery; 2) that there is no public road; and 3) that the cartway is necessary, reasonable and just. If the Clerk of Court is satisfied that the petitioner has met these requirements, the Clerk will appoint three disinterested landowners to lay off the cartway and determine the compensation that the petitioner must pay the respondent for the easement. Any party can then appeal to Superior Court.
Easement cases are very fact specific. Landowners who find themselves in this position should discuss the specific facts of their case with their attorneys.