North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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June 22, 1977

Subject:

Establishment of Cartway

Requested By:

Bessie J. Cherry Clerk of Superior Court Beaufort County

Question:

Does North Carolina General Statutes 136-68 provide for the establishment of a cartway for ingress and egress to a public highway for a home?

Conclusion:

North Carolina General Statutes 136-68 and 136-69 do not provide for the establishment of a cartway for a home.

North Carolina General Statutes 136-68 and 136-69 provide for the establishment of cartways for ingress and egress to a public highway other intervening lands when there is no reasonable access to lands which are used for the purposes of cultivation, cutting and removing timber, working of any quarries, mines or minerals, operating industrial or manufacturing plants, public or private cemeteries, or for purpose preparatory to such uses.

"The statute itself is in derogation of the right of the adjoining landowner over whose land the cartway passes and must be strictly construed. Warlick v. Lowman, 103 N.C. 122, 9 S.E. 458. The statute enumerates the purposes for which the petitioner's land must be used in order to confer upon the owner the right of a "way of necessity" over another's land and the listing of them excludes other uses not named, the presence of one of those named becoming a condition precedent to the exercises of the right." Brown v. Glass, 229 N.C. 657 at 658.

Thus, the statutes do not authorize the establishment of a cartway over the intervening lands of another for the purpose of egress to the highway for a home, since such use does not come within those enumerated.

Rufus L. Edmisten Attorney General

Nonnie Midgett Associate Attorney