6.3 Easements: Prescription, Implication, Necessity & Statutory Cartways (G.S. 136-68)

6.3 Easements: Prescription, Implication, Necessity & Statutory Cartways (G.S. 136-68)

An easement is a non-possessory interest in real property that grants the holder the lawful right to use another person's land for a specific, limited purpose (such as ingress and egress, utilities, drainage, or sight distance). In North Carolina, easements represent one of the most critical elements of cadastral retracement. A Professional Land Surveyor (PLS) must understand the legal principles governing express creation, prescriptive ripening, common law implication, and specialized statutory access remedies under the North Carolina Cartway Act (G.S. 136-68 and 136-69).

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|                      EASEMENT TAXONOMY IN NORTH CAROLINA                    |
|                                                                             |
|   [EASEMENT APPURTENANT]                                                    |
|   * Benefits a specific parcel of land (Dominant Tenement).                 |
|   * Burdens a specific parcel of land (Servient Tenement).                  |
|   * Automatically "runs with the land" upon deed conveyance.                |
|                                                                             |
|   [EASEMENT IN GROSS]                                                       |
|   * Benefits a specific person, entity, or utility (no dominant parcel).    |
|   * Commercial easements in gross (power, pipelines, railroads) are         |
|       assignable and inheritable; personal easements in gross are not.      |
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1. Creation and Classification of Easements

Under North Carolina property law, easements are created through four primary mechanisms:

1. Express Grant or Reservation: Created by written instrument complying with the North Carolina Statute of Frauds (G.S. 22-2). Requires formal execution, adequate legal description, words of conveyance, and recording in the Register of Deeds to protect against subsequent purchasers under the Conner Act (G.S. 47-18).
2. Dedication: Created on recorded subdivision maps and accepted by the public or lot owners (see Section 6.4).
3. Prescription: Created through long-term adverse use (20 years) under common law principles.
4. Operation of Law (Implication, Necessity, or Statute): Arising from prior quasi-easements, landlocked severance, or statutory cartway proceedings.

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2. Easements by Prescription in North Carolina

An easement by prescription is the prescriptive acquisition of an incorporeal hereditament (a right of use) across the land of another through long-continued adverse user. Under North Carolina law, the prescriptive period is twenty (20) continuous years (Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974); Potts v. Burnette, 301 N.C. 663, 273 S.E.2d 285 (1981); Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946)).

The Four Prescriptive Elements:

1. Adverse, Hostile, or Under a Claim of Right: The use must be without the owner's permission and under circumstances that assert a right against the servient owner.
2. Open and Notorious: The use must be so visible and continuous that the servient owner has actual or constructive knowledge of the usage.
3. Continuous and Uninterrupted for 20 Years: The user must be continuous over a definite, specific roadway or path without substantial deviation.
4. Substantial Identity of the Easement Way: The prescriptive right is confined strictly to the specific path, corridor, and width historically traveled. The user cannot shift routes across the servient tract (Speight v. Anderson).

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|             THE NORTH CAROLINA PRESUMPTION OF PERMISSIVE USE                |
|                                                                             |
|   GENERAL COMMON LAW PRESUMPTION:                                           |
|   In North Carolina, the law strongly presumes that the use of an unpaved   |
|   roadway, driveway, or path across another's land is PERMISSIVE            |
|   (neighborly accommodation / tacit consent) rather than adverse.           |
|                                                                             |
|   BURDEN OF REBUTTAL (Potts v. Burnette, 301 N.C. 663):                     |
|   The claimant must present clear, affirmative evidence to REBUT the        |
|   presumption of permission by demonstrating:
|   1. Performance of maintenance (grading, graveling, ditching, paving)     |
|      at the claimant's sole expense without asking permission;              |
|   2. Hostile confrontation or explicit assertion of legal right; or         |
|   3. Direct refusal to recognize the servient owner's authority.            |
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[!IMPORTANT] Dickinson v. Pake & Potts v. Burnette Doctrine: Mere long-term use for 20, 30, or 50 years is not enough in North Carolina to establish a prescriptive easement. Without affirmative evidence of adverse acts—such as performing road maintenance, scraping ditches, or paving the roadway under a claim of right—the court will presume the use was neighborly and deny the prescriptive easement.

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3. Easements by Implication and Necessity

North Carolina recognizes two distinct forms of easements implied by law following the severance of a unified tract:

A. Easement Implied from Prior Use (Quasi-Easement)

To establish an easement implied from prior use, the claimant must prove three elements (Oliver v. Ernul, 277 N.C. 591, 178 S.E.2d 393 (1971)):

1. Common Ownership: Unity of title in a single common grantor prior to conveyance.
2. Apparent and Continuous Pre-Existing Use: Prior to severance, the common owner maintained a permanent, obvious, and continuous roadway or utility route across one portion of the property for the benefit of another (quasi-easement).
3. Reasonable Necessity: The continued use is reasonably necessary to the beneficial enjoyment of the conveyed parcel (a lower standard than strict necessity).

B. Easement by Necessity (Common Law Strict Necessity)

An easement by necessity arises when a common grantor conveys a parcel that is completely landlocked, having no access to a public road except over the retained land of the grantor or strangers (Smith v. Moore, 254 N.C. 186, 118 S.E.2d 436 (1961); Broyhill v. Coppage, 79 N.C. App. 221, 339 S.E.2d 32 (1986)).

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|                   COMMON LAW EASEMENT BY NECESSITY CRITERIA                 |
|                                                                             |
|   MANDATORY PREREQUISITES:                                                  |
|   1. Unity of Title: Both dominant and servient parcels were once owned     |
|      by a common grantor in a single unified tract.                         |
|   2. Severance: Grantor severed the unified tract by deed conveyance.       |
|   3. Strict Necessity at Severance: The conveyance immediately landlocked   |
|      the grantee with NO legally enforceable access to any public highway.  |
|                                                                             |
|   DISQUALIFICATIONS:                                                        |
|   * No common grantor in chain of title --> Common law necessity FAILS.     |
|   * Claimant has access over a navigable water body --> Necessity FAILS.    |
|   * Claimant landlocked themselves by selling road frontage --> FAILS.      |
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4. Statutory Cartway Proceedings (G.S. 136-68 & G.S. 136-69)

When a landlocked owner cannot establish a common law easement by necessity (because there is no common grantor in the historical chain of title), North Carolina provides a unique statutory access remedy: The Cartway Act (G.S. Chapter 136, Article 8 & 9).

Qualifying Statutory Land Uses (G.S. 136-69):

Under G.S. 136-69, a cartway is not available for all landlocked properties. The petitioner must demonstrate that the landlocked parcel is currently used, or immediately intended to be used, for at least one of the following statutorily enumerated purposes:

• Cultivation of Land (Farming, crop production, agriculture, pastureland).
• Cutting or Harvesting of Commercial Timber (Forestry, silviculture).
• Working of Quarries, Mines, or Minerals (Stone, gravel, sand extraction).
• Operation of Manufacturing, Industrial, Cemetery, or Water Processing Plants.

[!NOTE] Purely Residential Parcels: Historically, cartway proceedings were strictly restricted to agricultural, timber, and commercial natural resource operations. In modern practice, while agricultural or timber activities remain the primary statutory grounds under G.S. 136-69, several North Carolina counties have local legislative modifications extending cartway access to residential dwellings.

Step-by-Step Statutory Cartway Procedure:

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|               STATUTORY CARTWAY PETITION WORKFLOW (G.S. 136-68/69)          |
|                                                                             |
|   1. SPECIAL PROCEEDING FILED WITH CLERK OF SUPERIOR COURT                  |
|   --> Landlocked owner files formal petition in county of land situs.       |
|   --> Serves summons and petition on all affected adjoining landowners.    |
|                                     │                                       |
|                                     ▼                                       |
|   2. JUDICIAL HEARING BEFORE THE CLERK                                      |
|   --> Clerk determines: (a) Qualifying statutory use (farming/timber/mine); |
|       and (b) Strict necessity (no existing public access).                 |
|                                     │                                       |
|                                     ▼                                       |
|   3. APPOINTMENT OF JURY OF VIEW (3 DISINTERESTED FREEHOLDERS)              |
|   --> Clerk issues order appointing 3 neutral county landowners.            |
|                                     │                                       |
|                                     ▼                                       |
|   4. FIELD LAYOUT & DAMAGE ASSESSMENT                                       |
|   --> Freeholders (with PLS assistance) view land and locate route.         |
|   --> Mandatory Width: NOT LESS THAN 18 FT & NOT MORE THAN 30 FT.           |
|   --> Route must be the least burdensome / least injurious to servient.     |
|   --> Freeholders assess fair market compensation and physical damages.     |
|                                     │                                       |
|                                     ▼                                       |
|   5. REPORT CONFIRMATION, PAYMENT & ESTABLISHMENT                           |
|   --> Freeholders file report; Clerk confirms final cartway order.          |
|   --> Petitioner PAYS full assessed damages and court costs to servient.    |
|   --> Cartway is established as a private way (maintained by petitioner).  |
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Key Cartway Statutory Specifications:

5. Surveying and Mapping Standards for Easements (21 NCAC 56.1604)

When retracing, locating, or platting easements and cartways under 21 NCAC 56.1604 and G.S. 47-30, the Professional Land Surveyor must adhere to strict technical standards:

1. Corridor Boundary Geometries: Easement corridors must be defined by precise geometric ties—either metes and bounds descriptions of the boundary perimeter, or a surveyed centerline with specified offset widths, tied to permanent tract boundary monuments.
2. Ties to Parent Parcels: Plats depicting cartways or new private rights-of-way must show the intersecting property lines of all burdened servient parcels, complete with adjoiner names, deed references, and acreage encumbered.
3. Monumentation Standards: Under 21 NCAC 56.1604, where new permanent rights-of-way or cartway corridors are surveyed, appropriate monuments must be set at centerline points of intersection (PI), points of curvature (PC), points of tangency (PT), or easement corners.
4. Plat Disclaimers: If a surveyor maps an existing dirt trail across private land, the surveyor must label it as a "travelled dirt path" or "existing visual roadway" rather than certifying it as an "easement," unless a recorded instrument or court decree establishing the legal easement is cited on the face of the plat.