{ "id": 8526313, "name": "HARVEY L. DAVIS and wife, BONNIE W. DAVIS, Petitioners v. FORSYTH COUNTY, Respondent", "name_abbreviation": "Davis v. Forsyth County", "decision_date": "1995-02-07", "docket_number": "9421SC7", "first_page": "725", "last_page": "727", "citations": [ { "type": "official", "cite": "117 N.C. App. 725" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 136-68", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "335 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524717 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0627-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-69", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1986, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "102 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621375 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0203-01" ] } ], "analysis": { "cardinality": 330, "char_count": 5215, "ocr_confidence": 0.755, "pagerank": { "raw": 2.9869477538296577e-07, "percentile": 0.8514212604673091 }, "sha256": "ab4dc9944ea400e50817715647a6910a3ec79c9f2e3b6b59bfb962c3f964fb21", "simhash": "1:31fb3fe0e53b7975", "word_count": 862 }, "last_updated": "2023-07-14T20:31:41.091249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "HARVEY L. DAVIS and wife, BONNIE W. DAVIS, Petitioners v. FORSYTH COUNTY, Respondent" ], "opinions": [ { "text": "WYNN, Judge.\nIn September 1985, petitioners, Mr. and Mrs. Davis, purchased approximately 5.45 acres of land in Forsyth County, North Carolina. Afterwards, they discovered that the property was landlocked \u2014 it was not served by any road, path or cartway, public or private, and, there was no legal way onto or out of the property. This made it difficult for the petitioners to cut and sell the timber on the land, as was their intention.\nIn November 1992, the petitioners instituted a special proceeding before the Clerk of Court for Forsyth County seeking to establish cartway rights over the surrounding property owned by Forsyth County. On 2 July 1993, the Clerk found that the property was indeed landlocked and that the petitioners\u2019 intended use was as required under the cartway statute and, therefore, granted their petition to establish a cartway right. Respondent, Forsyth County, appealed the order to Forsyth County Superior Court and moved for dismissal pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Proc\u00e9dure for failure to state a claim upon which relief may be granted. Following a hearing on this matter, the trial court granted respondent\u2019s motion to dismiss. From this order, the petitioners appeal.\nThe petitioners contend that the trial court erred by ruling that they failed to state a claim upon which relief may be granted. Specifically, they argue that a cartway proceeding may be maintained against a county. We agree.\nNorth Carolina law permits a landowner who has no reasonable access to his property to file a petition before the clerk of superior court and seek an easement imposed on the adjoining land to permit access to a public road. Kanupp v. Land, 248 N.C. 203, 102 S.E.2d 779 (1958); N.C. Gen. Stat. \u00a7 136-69 (1986). Section 136-69 states:\nIf 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 taking action preparatory to the operation of any such enterprises, to which there is leading no 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 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.\nN.C. Gen. Stat. \u00a7 136-69 (1986) (emphasis added). Thus, the statute provides that a person is entitled to a cartway right upon proof that: 1) the land in question is used for one of the purposes enumerated in the statute; 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. Campbell v. Conner, 77 N.C. App. 627, 335 S.E.2d 788 (1985).\nIn the subject case, respondent contends that the term \u201cother persons,\u201d as used in the cartway statute, does not include bodies politic such as counties. We, however, are guided by N.C. Gen. Stat. \u00a7 136-68 which provides that \u201cthe procedure established under Chapter 40 entitled \u2018Eminent Domain,\u2019 shall be followed in the conduct of [a special proceeding to establish a cartway right].\u201d Under N.C. Gen. Stat. \u00a7 40A-2 (1984), the successor to Chapter 40, \u201cperson\u201d is defined as \u201ca natural person and any legal entity capable of owning or having interest in land.\u201d In North Carolina, counties are established as legal entities and are empowered by law to acquire land. See N.C. Gen. Stat. \u00a7\u00a7 153A-11 and 153A-158 (1991). We, therefore, find that the term \u201cother persons,\u201d as used in the cartway statute, does include counties.\nReversed.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Isaacson, Isaacson & Grimes, by Henry H. Isaacson and L. Charles Grimes for petitioners-appellants.", "Sapp, Mast & Stroud, by James Keith Stroud for respondent-appellee." ], "corrections": "", "head_matter": "HARVEY L. DAVIS and wife, BONNIE W. DAVIS, Petitioners v. FORSYTH COUNTY, Respondent\n9421SC7\n(Filed 7 February 1995)\nHighways, Streets, and Roads \u00a7 18 (NCI4th)\u2014 cartway proceeding \u2014 claim against county\nA cartway proceeding may be maintained against a county. Although respondent county contended that the term \u201cother persons\u201d as used in N.C.G.S. \u00a7 136-69 does not include bodies politic such as counties, N.C.G.S. \u00a7 136-68 refers to Chapter 40, the successor to which, N.C.G.S. \u00a7 40A-2, includes in its definition of person any legal entity capable of owning or having interest in land. Counties in North Carolina are established as legal entities and are empowered by law to acquire land and \u201cother persons\u201d as used in the cartway statute includes counties.\nAm Jur 2d, Highways, Streets, and Bridges \u00a7\u00a7 6, 340 et seq.\nAppeal by Plaintiff from Order entered 25 October 1993 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 6 October 1994.\nIsaacson, Isaacson & Grimes, by Henry H. Isaacson and L. Charles Grimes for petitioners-appellants.\nSapp, Mast & Stroud, by James Keith Stroud for respondent-appellee." }, "file_name": "0725-01", "first_page_order": 757, "last_page_order": 759 }