{ "id": 4180872, "name": "ROBERT DALE RICHARDS and wife, AMELIA P. WEAST, d/b/a, BROAD RIVER PALLETS AND HEAT TREATING, Petitioners v. GLADYS JENNINGS JOLLEY and husband, BOBBY JOE JOLLEY, RHONDA BURKE BARRON, GARY BURKE, JR., MICHAEL E. BURKE, and wife, JILL T. BURKE, JAMES TIMOTHY HORD, and H.H. McKINNEY, Respondent", "name_abbreviation": "Richards v. Jolley", "decision_date": "2010-12-07", "docket_number": "No. COA10-374", "first_page": "436", "last_page": "443", "citations": [ { "type": "official", "cite": "208 N.C. App. 436" } ], "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": "400 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "328 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541066 ], "year": 1991, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0254-01" ] }, { "cite": "195 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "319", "parenthetical": "affirming the trial court's judgment denying a cartway because \" [petitioners are not entitled to condemn a cartway across respondents' lands merely because this might prove the least expensive means for obtaining access to their property\"" }, { "page": "319" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556524 ], "year": 1973, "pin_cites": [ { "page": "624", "parenthetical": "affirming the trial court's judgment denying a cartway because \" [petitioners are not entitled to condemn a cartway across respondents' lands merely because this might prove the least expensive means for obtaining access to their property\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0620-01" ] }, { "cite": "344 S.E.2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4693913, 4704150, 4701941, 4693702 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0557-04", "/nc/316/0557-02", "/nc/316/0557-03", "/nc/316/0557-01" ] }, { "cite": "339 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "49" }, { "page": "49" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520460 ], "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0299-01" ] }, { "cite": "130 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "6" }, { "page": "6" } ], "opinion_index": 0 }, { "cite": "259 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559213 ], "year": 1963, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0062-01" ] }, { "cite": "342 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 548", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4698252 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0548-01" ] }, { "cite": "335 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1985, "pin_cites": [ { "page": "789-90" }, { "page": "789" }, { "page": "789" }, { "page": "789" }, { "page": "789" }, { "page": "789" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524717 ], "year": 1985, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0627-01" ] }, { "cite": "669 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2008, "pin_cites": [ { "page": "576", "parenthetical": "citation and quotation marks omitted" }, { "page": "576" }, { "page": "576" }, { "page": "576" } ], "opinion_index": 0 }, { "cite": "362 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150896 ], "year": 2008, "pin_cites": [ { "page": "573", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0569-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-69", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)", "parenthetical": "emphasis added" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 703, "char_count": 16892, "ocr_confidence": 0.736, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13735240934896203 }, "sha256": "714f9f20aa947943e0c211ca4267ad5c7018613201420b12062b943ff3ff198a", "simhash": "1:734bfd4656d62075", "word_count": 2719 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEPHENS concur." ], "parties": [ "ROBERT DALE RICHARDS and wife, AMELIA P. WEAST, d/b/a, BROAD RIVER PALLETS AND HEAT TREATING, Petitioners v. GLADYS JENNINGS JOLLEY and husband, BOBBY JOE JOLLEY, RHONDA BURKE BARRON, GARY BURKE, JR., MICHAEL E. BURKE, and wife, JILL T. BURKE, JAMES TIMOTHY HORD, and H.H. McKINNEY, Respondent" ], "opinions": [ { "text": "STROUD, Judge.\nPetitioners appeal an order granting summary judgment in favor of respondents. For the following reasons, we affirm.\nI. Background\nOn or about 6 November 2009, the trial court issued an order granting summary judgment in favor of respondents based upon the following determinations it labeled as findings of fact:\n9. The Petitioners purchased their property in 1998 and share a right of way with the Respondents, commonly known as Montgomery Road Extension, which varies in width between twelve and fourteen feet in most areas.\n10. Prior to the Petitioners purchasing the property, the area in which the subject properties are located had been agricultural and residential in nature. The Petitioners were aware of the nature of the property at the time the property was purchased.\n11. Beginning in 1998, the Petitioners began operating a pallet business under the name of Richards\u2019 Pallets. The primary operation of Petitioners\u2019 business at that time was manufacturing and recycling pallets.\n12. Prior to 2005, the Petitioner and his [sic] customers used the right of way for ingress, egress, and regress to and from Petitioners [\u2019] business. A variety of vehicles were used to transport pallets to and from Petitioners\u2019 business, including cars, pickup trucks, trucks with attached trailers, boxed trucks, flatbed trucks, and straight trucks.\n13. The use of the right of way substantially increased noise and traffic along the existing right of way. As a result, the Respondent Bobby Jolley placed speed limit signs and signs reminding travelers that children were playing.\n14. Some time in 2005, the Petitioners] purchased a \u201cheat treater\u201d for purposes of treating pallets in compliance with federal law.\n15. The Petitioners experienced an increase in business and traffic flow as a result of his [sic] new heat treating service.\n16. The Petitioners attempted to bring eighteen wheelers (i.e., tractor trailers) to Petitioners!\u2019] business, but the right of way proved to be too narrow to facilitate tractor trailers.\n17. Sometime in 2005, fencing was replaced along the right of way and Petitioners felt the right of way was being interfered with by some of the Respondents. An action was filed in Superior Court by the Petitioners regarding this incident, but the action was subsequently dismissed through arbitration.\n18. Since 2005 when the heat treater was purchased, the Petitioner and his [sic] customers have continued to use the right of way for ingress, egress, and regress to and from Petitionersf] business. A variety of vehicles have continued to be used to transport pallets to and from Petitioners\u2019 business, including cars, pickup trucks, trucks with attached trailers, boxed trucks, flatbed trucks, and straight trucks.\n19. Approximately half of Petitioner\u2019s [sic] business consists of pallets the business manufactures and distributes itself.\n20. Most business for Petitioner\u2019s [sic] heat treating comes by way of pick-up truck, with the remaining business coming in boxed trucks or straight trucks.\nBased upon its findings of fact,.the trial court concluded as a matter of law:\n6. That the Petitioners have failed to sufficiently meet their burden of proving all of the necessary elements for establishing a cartway.\n7. The right of way being used by the Petitioners] since purchasing the property in 1998, commonly known as Montgomery Road Extension, has afforded reasonable alternative access to Petitioners\u2019 property.\n8. The granting of a cartway is not necessary given the access Petitioners currently have with the established right of way. Petitioners appeal.\nII. N.C. Gen. Stat. \u00a7 136-69(a)\n\u201cOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted). Entitlement to a cartway is governed by N.C. Gen. Stat. \u00a7 136-69(a), which provides as follows:\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 the working of any quarries, mines, or minerals, or the operating of any industrial or manufacturing plants, or public or private cemetery, 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(a) (2007).\nOur Court has determined that in order to be entitled to a cartway pursuant to N.C. Gen. Stat. \u00a7 136-69, the petitioner must show\nproof 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. N.C. Gen. Stat. 136-69 infringes on the rights of private property owners and must be strictly construed. Thus, a proposed cartway may not be approved simply because it is more convenient or less expensive than alternative outlets to a public road available for use by petitioner. To obtain a cartway alternative outlets must be shown to be inadequate.\nCampbell v. Connor, 77 N.C. App. 627, 629, 335 S.E.2d 788, 789-90 (1985), aff\u2019d per curiam, 316 N.C. 548, 342 S.E.2d 391 (1986).\nOn appeal, petitioners present two main arguments which are somewhat contradictory. Petitioners first argue that there are genuine issues of material fact and thus the trial court erred in granting summary judgment in favor of respondents; petitioners then argue that there are no genuine issues of material fact and thus summary judgment should have been granted in petitioners\u2019 favor. The trial court\u2019s order includes findings of fact, and the parties essentially agree that there is no issue of fact as to the matters stated by the trial court. In fact, both parties moved for summary judgment on the basis that there is no genuine issue of material fact; instead, the parties differ on the application of the controlling legal principles to the undisputed facts. Thus, although petitioners have \u201clabeled\u201d two separate arguments within their brief, they are actually arguing only that the trial court erred in its determination that they are not entitled to a cartway because the undisputed facts establish that summary judgment should have been granted in their favor. However, respondents do argue that there is some minor dispute as to the facts regarding the use of the petitioners\u2019 land, so we will first address this issue.\nA. Purpose of Land Use\nIn order to be entitled to a cartway, petitioners must show they are\nengaged 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 taking action preparatory to the operation of any such enterprises!)]\nN.C. Gen. Stat. \u00a7 136-69(a) (emphasis added).\nIn their verified amended petition for a cartway petitioners allege that their \u201cuse of their property is industrial and/or manufacturing in nature.\u201d Respondent Bobby Joe Jolley filed an affidavit in which he stated that \u201c[t]he primary operation of Petitioners\u2019 business at. . . [its inception] was manufacturing and recycling pallets.\u201d Mr. Jolley went on to state that \u201c[approximately half of Petitioner\u2019s [sic] business consists of pallets the business manufactures and distributes itself.\u201d Respondent Mr. Gary Burke, Jr. also filed an affidavit and made the same statements as Mr. Jolley regarding the nature of petitioners\u2019 business on the land at issue. In respondents\u2019 brief in support of their motion for summary judgment, respondents state, \u201c[a] substantial amount of Petitioners\u2019 business continues to be pallet manufacturing which can be done by straight trucks.\u201d Therefore, petitioners and respondents agree that petitioners\u2019 business involves \u201cmanufacturing,\u201d so \u201cthere is no genuine issue as to any material fact[,]\u201d In re Will of Jones at 573, 669 S.E.2d at 576, as to the nature of petitioners\u2019 business.\nHowever, respondents contend that \u201cPetitioners!\u2019] small unincorporated business could hardly be considered a plant.\u201d Essentially, respondents argue that the term \u201cplant\u201d requires a manufacturing operation of a certain unspecified size which is larger than petitioners\u2019 business. N.C. Gen. Stat. \u00a7 136-69 does not contain any definition of the word \u201cplant,\u201d but in common usage a \u201cplant\u201d is defined as \u201cthe land, buildings, machinery, apparatus, and fixtures employed in carrying on a trade or an industrial business].]\u201d Merriam-Webster\u2019s Collegiate Dictionary 948 (11th ed. 2005). The definition of the word \u201cplant\u201d in this context does not include any qualification as to size of the operation. See id. Thus, \u201cPetitioners]\u2019] small unincorporated business],]\u201d which respondents acknowledge \u201cmanufactures\u201d pallets, is a \u201cplant.\u201d See id. The trial court properly concluded that petitioners are \u201centitled to a judgment as a matter of law],]\u201d In re Will of Jones at 573, 669 S.E.2d at 576, as to the first element for entitlement to a cart-way as \u201cthere is no genuine issue as to any material fact],]\u201d id., that \u201cthe land in question is used for one of the purposes enumerated in the statute,\u201d Campbell at 629, 335 S.E.2d at 789, specifically, a \u201cmanufacturing plant]].\u201d N.C. Gen. Stat. \u00a7 136-69(a).\nB. Adequate Access or Adequate Means of Transportation\nIn order for their petition for a cartway to be granted, petitioners must also show that \u201cthe land is without adequate access to a public road or other adequate means of transportation affording necessary and proper ingress and egress].]\u201d Campbell at 629, 335 S.E.2d at 789. \u201c]A]dequate\u201d has been defined as \u201csufficient for a specific requirement],] . . . barely sufficient or satisfactory [or] . . . lawfully and reasonably sufficient].]\u201d Merriam-Webster\u2019s Collegiate Dictionary 15. Our Supreme Court has also determined that\n[t]here is no material difference ... in requiring petitioners to show they have no \u2018adequate means of transportation affording necessary and proper means of ingress and egress\u2019 and in requiring them to show that a cartway is \u2018necessary, reasonable and just.\u2019 The difference is only in the approach to the question \u2014 the former has a negative and the latter an affirmative approach.\nCandler v. Sluder, 259 N.C. 62, 68, 130 S.E.2d 1, 6 (1963). Thus, \u201cadequate access\u201d or \u201cadequate means of transportation],]\u201d Campbell at 629, 335 S.E.2d at 789, is merely access or a means of transportation that is \u201csufficient],]\u201d \u201cbarely sufficient or satisfactory\u201d or \u201clawfully and reasonably sufficient].]\u201d Merriam-Webster\u2019s Collegiate Dictionary 15. Furthermore, if petitioners already have \u201cadequate access\u201d or \u201cadequate means of transportationf,]\u201d Campbell at 629, 335 S.E.2d at 789, then a cartway is not \u201cnecessary, reasonable and just.\u201d Id.\nPetitioners do not deny that they have access or means of transportation to their land but instead contend that the access or means of transportation is not \u201cadequate\u201d for \u201cnecessary and proper ingress and egress\u201d because of the type of business they conduct and the scope of the business they allege that they have the potential to conduct, if they had better access. See id. Petitioners contend that we must look at the context of their claim as a pallet business in order to determine if the access or means of transportation is \u201cadequate[.]\u201d Petitioners then direct our attention to numerous other pallet businesses which use tractor trailers.\nAlthough our Courts have considered the nature of the use of the property in making the determination as to \u201cadequate\u201d access, prior cases have not determined that cartway petitioners are entitled to ideal access or access identical to that of other similar businesses; in fact, our Courts have found \u201cadequate access\u201d and \u201cadequate means of transportation\u201d for \u201cnecessary and proper ingress and egress\u201d when the route was merely temporary in nature or more costly than a cartway. Id; see Turlington v. McLeod, 79 N.C. App. 299, 305, 339 S.E.2d 44, 49 (affirming the trial court\u2019s judgment denying a petition for a cartway because \u201cthe facts found support the judge\u2019s conclusion that petitioner has failed to establish that he does not have other reasonable means of access. Petitioner presently has permission to use the Fred McLeod Road which he has been using, along with the road he built over Harry Matthews\u2019 land, to get to his land. The fact that such permission may be temporary in nature, and may be withdrawn at some future time, is not relevant to our decision. Petitioner is not entitled to condemn a cartway if he presently has access to a public road.\u201d), disc. review denied, 316 N.C. 557, 344 S.E.2d 18 (1986); Taylor v. Askew, 17 N.C. App. 620, 624, 195 S.E.2d 316, 319 (1973) (affirming the trial court\u2019s judgment denying a cartway because \u201c [petitioners are not entitled to condemn a cartway across respondents\u2019 lands merely because this might prove the least expensive means for obtaining access to their property\u201d). Petitioners\u2019 access, which enables them to conduct business in every way desired except for the use of tractor trailers, is \u201cadequate.\u201d See Turlington at 305, 339 S.E.2d at 49; Taylor at 624, 195 S.E.2d at 319. The trial court\u2019s determination that petitioners were not entitled to a cartway was therefore proper considering the undisputed facts as to the nature of petitioners\u2019 access; the fact that petitioners may not be able to use one preferred mode of transportation does not demonstrate, as a matter of law, that petitioners lack \u201cadequate access to a public road or other adequate means of transportation affording necessary and proper ingress and egress[.]\u201d Campbell at 629, 335 S.E.2d at 789. Accordingly, petitioners have failed to meet the requirements for a cartway pursuant to N.C. Gen. Stat. \u00a7 136-69(a). See id.\nC. Cartway is Necessary, Reasonable, and Just\nWe need not address the last requirement for entitlement to a cartway as our Supreme Court has determined that there is no difference between the second and third requirements of the cartway statute, N.C. Gen. Stat. \u00a7 136-69(a). See Candler at 68, 130 S.E.2d at 6.\nIII. Conclusion\nAs the trial court correctly determined that respondents were \u201centitled to a judgment as a matter of law[,]\u201d In re Will of Jones at 573, 669 S.E.2d at 576, because petitioners were unable to show that they are entitled to a cartway pursuant to N.C. Gem'Stat. \u00a7 136-69(a), we affirm the trial court order granting summary judgment in favor of respondents.\nAFFIRMED.\nChief Judge MARTIN and Judge STEPHENS concur.\n. \u201cWe note that ordinarily findings of fact and conclusions of law are not required in the determination of a motion for summary judgment, and if these are made, they are disregarded on appeal.\u201d Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 261, 400 S.E.2d 435, 440 (1991).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Law Offices of Travis S. Greene, PC, by Travis S. Greene, for petitioner-appellants.", "King Law Offices, PLLC, by John B. Crotts, for respondentappellees." ], "corrections": "", "head_matter": "ROBERT DALE RICHARDS and wife, AMELIA P. WEAST, d/b/a, BROAD RIVER PALLETS AND HEAT TREATING, Petitioners v. GLADYS JENNINGS JOLLEY and husband, BOBBY JOE JOLLEY, RHONDA BURKE BARRON, GARY BURKE, JR., MICHAEL E. BURKE, and wife, JILL T. BURKE, JAMES TIMOTHY HORD, and H.H. McKINNEY, Respondent\nNo. COA10-374\n(Filed 7 December 2010)\nHighways and Streets\u2014 cartway \u2014 business with existing access\nThe trial court correctly granted summary judgment for respondents in a cartway proceeding where petitioners operated a small unincorporated pallet business on the property and contended that the access they had was not adequate for their business or for future growth. Although the definition of industrial plant in the context of a cartway proceeding does not exclude petitioners\u2019 small business, cartway petitioners are not entitled to ideal access.\nAppeal by petitioners from order entered 6 November 2009 by Judge Laura J. Bridges in Superior Court, Rutherford County. Heard in the Court of Appeals 11 October 2010.\nLaw Offices of Travis S. Greene, PC, by Travis S. Greene, for petitioner-appellants.\nKing Law Offices, PLLC, by John B. Crotts, for respondentappellees." }, "file_name": "0436-01", "first_page_order": 460, "last_page_order": 467 }