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Wednesday, 26 September 2012 12:33

No way: Gaining legal access to landlocked tracts can get murky in Western North Carolina

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Alice Parker Watty can’t get to her house.

The only driveway to her front door crosses her neighbor’s land, and suddenly they don’t want her using it anymore. Watty said she has driven on and maintained the driveway for 19 years.

But recently, Watty found herself in the midst of a lawsuit for trespassing on her neighbor’s property.

 

“I have no access to my property,” said Watty, an enrolled member of the Eastern Band of Cherokee Indians. “That is the only way I have to get to my home.”

Watty brought her greviances to Cherokee tribal council earlier this month to ask for help securing a right-of-way to her property, which previously belonged to her mother.

“I need my driveway to get to my house,” Watty said.

Watty is one of many people in the mountains who find themselves without a way to access their home when they are suddenly barred from a right-of-way they historically used.

The concept is likely foreign to the majority of Americans who live in suburbs, where neat rows of houses line the streets, each with their own driveway.

But, that’s neighborhoods, which have been meticulously laid out and constructed. In rural parts of Western North Carolina, when you start delving into family-owned property that has been passed down and slowly parceled out over the generations, getting to a piece of property without crossing through someone else’s land can sometimes be impossible.

Generations before, the family patriarch owned a large tract of land and then spilt it amongst his progeny. In many cases, there was not even a will recording the separation of the property, let alone a legally recorded right-of-way that gives one property owner permission to travel over their neighbor’s land to reach their own. It didn’t matter. Everyone was family.

“Especially among family members, you would never think much about right-of-ways,” said Sylva attorney Jay Coward, who specializes in real estate law.

The heir who got stuck with the slice of the property that sat squarely in the middle of a larger family tract would simply travel up a make-shift, unofficial road across a sibling’s plot to get to their house. No problem.

“The roads were there; people traveled them. It just wasn’t that big a deal,” Coward said.

Until the land changed hands, that is. As descendents sold off their portion of the family land to outsiders, the unspoken right-of-ways were no longer guaranteed.

In some cases, a farmer who historically crossed his cousin’s property to reach his fields finds himself blocked by new landowners. In other cases, a developer will buy a landlocked tract with visions of building houses on it, only to learn the lone dirt road leading to the tract crosses private land and its owners don’t like the idea of a subdivision as a neighbor.

“This comes up all the time,” said Gavin Brown, a Waynesville attorney who focuses on residential and commercial real estate transactions, wills and estates. “There are lots of tracts of land up here where you never talked about a right-of-way; you just had one.”

According to Brown, in cases when an individual suddenly stops letting their neighbor have a right-of-way through their property, the real reason is often some other squabble.

“It’s the barking dogs,” Brown said, tossing out a motivation. “It’s really not about using the road; it’s about another issue.”

The dour economy suppressed the number of cases during the last several years, but as the real estate market has improved and more property is changing hands, such cases are again becoming a regular part of real estate-related law.

It is a “very distinct” and increasing conundrum in the mountains, Brown said.

One of the reasons that cases end up in court is because of the value that people place on land, particularly in the mountains where property is a prized asset. Brown quoted one of his law professors: cut off a man’s foot, and the jury will award him $1; take a foot of his land, and a jury will give him $1 million.

“We value land much more than we do human life,” Brown said.

The statement may seem hyperbolic, but it is not without its basis in fact.

Just ask Stedman Hines, a lawyer in Swain County in the 1970s. In 1975, Hines, then 60, was working on a property dispute case. One day, he was walking the property line on Conley’s Creek in Whittier with his client when the opposing party in the case began shooting at them. Hines and his client “died in a hail of gunfire,” according to an Associated Press story from the time.

Although person-to-person property disputes rarely end in murder, Coward agreed that battles over land can get contentious.

“Nations go to war over property,” Coward said.

 

Legal recourse

When people do find themselves in a dispute over right-of-ways, sometimes it can simply be resolved by talking.

“You try to reach an agreement,” Coward said.

Either one party allows the other to use a small section of their property as a thoroughfare free-of-charge or lets the other party purchase a strip of land to use as a right-of-way.

Coward said in some cases, a property owner will impede a developer from using a traditional right-of-way to access a tract simply because they know the right-of-way is worth something — they can get money out of the developers in exchange for formalizing the right-of-way in deed books.

If an arrangement cannot be made, there are three legal arguments left that could convince a judge or jury to grant someone access.

The easiest option, however, is obsolete in modern society. Called a “cart way proceeding,” people can condemn a right-of-way for mining, agriculture and logging purposes. But, as the name suggests, it only allows for a 12 to 16 foot right-of-way — enough room for a cart and horse.

“It basically wouldn’t help you,” Brown said.

The next argument is adverse possession, also known as squatter’s rights. If an individual can prove that they have used and maintained a drive for more than 20 years, then they can claim the land as a legal right-of-way.

The final is for special case — easement by implication. If a property owner has 50 acres and decides to sell the back 25 acres, a right-of-way is implied whether or not it actually appears in the deed. The right-of-way is simply added to the county property books for good.

What a court has deemed a right-of-way, no man can tear asunder. “Once established, it couldn’t be taken away,” Coward said.

If a case gets to the point where a jury is involved, Coward said, the person without right of entry will likely be granted some form of right-of-way.

“Juries are generally reluctant to deny someone access,” Coward said. “I think it is just human nature.”

In Cherokee, the process operates a little differently.

Enrolled members with right-of-way problems must go to Bureau of Indian Affairs’ survey department to see where roads lead and what parcels they would need to go through to get to their land.

If a landowner along the necessary route denies access over their property, the only recourse is to appeal to tribal council. Tribal council has the right to declare a right-of-way.

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