I. General Comments - Scope

This article will discuss the various types of access easements and legal theories supporting them, the preparation of the title opinion forms and the title insurance coverage of matters of access. After a discussion of types of access in II, the rest of the items (for example, the title opinion) are discussed in the order they are prepared. Case law governing access title insurance insuring provisions is discussed in VI.

II. Types Of Access Easements

Access to a landowner’s property generally takes one of two forms, either director over an easement. Direct access is available when the property abuts a publicly dedicated street or road. Dedication can occur expressly such as when a right of way is conveyed by a landowner or condemned under the government’s powers of EminentDomain or when a subdivision plat is recorded containing an express offer of dedication by the landowner and an express acceptance by the appropriate governmental authority. It can also occur by implication where a plat is recorded showing roads or streets and the streets are subsequently paved or maintained by the governmental entity having jurisdiction. Recording a plat of subdivision containing streets, etc. constitutes an offer of dedication both private (to the lot owners) and public. "It is well established that when the owner of a tract of land causes to be recorded a map thereof, showing it to be subdivided into lots, with streets, alleys or other roadways giving access from the public highway to such lots, and thereafter sells any such lot and conveys it with a reference in the deed to such map or plat, there is not only a conveyance to the purchaser of the lot of the right to use such streets and have them kept open for his use, but there is also an offer to the public which may be accepted by it. Wofford v. North Carolina State Highway Commission, 263 N.C. 677, 140 S.E.2d 376, cert. den., 382 U.S. 822, 86 S.Ct. 50, 15 L.Ed.2d 67; Steadman v. Town of Pinetops, 251 N.C. 509, 112 S.E.2d 102; Town of Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898; Rowe v. City of Durham, 235 N.C. 158, 69 S.E.2d 171; Green v. Miller, 161 N.C. 25, 76 S.E. 505, 44 L.R.A.,N.S., 231." State Highway Commission v. Thornton, 271 N.C. 227, 156 S.E. 2d 248 (1967).  When such an offer is accepted by paving or by use by the public and maintenance it cannot be withdrawn without the consent of the lot owners and the appropriate unit of government. Nor can it be withdrawn even if unopened if it is reasonably necessary to provide convenient access for owners of lots sold in the subdivision. See Andrews v. Country Club Hills, Inc., 18 N.C. App 6, 195 S.E. 2d 584 (1973). Access over easements may be derived in many ways. An easement may be granted expressly or reserved in the same manner. It may be implied by law or obtained by prescription. Easements by express grant are usually described by metes and bounds or
by reference to ascertainable monuments and may be conveyed standing alone or "together with " the dominant tract. Easements by express reservation are usually reserved at the time of conveyance of the servient tract.
Implied easements are explained concisely in Oliver v. Ernul, 277 N.C. 591, 178 S.E. 2d 393 (1971), where the court quoting the cited sources states " 'A way of necessity arises when one grants a parcel of land surrounded by his other land, or when the grantee has no access to it except over grantor's other land or land of a stranger. In such cases, grantor impliedly grants a right-of-way over his land as an incident to purchaser's occupation and enjoyment of the grant.' 2 Thompson on Real Property, supra, Sec. 362; Roper Lumber Co. v. Cedar Works, 158 N.C. 161, 73 S.E. 902 (1912); Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890 (1961); Smith v. Moore, 254 N.C. 186,
118 S.E.2d 436 (1961). 'When one part of an estate is dependent of necessity, for enjoyment, on some use in the nature of an easement in another part, and the owner conveys either part without express provision on the subject, the part so dependent carries or reserves with it an easement of such necessary use in the other part. * * * (P)roperty owners cannot claim a right-of-way of necessity over the lands of a stranger to their title.  However, it is not necessary that the person over whose land the way of necessity is sought be the immediate grantor, so long as there was at one time common ownership of both tracts.' 2 Thompson on Real Property, supra (Grimes ed. 1961), Sec. 362; 25 Am.Jur.2d, Easements and Licenses Secs. 34--38. Furthermore, to establish the right to use the way of necessity, it is not necessary to show absolute necessity. It is sufficient to show such physical conditions and such use as would reasonably lead one to believe that the grantor intended the grantee should have the right of access. Smith v. Moore, supra, 254 N.C. 186, 118 S.E.2d 436.". The court goes on to discourse upon the law with
respect to location of the easement as follows, "With respect to its location on the ground, '(t)the rule applicable where a general (unlocated) right of way is granted * * * is applicable to the location of a way of necessity. 'As in the case of easements generally, the rule has been established that the right to select the location of a way of necessity belongs to the owner of the servient estate, provided he exercises the right in a reasonable manner,
with regard to the convenience and suitability of the way and to the rights and interests of the owner of the dominant estate.' 17A Am.Jur., Easements s 108.' Pritchard v. Scott, supra, 254 N.C. 277, 118 S.E.2d 890. Accord, Andrews v. Lovejoy, 247 N.C. 554, 101 S.E.2d 395 (1958); Winston Brick Mfg. Co. v. Hodgin, 192 N.C. 577, 135 S.E. 466 (1926). However, if at the time a way of necessity was impliedly granted on 4 June 1954
there was in use on the land a way plainly visible and known to the parties, 'this way will be held to be the location of the way granted, unless it is not a reasonable and convenient way for both parties.' 25 Am.Jur.2d, Easements and Licenses s 65; 28 C.J.S. Easements s 80; Eureka Land Co. v. Watts, 119 Va. 506, 89 S.E. 968 (1916); Labounty v. Vickers, 352 Mass. 337, 225 N.E.2d 333 (1967)." , Oliver v. Ernul (supra). Prescriptive easements are derived from the legal principal that long unrestricted use must have been derived from the legal fiction of a lost grant. The law in this State has essentially relied on the Statute of Limitations and adverse possession of a lesser estate
than the fee. The elements that must be proven to establish a prescriptive easement are: (1) that the use is adverse, hostile or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has been continuous and uninterrupted for a period of at least twenty years; and (4) that there is substantial identity of the easement claimed throughout the twenty-year period, Potts v. Burnette, 301 N.C. 663, 666. See 273 S.E.2d 285, 287-88 (1981) 450 S.E.2d491, 117 N.C.App. 152, Vandervoort v. McKenzie, (N.C.App. 1994) and 458 S.E.2d 264, Pitcock v. Fox, (N.C.App. 1995) for recent excellent discussions of the
necessary proof required to establish the elements. 

We would like to recommend, Tower Development Partners v. Samuel Zell, 461 S.E. 2d 17 (1995), as an excellent discourse on dedication and withdrawal as well as implication, especially in a large commercial transactions context.

Title insurers are reluctant to insure a right of access based upon easement by implication, prescription or necessity but can consider such requests on a case by case basis. The newly amended cartway statute, G.S. 136-68 through G.S. 136-70, discussed in our September 1995 newsletter, is helpful and should be reviewed and can be relied on.

(TO BE CONTINUED IN OUR JANUARY 1996 NEWSLETTER)

Cornelius v. Helms, N.C. App. , 461 S.E. 2d 338 (1995), should be noted. In that case the purchase contract required $40,000.00 in cash at closing and an $88,600.00 subordinate note and deed of trust "subordinate to 75% Loan-to-Value Construction Loan." The purchaser requested the defendant attorney to close the sale and a lot acquisition and construction loan from First Union. First Union’s loan instructions required it to have a first lien and that the attorney report subordinate liens. The defendant attorney drafted a purchase money note and deed of trust for the plaintiff-seller from the purchaser. That document stated that it was subject to a deed of trust to be executed by the purchaser to First Union; this was contrary to what the plaintiff-seller had agreed to (see above). When First Union foreclosed, it wiped out the purchase money deed of trust securing the seller. The plaintiff-seller sued the defendant attorney and prevailed. The court held that an attorney-client relationship existed between the defendant attorney and the plaintiff-seller (the relationship can be implied and is not dependent upon a formal contract or fee); that the attorney was negligent in failing to properly apply the land draw check toward the purchase of the lot in accordance with First Union’s closing instructions and failing to ask the plaintiff or First Union how the conflict between the plaintiff’s contract and First Union’s instructions could be reconciled; and that the plaintiff suffered an $88,600.00 loss.

This case involved an excellent law firm and illustrates the difficulties caused by demands for quick service. Careful communication is the key to avoiding claims.