Imagine your client purchases a parcel of real estate in a rural community. Perhaps it is a dreamy lakeside cabin, a rustic hunting place, or some additional tract of farmland for a growing agricultural operation. Now, imagine your client’s surprise when she sees a neighbor driving a large tractor across a portion of her newly purchased land, without seeking permission, and without notice. She calls you and is furious because the large tractor pulled up her recently planted crops, deer feeding plot, recreational grass, or garden area. She wants to sue for trespass and damages.
As requested, you contact the offending neighbor, who insists he is not trespassing on your client’s land. He tells you he is merely using the field cartway that was established many, many years ago by the area township. However, when you search the county land records, you find no mention of any kind of cartway or easement for that matter. What is going on?
Eventually, you make contact with the part-time, volunteer town board supervisor, who tells you that municipal cartways are not required to be filed with the county recorder’s office. The township merely sends the cartway petition and approval documents, once granted, to the county auditor’s office for filing— where it lays hidden for years. Thus, your client took title to land subject to an existing cartway, absent any notice of the legal access right until sometime after purchasing the real property.
This article will provide an overview of the treatment and use of cartways in the law. It will highlight cases surrounding cartways in recent years, and will provide legal practitioners with practical insight into the differences between easements and cartways. This article will also discuss how to establish or vacate a cartway, and it will also address special legal problems that may arise when clients come across cartway issues involving their real property.