`Johnson County Circuit Court
`Monica King, Circuit Clerk
`2022-Feb-04 12:37:22
`36CV-21-197
`C05D01 : 6 Pages
`
`
`
`6. The Defendantis without sufficient information to admit or deny the
`
`allegations of paragraphsix (6) of the Complaint, and therefore same are denied.
`
`7. The Defendant is without sufficient information to admit or deny the
`
`allegations of paragraph seven (7) of the Complaint, and therefore same are denied,
`
`8. The Defendantis without sufficient information to admit or deny the
`
`allegations of paragraph eight (8) of the Complaint, and therefore same are denied,
`
`9. The Defendant admits that Plaintiff brings this action, but denies the remaining
`
`allegations contained in paragraph numbernine(9) of said Complaint, and further denies
`
`that sheis entitled to any relief whatsoever.
`
`10. There are no specific allegations contained in paragraph numberten (10) of
`
`said Complaint, but to the extent there are, same are denied. The Defendant adopts and
`
`re-incorporates his answers in the preceding paragraphsofthis alternative answerasif set
`
`forth fully herein word for word.
`
`11. The Defendant admits that the Plaintiff owns two tracts of land in Section 19,
`
`Township 10 North, Range 24 West andthat the Defendant ownsa tract of land in said
`
`section, Defendant denies the remainingallegation particularly as to the characterization
`
`of the lay of the lands by Defendants Complaintall as contained in paragraph number
`
`eleven (11) of the Complaint.
`
`12, The Defendantpoints out that Plaintiff does not incorporate any exhibit to
`
`her complaint in the substance thereof; the exhibit “A” attached is a copyrighted map.
`
`Defendant denies that his property is “under the name of Myrtle Reece”as alleged, and
`
`further denies any remaining allegations contained in paragraph numbertwelve (12) of
`
`the Complaint.
`
`
`
`13. The Defendant admits that there is no legal easement in existence as to
`
`Plaintiff's “Tract 1” as described in the survey attached to the Complaintas exhibit “2”.
`
`14. The Defendant admits the allegations contained in paragraph numberfourteen
`
`(14) of the Complaint.
`
`15. The Defendant is without sufficient information to admit or denythe
`
`allegations of paragraph fifteen (15) of the Complaint, and therefore same are denied.
`
`16. The Defendant is without sufficient information to admit or deny the
`
`allegations of paragraph sixteen (16) of the Complaint, and therefore same are denied.
`
`17. The Defendant admits the allegations contained in paragraph number
`
`seventeen (17) of the Complaint.
`
`18. The Defendantdenies the allegations contained in paragraph number eighteen
`
`(18) of the Complaint.
`
`19. The Defendant denies the allegations contained in paragraph number nineteen
`
`(19) of the Complaint.
`
`20. The Defendant admits that Plaintiffs occasional use of Defendant’s lands for
`
`ingress and egress to her “Tract 1” has been by permission granted by Defendant.
`
`Defendant is not willing to concede any such easement.
`
`21. There are no specific fact allegations contained in paragraph number twenty-
`
`one (21) of said Complaint, but to the extent there are, same are denied. The Defendant
`adopts and re-incorporates his answersin the preceding paragraphsofthis alternative
`
`answerasif set forth fully herein word for word.
`
`22. There are no specific fact allegations contained in paragraph number twenty-
`
`two (22) of said Complaint, but to the extent there are, same are denied. The Defendant
`
`
`
`adopts and re-incorporates his answers in the preceding paragraphsofthis alternative
`
`answeras if set forth fully herein word for word.
`
`23, There are no specific fact allegations contained in paragraph number twenty-
`
`three (23) of said Complaint, but to the extent there are, same are denied. The Defendant
`
`adopts and re-incorporates his answers in the preceding paragraphsofthis alternative
`
`answeras if set forth fully herein word for word.
`
`24. The Defendant is without sufficient knowledge to admit or deny the
`
`allegations contained in paragraph number twenty-four (24) of the Complaint, and there
`
`the same are denied.
`
`25. The Defendant is withoutsufficient knowledge to admit or deny the
`
`allegations contained in paragraph number twenty-four (24) ofthe Complaint, and there
`
`the same are denied.
`
`26. The Defendant denies the allegations contained in paragraph number twenty-
`
`six (26) of the Complaint.
`
`27, The Defendant denies the allegations contained in paragraph number twenty-
`
`seven (27) of the Complaint.
`
`28. The Defendantdeniesthe allegations contained in paragraph number twenty-
`
`eight (28) of the Complaint.
`
`29. Defendant pleads the following defenses: Laches and Statute of Limitations
`
`pursuant to A.R.C.P., Rule 8 (c).
`
`30. Plaintiff has failed to join necessary parties to this cause of action, and has
`
`failed to state facts sufficient to show that sheis entitled to any relief, therefore the
`
`
`
`Complaint should be dismissed pursuant to A.R.C.P., Rule 12 (b) (6) and (7). Defendant
`
`incorporates by reference his Incorporated Brief in Support following hereinbelow.
`
`WHEREFORE,having answered the Complaint of the Plaintiff, and moved for
`
`dismissal, the Defendant prays that the Court dismiss said claim and forhis attorney fees
`
`expended, his costs andall other properrelief.
`
`INCORPORATED BRIEF IN SUPPORT
`
`Rule 8 of the Arkansas Rules of Civil Procedure requires a claimant to set forth a
`
`statement“in ordinary and concise languageof facts showing. .
`
`. that the pleaderis
`
`entitled to relief.” In the instant case, Plaintiff has pleaded that a tract of her landis
`
`“land-locked” and in conclusory language goes on to aver the “necessity” of an easement.
`
`But the Arkansas courts have long required more than simply being “land-locked”to
`
`show necessity. Young v. Robertson, 2015 Ark.App.__, 476 S.W.3d 856 (Ark. App.
`
`2015). The right of an easement by necessity requires the demonstration of the necessity
`
`of using such a route. Greasy Slough Outing Club v. Amick, 224 330, 274 S.W.2d 63
`
`(1954). The degree of necessity must be more than mere convenience. Hortonv. Taylor,
`
`2012 Ark.App. 469, 422 S.W.3d 202 (Ark. App. 2012), and Young v. Robertson, supra.
`
`The requirement of necessity means that there could be no other reasonable mode of
`
`enjoying the dominant tenement with the easement. Kennedy vy, Papp, 294 Ark. 88, 742
`
`S.W.2d 625 (1987). The possibility of any other route, although inconvenient or
`
`expensive, to Plaintiff's land precludes a finding of necessity. Young v. Robertson,
`
`supra., in which the Court observed that the claimant’s lands adjoined a swampthrough
`
`whichthe claimant could havebuilt a road, though it would be costly. The possibility of
`
`another route which has not been fully investigated or attempted precludes the
`
`
`
`establishment of an easement by necessity. Berry v.Moon, 2011 Ark.App. 781, 387
`
`S.W.3d 306 (Ark.App. 2011).
`
`Plaintiff has averred no facts tending to established the “necessity” of the
`
`easement other than the conclusionthat it is necessary.
`
`Plaintiff has not madeparties any other adjoining land owners over whose lands
`
`an easement might be moresuited or necessary. The claimant of an easement by
`
`necessity doesn’t get to chose the route. See Young v. Young, and Greasy Slough, and
`
`Berry, supra.
`
`Plaintiff's complaint must therefore fail and be dismissed.
`
`RONALD A. WARREN,Defendant
`
`By:
`
`Attorney at Law
`
`Barham Law Office, P.A.
`111 E. WalnutSt.
`Paris, AR 72855
`(479) 963-3996
`
`
`CERTIFICATE OF SERVICE
`
`I, R. Kevin Barham,certifythat Ihave this gy day ofB672022, efiledthe
`
`above and foregoing Instrument whichwill provide propernotification unto M
`
`Jordan Cardwell, Attorney at Law, 1237 Front Street, Conway, Arkansas, 72032, by
`electronic notification through the Eflex electronic filing system pursuant to the Rules.
`EZ
`
`
`R. Kevin Barham
`
`