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