Cite as 2015 Ark. App. 681
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-418
TERESA CAMILLE YOUNG AND Opinion Delivered December 2, 2015
JAMES LYNN CARSON
APPELLANTS APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. 43CV-14-471]
HONORABLE SANDY HUCKABEE,
ELMER L. ROBERTSON, JACK JUDGE
BURGESS, AND AUTUMN BURGESS
APPELLEES AFFIRMED
BART F. VIRDEN, Judge
On September 25, 2014, appellants Teresa Young and James Carson filed a complaint
to establish an easement by prescription, necessity, or adverse use over land owned by
appellees Elmer Robertson, Jack Burgess, and Autumn Burgess. Appellants alleged that they
were landlocked in that there was no direct access and no reasonable means to access their
property without use of an existing fifty-foot ingress-and-egress easement. The Lonoke
County Circuit Court dismissed appellants’ complaint. On appeal, appellants argue that the
trial court erred in finding insufficient evidence to establish an easement by necessity.1 We
affirm.
I. Easement By Necessity
To establish an easement by necessity, a party must prove (1) that, at one time, one
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Appellants have abandoned their other claims.
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person held title to the tracts in question; (2) that unity of title was severed by conveyance
of one of the tracts; and (3) that the easement is necessary in order for the owner of the
dominant tenement to use his land, with the necessity existing both at the time of the
severance of title and at the time the easement is exercised. Horton v. Taylor, 2012 Ark. App.
469, 422 S.W.3d 202. What the petitioner must show is a reasonable necessity for a road, not
an absolute necessity. Attaway v. Davis, 288 Ark. 478, 707 S.W.2d 302 (1986). The degree
of necessity must be more than mere convenience. Horton, supra. Whether an easement is
necessary is a question of fact. Id. The supreme court has held that “necessary” means there
could be no other reasonable mode of enjoying the dominant tenement without the
easement. Kennedy v. Papp, 294 Ark. 88, 741 S.W.2d 625 (1987).
There is no dispute that the first and second requirements for an easement by necessity
have been met. The property in question was once a fifty-acre tract owned by Lanny R.
Pierce and Denise D. Clark, and the tract was severed by conveyance to the parties. The
north side of the fifty-acre tract runs along Bratton Road, a public road. Appellants own a
sideways J-shaped piece of land comprising the outer south and west sides of the tract,
approximately 1,142 feet on the north side, and approximately 518 feet on the east side. The
Wattensaw Bayou is located in the southwest corner of the tract. Robertson’s property is a
rectangular-shaped piece of land in the middle of the tract extending from the east side of the
tract and touching the top of the “J.” The Burgesses’ square-shaped piece of land adjoins
Robertson’s in the northeast corner of the fifty-acre tract. Appellants’ mobile home is located
in the southeast corner of the tract, or inside the top of the “J.” The existing easement,
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accessed from Bratton Road, runs along the east side of the fifty-acre tract and crosses the
land owned by the Burgesses and Robertson.
II. Hearing Testimony
At a hearing held on December 9, 2014, the testimony established that Young had
purchased thirty-five acres in May 2011 and that she and her boyfriend, Carson, lived in a
mobile home on the property. They accessed the property via a road that crossed appellees’
property. Young testified that, soon after she purchased the land, Robertson and Carson
began having “heated altercations” over use of the road. Young stated that Robertson had
not told her that she could not use the road but that he did install speed bumps in 2012.
Young testified that, although she had 1,142.60 feet of frontage where her property adjoined
Bratton Road, she could not access her property from there because the only dry area was
on Robertson’s property; however, Young conceded that she had never attempted to build
a road there. Young stated that she had built a levee near the western end of Robertson’s
property but that it had breached. She said that part of her property was designated wetlands
and that “you cannot get through there.” Young testified that there was no other existing
road and that she could not use her property if she had no access by way of the existing
easement.
Jim Wilkerson testified that he did not “have a dog in this hunt” but that he was
familiar with the fifty-acre tract because he had leased nearby property for twenty-six years.
He stated that his leased land was designated wetlands but that he used it for hunting. He
said, “You could build a road on [wetlands], but I wouldn’t.” After saying that it would be
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“almost impossible” to build a road because the land was too wet, Wilkerson opined that it
could take several hundred thousand dollars to build a road but that a road could be built “if
you had the right stuff to do it with.”
Scott Foster, a licensed land surveyor, testified that Wattensaw Bayou, designated as
Zone A, comprising both floodplain and floodway, covered a portion of appellants’ property.
He stated that a road could be constructed in a floodplain with proper permits but that
governmental regulations prohibited the building of a road through a floodway. He said, “A
road absolutely cannot be put across a floodway.”
Young was recalled to testify regarding a letter she had received from Roger Allen at
the Army Corps of Engineers. She said that Allen had been contacted by Robertson about
a possible violation for Young’s building a levee on the wetlands. Young testified that she
was told that the Corps had made “a preliminary jurisdictional determination” that a portion
of her land “may be considered . . . wetlands” and that she should contact the Corps before
doing any work. Young said that she concurred with the Corps’s determination, so she did
not respond to the letter. She did, however, speak with an employee at the Corps who
advised her that she could apply for a permit but that it would likely be denied. Young
stated, “I have not applied and am not going to.”
Elmer Robertson testified that he began having confrontations with Carson soon after
he and Young moved onto the land because of traffic. He stated that he had given appellants
permission to use the easement “to be neighborly” but that they had abused the road by
driving too fast, which resulted in potholes. Robertson, who works as a contractor, testified
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that he thought appellants could build a road if they had the resources. He further testified
that the portion of appellants’ property with frontage on Bratton Road could hold a trailer
at certain times of the year.
Jack Burgess testified that, since the appellants had moved onto the land, there was
“tons of traffic and they speed and they’re obnoxious.” He stated that the traffic was ruining
the road, which he believed would decrease the value of his property. Burgess stated that he
builds roads for a living and that it would cost appellants approximately $14,000 to $18,000
to build a road. Burgess further stated that appellants could enjoy their property if they were
willing to move their mobile home to the other side of the floodway and access the rest of
their property by four wheelers and trucks.
At the conclusion of the hearing, the trial court took the matter under advisement and
later entered an order dismissing appellants’ complaint because there was insufficient evidence
to establish an easement.
III. Appellants’ Arguments
Appellants reargue the testimony from the bench trial and conclude that, “[b]ased on
the uncontroverted testimony that the current road is the only way Appellants can access
their home, the rest of their land is in a zone A floodway, and that they are not allowed to
build a road over a zone A floodway on their land, the court erred when it dismissed their
complaint. The evidence was overwhelming that this easement was in deed [sic] necessary
to access their home and not a mere convenience.”
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IV. Standard of Review
We review equity cases de novo on the record and will not reverse a finding of fact
by the trial court unless it is clearly erroneous. Horton, supra. A decision is clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence
is left with a definite and firm conviction that a mistake has been committed. Sanford v.
Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003). Disputed facts and determinations of witness
credibility are within the province of the fact-finder and, in reviewing a trial court’s findings,
we give due deference to that court’s superior position to determine the credibility of the
witnesses and the weight to be accorded to their testimony. Horton, supra.
V. Discussion
As a preliminary matter, appellants alleged in their complaint that, without the
easement, they cannot access their property and that they are landlocked. “Landlocked” is
a term applied to a piece of land belonging to one person and surrounded by land belonging
to other persons, so that it cannot be approached except over their land. Black’s Law
Dictionary, 878 (6th ed. 1990). Appellants’ property is not landlocked given that they have
over 1,142 feet of land adjacent to a public road. Also, although appellants—as well as
appellees—narrowly frame the issue on appeal as “whether the use of the roadway is
necessary to the Appellants’ use of their mobile home . . .,” the question is whether the
easement is “necessary in order for the owner of the dominant tenement to use his land.”
Horton, 2012 Ark. App. 469, at 7, 422 S.W.3d 202, 208. The parties do not provide any
authority to the contrary.
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Young testified that she had neither attempted to build a road nor applied for
permission to build a road because she thought her application would be denied. The letter
from the Army Corps of Engineers does not forbid appellants to build a road, and the
National Flood Insurance Programs regulations, which were introduced into evidence, do
not appear to prohibit the building of a road either. Appellees, who both worked in
construction, and Wilkerson testified that it was possible, albeit perhaps not the most
desirable option, to build a road from Bratton Road such that appellants could enjoy their
property. On the other hand, the testimony by appellants’ expert established that a road
absolutely cannot be built in a floodway. It was the trial court’s duty to determine credibility
and to weigh the conflicting testimony. Horton, supra.
The trial court could have concluded that alternate routes to access appellants’
property existed and that appellants had simply not explored those possibilities. Id. (holding
that possibility of another, although inconvenient, route to appellants’ property precluded
establishment of easement by necessity); Berry v. Moon, 2011 Ark. App. 781, 387 S.W.3d 306
(holding that possibility of another route to appellees’ backyard, including testimony by
appellee that there was at least one other possible route that had not been fully investigated,
precluded establishment of easement by necessity); Orr v. Orr, 2009 Ark. App. 578 (denying
easement by necessity where evidence was conflicting as to availability of alternative routes
to appellants’ properties and request appeared to be driven more by convenience than
necessity). Giving due deference to the trial court’s superior position to make credibility
determinations and weigh the evidence, we cannot say that the trial court clearly erred in
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determining that an easement was not necessary under these circumstances.
Affirmed.
KINARD and HOOFMAN , JJ., agree.
Chad M. Green, for appellants.
Baker, Schulze, Murphy & Patterson, by: J. G. “Gerry” Schulze, for appellees.
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