{
  "id": 1715554,
  "name": "H. F. BARRACLOUGH and Donna BARRACLOUGH v. ARKANSAS POWER AND LIGHT COMPANY",
  "name_abbreviation": "Barraclough v. Arkansas Power & Light Co.",
  "decision_date": "1980-04-16",
  "docket_number": "CA 79-266",
  "first_page": "1026",
  "last_page": "1031",
  "citations": [
    {
      "type": "official",
      "cite": "268 Ark. 1026"
    },
    {
      "type": "parallel",
      "cite": "597 S.W.2d 861"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "244 Ark. 49",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8717659
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/ark/244/0049-01"
      ]
    },
    {
      "cite": "264 Ark. 918",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1668864
      ],
      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/264/0918-01"
      ]
    },
    {
      "cite": "227 Ark. 681",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1705454
      ],
      "weight": 4,
      "year": 1957,
      "pin_cites": [
        {
          "page": "687"
        },
        {
          "page": "686"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/227/0681-01"
      ]
    },
    {
      "cite": "243 Ark. 226",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8718985
      ],
      "weight": 2,
      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ark/243/0226-01"
      ]
    },
    {
      "cite": "587 S.W. 2d 227",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        8722755
      ],
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/266/0790-01"
      ]
    },
    {
      "cite": "266 Ark. 86",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1979,
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 492,
    "char_count": 7376,
    "ocr_confidence": 0.908,
    "pagerank": {
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      "percentile": 0.7385179599273934
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    "sha256": "5f889d628ab1ff455d232c71b8464d79aedf8744fb74349d0450ddd2597a9182",
    "simhash": "1:00bcc5e17fd22cd3",
    "word_count": 1244
  },
  "last_updated": "2023-07-14T19:03:10.426772+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Hays did not participate."
    ],
    "parties": [
      "H. F. BARRACLOUGH and Donna BARRACLOUGH v. ARKANSAS POWER AND LIGHT COMPANY"
    ],
    "opinions": [
      {
        "text": "David Newbern, Judge.\nThe appellants ask us to reverse a summary judgment which ruled against their ejectment claim. They had alleged that the appellee\u2019s attempt to replace some wooden transmission poles with a steel tower was not permitted by an instrument which granted to the appellee an easement across their land. On the basis of the instrument creating the easement and verified affidavits submitted by the appellee, the court determined there was no outstanding, material issue of fact. The appellants contend no summary judgment should have been granted and the court erred in its application of the law. The court was correct in granting the judgment to the appellee.\nIn 1928 the appellants\u2019 predecessors in title granted to the appellee an easement:\n... to build and maintain over and upon the land hereinafter described 2 double lines of poles upon which may be strung wires for transmission of electric current, and for the transmission of telegraph and telephone messages, and for such other uses as may be necessary to the business of Grantee, its successors or assigns. The rights hereby conferred provide for the privilege and authority to enter upon said land for the purpose of constructing and building said pole line and maintenance thereof, with the right to clear and keep clear a right of way 150 feet wide and all other timber and obstructions that may interfere with the use of said line or that may or might be a hazard to the use of the same, and for the repairing or reconstructing of same at any and all times. [Emphasis added]\nAccording to the affidavit of the appellee\u2019s manager of lands and rights-of-way, two power transmission lines had been placed upon the property that now belongs to the appellants. They were placed within the easement sometime after its acquisition in 1928. One was supported by a series of wooden three-pole installations, and the other by a series of \u201cmetal tower structures which ran parallel to the wooden three-pole line.\u201d It was the appellee\u2019s attempt to replace some of the wooden poles with a metal tower which initiated this dispute.\nAt the appellants\u2019 request, a real estate appraiser suggested by the appellants was asked by the appellee to determine if the replacement would in any way diminish the appellants\u2019 property. The appraiser, whose affidavit was submitted in support of the summary judgment motion, concluded that, providing the tower lies within the right-of-way, there was \u201cno justification for damages whatever.\u201d\nArk. Stat. Ann., \u00a7 29-211 (e) (Supp. 1977), which was in effect when this judgment was granted, and A.R. Civ. P. 56 (e), which has superseded the statute, provide in part:\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\nAlthough it was not necessary that the appellants submit affidavits in opposition to those submitted by the appellee, Adams v. Hudspeth Motors, Inc., 266 Ark. 86, 587 S.W. 2d 227 (1979), it was necessary that their response refer to something in the record, such as discovery responses, raising an issue of fact. The appellants have neither abstracted their \u201cmemorandum\u201d response to the summary judgment motion nor included it in the record. The only means we have of knowing there was anything filed in opposition to the motion is a mention of the appellants\u2019 memorandum in the judgment. There is nothing in the record to indicate any discovery took place. Given this failure on the part of the appellants to show how they opposed the motion or, indeed, that they opposed it at all, we need only decide if a summary judgment was \u201cappropriate,\u201d to use the term contained in the. statute and the rule.\nThe question of appropriateness of the summary judgment in this case goes only to whether the evidentiary items presented by the appellee in support of the motion leave a material question of fact unanswered. See, 10 Wright and Miller, Federal Practice and Procedure, \u00a7 2739, p. 710 (1973).\nA summary judgment may be based upon an unambiguous, written instrument. Brooks v. Renner & Co., 243 Ark. 226, 419 S.W. 2d 305 (1967). Resolving all doubts in favor of the appellants, no reasonable person could say the easement granted was restricted to poles, as it provided for \u201csuch other uses as may be necessary to the business\u201d of the appellee. This conclusion is especially inescapable in view of the unrebutted affidavit showing metal towers, apparently uncomplained of, had been on the property pursuant to the easement.\nThe appellee, of course, could not, for example, have constructed an enclosed structure covering all of the easement. We interpret the phrase, \u201cnecessary to the business,\u201d to be restricted to reasonable acts in support of the purpose for which the easement was obtained. The appellants cite Craig v. O\u2019Bryan, 227 Ark. 681, 301 S.W. 2d 18 (1957), for the proposition that:\n\u201cIt is a general rule, when the character of an easement is once fixed, no material alterations can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement.\u201d [227 Ark. at 687].\nThat language which is quoted in the case from a legal encyclopedia seems to be a restriction on the owner of the servient estate rather than the holder of the easement grant. Perusal of the case makes it clear the language was so used. The following language was also quoted in that case, and we find it applicable here:\n\u201cIt is a general rule that the owner of an easement of way may prepare, maintain, improve or repair the way in a manner and to an extent reeasonably calculated to promote the purposes for which it was created or acquired, causing neither an undue burden upon the servient estate nor an unwarranted interference with the rights of common owners or the independent rights of others. \u201d [227 Ark. at 686, Emphasis supplied by the Arkansas Supreme Court.]\nIn the context of this easement arrangement, the change from poles to tower was not an \u201cundue burden\u201d on the servient estate.\nThe appellants also contend that when the poles are taken away in preparation for erection of the tower, a partial abandonment occurs, and the appellee should not be allowed to reconstruct. Although we need not even consider this point as it was not raised below, we choose to point out that abandonment of an easement has not been shown in the absence of ashowingofan intent to abandon. Edgar v. Stubbs, 264 Ark. 918, 576 S.W. 2d 200 (1979); Ark. State Highway Comm\u2019n v. Hampton, 244 Ark. 49, 423 S.W. 2d 567 (1968).\nThus, we conclude that the trial court was correct in granting the summary judgment, and would have been correct even if we knew for certain the appellants had raised all of these points below.\nAffirmed.\nJudge Hays did not participate.",
        "type": "majority",
        "author": "David Newbern, Judge."
      }
    ],
    "attorneys": [
      "Thurman Ragar, Jr., for appellants.",
      "House, Holmes & Jewell, by: Robert L. Robinson, Jr. and Daryl G. Raney, for appellee."
    ],
    "corrections": "",
    "head_matter": "H. F. BARRACLOUGH and Donna BARRACLOUGH v. ARKANSAS POWER AND LIGHT COMPANY\nCA 79-266\n597 S.W. 2d 861\nCourt of Appeals of Arkansas\nOpinion delivered April 16, 1980\nReleased for publication May 7, 1980\nThurman Ragar, Jr., for appellants.\nHouse, Holmes & Jewell, by: Robert L. Robinson, Jr. and Daryl G. Raney, for appellee."
  },
  "file_name": "1026-01",
  "first_page_order": 1062,
  "last_page_order": 1067
}