| Mo. | Jan 29, 1917
Lead Opinion
This ease reached us from the St. Louis Court of Appeals, the certification being upon the ground that title to real estate is so involved as to invoke our jurisdiction rather than theirs.
The further salient facts are, that some time prior to this action Daniel C. Chandler, one of the defendants herein, presented a petition to the county court of Pike County, praying for a private -road of necessity over the lands of Luther F. Sparks and Lois E. Reading.' The prayer of his petition was granted and the private road duly established, but not until Sparks and Reading had invoked the judgment of the St. Louis Court of Appeals upon at least one question therein. [Chandler v. Reading et al., 129 Mo. App. 63" court="Mo. Ct. App." date_filed="1908-02-04" href="https://app.midpage.ai/document/chandler-v-reading-8264720?utm_source=webapp" opinion_id="8264720">129 Mo. App. 63.]
After the establishment of this private road there was an attempt to open a public road to Chandler’s land some half mile distance north of the private way. In this Lois E. Reading, L. F. Sparks, and Dr. D. M. Pearson appear to have been the leading spirits. A plat in defendant’s brief shows the situation of the matters in dispute, and for the exactness of the information which it furnishes we insert it here.
When this alleged public road was thought by the parties to have been established, Lois E. Eeading and Luther F. Sparks brought the present action in the county court to have the private road vacated.
Chandler had paid the damages awarded in the establishment of his private way, and it will be observed from the plat that in going from his home to Louisiana (his trading point) the private way is nearly a mile nearer than the alleged public road. On trial in the county court the petition of Eeading and Sparks to vacate the private road was denied, and upon appeal to the circuit court a like result followed. From the circuit court judgment, as stated, the appeal was taken to the St. Louis Court of Appeals, but that court has certified it here. This outlines the case. Other matters will be noted in the opinion.
II. This is a statutory fiction brought under section 10457, Eevised Statutes 1909. That section so far as applicable to the facts in this case reads: “If, at any time after a private road has been opened under the provisions of this article, a public road shall be opened so as to give to the owners and occupants of such tract or lot of land, as is contemplated by this article, convenient and
Under this statute two things must be shown before plaintiffs would be entitled to the vacation of defendant’s private road: (1) that a public road has been established to which defendant had access and (2) that such access was convenient and practical.'
There are many technical questions urged in support of the judgment nisi, but these we pass. Nor do we think it necessary to determine whether or not the alleged new public road was in fact legally established. If established it was but a cul do sac through which defendants might pass from the northern portion of their farm to the real public road to the east thereof. It was in view of a discussion of the statute that we included in our statement the plat of the situation.. Prom this plat it appears that the dwelling of the defendants is on the southern portion of their land; that the private way runs directly from this dwelling to the real public road; that to go to their trading point, .Louisiana, over the new public road, defendants would have to go north nearly a half mile and then come south the same distance, before reaching the point on the main public road touched by the private way. In other words, upon each trip to Louisiana he would have to travel practically one mile more than he would travel by the private way.- The evidence is conflicting as to which is the better ground for a road. Under the facts and the peculiar language of our statute should the judgment nisi be disturbed? We think not. It may be conceded that it has been announced in the text-books and the cases that private roads are ways of necessity, and when the necessity ceases the private way should cease. But these texts and cases aid us but little in this case, because we must deal with our own statutes. These statutes seem to have added some to the things requisite to put at an end a private way once established. Our statute for the establishment of a private road (Sec. 10447, R. S. 1909) provides that the person seeking such a way can
The foregoing opinion of Graves. P. J., from Division, is adopted as the opinion of the Court in Banc.
Dissenting Opinion
(dissenting). — I dissent from the majority opinion for the reason that the right to establish a private road rests solely upon section 20 of the Bill of Rights, which provides “that no private property can be taken for private nse, with or without compensation, unless by the consent of the owner, except for private ways of necessity,” etc.
Prior to the adoption of the Constitution of 1875, of which said section 20 is a part, there existed in this State no means by which a private way could be established, however great the necessity therefor might have been, except by agreement of parties.
But wherever that right did exist, whether at common law, or under the constitutions and statutes of other States, it was always predicated upon the sole ground of necessity, not convenience, and the universal corollary to that right, namely, that when the necessity for the private road ceased to exist, the right to the road itself likewise ceased to. exist. All of the authorities so hold, as I understand them. That was the condition of the law when the Constitution of 1875 was adopted, and the framers thereof must have used the words “for private ways of necessity, ’ ’ in their ordinary meaning and common acceptation at that time. This rule of construction, both as to constitutional provisions and statutory enactments, is so well known that a citation of authorities in support thereof would he useless.
That being true, we will return to said constitutional provision: Private property shall not be taken for private use “except for private ways of necessity.”
This language excludes the right of one person to have a private road established over the land of another for his convenience merely; the road must be’ an absolute necessity, as provided for by the Constitution, to connect his private property with a public road. For illustration, suppose we transpose the facts of this case, and assume that the public road mentioned had been established as it now exists, prior to the date the private road was petitioned for, then could or would any court have held that said private road would have been a road of necessity,
It might also have been more convenient for Chandler to have had this farm located within a mile of Louisiana, his trading point, yet that was no more a necessity than to have a road a mile shorter.
That being self-evident, as it seems to me, the corollary thereto, as previously stated,' is that when the necessity for the private road ceased to exist, then the right to the road itself also ceased. This is also self-evident and conclusive of the question. [Vossen v. Dautel, 116 Mo. 379" court="Mo." date_filed="1893-06-05" href="https://app.midpage.ai/document/vossen-v-dautel-8010956?utm_source=webapp" opinion_id="8010956">116 Mo. 379; Cox v. Tipton, 18 Mo. App. 450" court="Mo. Ct. App." date_filed="1885-06-15" href="https://app.midpage.ai/document/cox-v-tipton-6614814?utm_source=webapp" opinion_id="6614814">18 Mo. App. 450; Cooper v. Maupin, 6 Mo. 624" court="Mo." date_filed="1840-09-15" href="https://app.midpage.ai/document/cooper-v-maupin-6610325?utm_source=webapp" opinion_id="6610325">6 Mo. 624; Goddard on Easements (Bennett’s Ed.), 267, 270; Nichols v. Luce, 24 Pick. 102; Washburn on Easements (3 Ed.), 233; Tiedman on Real Property (1884 Ed.), sec. 609, p. 472; 23 Am. & Eng. Ency. Law (2 Ed.), p. 44.]
In the Vossen-Dautel case, supra, Judge Black, on page 385, in speaking for this court on this question, used the following language:
“The principle of law is of old standing and well settled that a grant of a way is presumed to have been made whenever land has been sold which is inaccessible, except by passing over the land of the grantor or by committing a trespass upon the land of a stranger. It is founded on the further principle that when a grant is made, every right is also presumed to have been granted, without which the subject of the grant would be useless. [Goddard on Easements (Bennett’s Ed.), 266, 267; Wash-burn on Easements (3 Ed.), 233.]
“But it is equally well settled that the presumption of a grant of way of necessity does not arise where the person claiming it has access to his land. A way of necessity exists only where the person claiming it has no other means of passing from his estate into the street or road. One cannot have a way of necessity because*600 it is more convenient than the way which he has. [Wash-burn on Easements (3 Ed.), 234, 235; Cooper v. Maupin, 6 Mo. 624" court="Mo." date_filed="1840-09-15" href="https://app.midpage.ai/document/cooper-v-maupin-6610325?utm_source=webapp" opinion_id="6610325">6 Mo. 624; Goddard on Easements (Bennett’s Ed.), 267, 270; Nichols v. Luce, 24 Pick. 102.]
“Again, the necessity limits the duration of the right of way. The rule on this subject is thus stated by Washburn: ‘And so limited is the right of way of necessity in respect to its duration, that, though it remains appurtenant to the land in favor of which it is raised so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires, by purchase of other land or otherwise, a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is at an end; or, in other words, a way of necessity ceases as soon as the necessity ceases.’ [Washburn on Easements (3 Ed.), 235.]
“Applying these principles to the case in hand, it must be evident that plaintiff has no way of necessity. When he purchased the one hundred and forty-eight acres of Sullens there was a public road on and along the north side of the land so purchased, and, that being so, there can be no presumption of a grant of a way over the other lands still held by Sullens. It is one or two miles further to the Olive Street road by the Schuetz road than through the Sullens one hundred and two acres, and the Schuetz road is as yet a dirt road, while the Olive Street road is a rock road. These are all mere matters of inconvenience and do not lay any foundation for a right of way of necessity. There is some evidence tending to show that though the Schuetz road had been laid out by the county as far back as 1855, it was not opened up for travel until 1870. Conceding this to be true, still when it was opened up to travel the right to a way over the one hundred and two acres ceased. When the necessity ceased the right of way ceased.”
That case is supported by all of the authorities cited; in fact, our attention has not been called to any authority holding to the contrary, nor have we been able to find any such after a careful search. So in the Ian
Clearly that was the sense in which the Constitution used the words “private ways of necessity,” and the Legislature had no power to reduce the necessity for the road or its vacation to one of mere convenience; and in the absence of any provision to the contrary, it seems to me that the framers of the Constitution must have intended that when the necessity for the private way ceased the legal right to the way itself ceased also. But be that as it may, I know that is the rule the text-writers lay down, and the courts of other states hold, regarding similar statutes.
The words “convenient and practical” used in the statute authorizing the vacation of a private road, were used in the same sense in which the words, “to connect with some public road ... at some convenient point” are used in the statute authorizing a private way to be opened; that is, a convenient point within the limits of the necessity provided for by the Constitution, and when that necessity ceased to exist likewise the right to the road ceased to exist.
•It has been suggested that there is a legal distinction between the words “the right to acquire a private way of necessity” as used in the Constitution, and the right to hold, and enjoy the way after it has been acquired under the statute. If that be true, then, in my opinion, the statute would clearly be unconstitutional and void, for the obvious reason that property cannot be acquired by condemnation for one purpose and then be held and used for another. There is a difference between a public and private use. [Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/belcher-sugar-refining-co-v-st-louis-grain-elevator-co-8007902?utm_source=webapp" opinion_id="8007902">82 Mo. 121, 101 Mo. 192" court="Mo." date_filed="1890-04-15" href="https://app.midpage.ai/document/belcher-sugar-refining-co-v-st-louis-grain-elevator-co-8009828?utm_source=webapp" opinion_id="8009828">101 Mo. 192; State ex rel. v. Dreyer, 229 Mo. 201" court="Mo." date_filed="1910-06-21" href="https://app.midpage.ai/document/state-ex-rel-roland-v-dreyer-8017260?utm_source=webapp" opinion_id="8017260">229 Mo. 201, l. c. 238.]
By analogy and parity of reasoning it must follow that a strip of ground cannot be acquired by grant or
I, therefore, dissent.