ON MOTION FOR REHEARING. In appellant's motion for rehearing it is asserted that, "the decision in this cause in so far as it affects the rights of respondent, A.H. Holkenbrink, to a way out from his land to a public *Page 1065 highway is in conflict with the Constitution of the State of Missouri and in conflict with an express statute, to-wit, Section 20 of Article II of the Constitution of Missouri, and Section 7842, Revised Statutes Mo. 1929."
Holkenbrink had no interest in the land at the time this proceeding was instituted and did not acquire any interest until after the appeal was taken from the judgment of the county court. The commissioners, appointed by the county court to lay out the road, had performed their task long before Holkenbrink became interested in the land. The question was determined here as the interest of the parties existed at the time of the trial in the county court. The Seitz Packing Company had no right to condemn the narrow strip of land lying to the south of its plant. We so held in the original opinion and on further research we found the case of Kentucky Distilleries Warehouse Co. v. Warwick Co. (Ky.), 179 S.W. 611, directly in point. The facts were similar and the Kentucky Supreme Court reached the same result as we did.
The Seitz Packing Company's rights could not be strengthened or enlarged by transfer of a part of the land to a third person after the case had been tried in the county court. Holkenbrink's rights were not adjudicated in this case. If he does not have access to his building he may institute proceedings in the county court to establish a way of necessity. If this way is sought over the property of the Quaker Oats Company that company may or may not have a defense. The commission to be appointed by the county court may grant Holkenbrink a right-of-way at another point more suitable to the convenience of Holkenbrink and that of the Quaker Oats Company. The Seitz Packing Company may also be interested in such a proceeding. In 19 Corpus Juris 927, section 124, we read:
"If the land is partly surrounded by that of the grantor and partly by that of strangers, a right of way over the remaining land of the grantor exists by necessity."
The motion for rehearing is therefore overruled. Cooley andBohling, CC., concur.