(dissenting in part).
I am of the opinion that the road or right of way in question has been abandoned as a public highway, not only by affirmative action taken by the Board of Commissioners of Highway District No. 2, but by acts and conduct of the Board of County Commissioners, successors in interest, showing an actual intent to abandon the highway.
I am further of the opinion that the abolition of the right of way or road, as a public road, does not destroy the special interest shown by the respondent to use the old road here in controversy as a means of ingress and egress to its irrigation works and diversion points.
By Sec. 40-501, I.C., the Board of Highway Commissioners had the right to abandon or abolish the road in question as being unnecessary.
If the road is a public right of way, it is the duty of the Board of County Commissioners to work and maintain it. Sec. 40r-501, I.C., Subd. 2. This at all times subsequent to 1944, after the abandoning order *521was passed, the Commissioners refused to do.
The action of the Board could not, in my opinion, extinguish the special interest that respondent had to the use and enjoyment of the road in question to reach its headgates and diversion points. In other words, the respondent had the right of an abutting owner, which arose from its ownership of property contiguous to the highway, which right did not belong to- the public generally. McQuigg v. Cullins, 56 Ohio St. 649, 47 N.E. 595; 39 C.J.S., Highways, § 129, p. 1064; Southern Ry. Co. v. Wages, 203 Ga. 502, 47 S.E.2d 501; Thomas v. Farrier, 179 Okl. 263, 65 P.2d 526; Siegenthaler v. Newton, 174 Okl. 216, 50 P.2d 192.
The only person or party shown to have any special interest, distinguishable from the public interest, in the road in question is respondent. From 1946 to 1949 respondent’s right was exercised by entrance to the property through a locked gate, to which respondent’s agents were given a key. This was the only use shown to be necessary. I therefore am of the opinion that the access to respondent’s property by it, or its agents, would be through this gate and see no reason why the gate should not be maintained thus allowing respondent access to its land.
I therefore think the judgment should be modified to allow the respondent the same access to its property as was exercised subsequent to 1945 and including 1949.