concurring in part; dissenting in part.
Although I concur with most of the majority opinion, I do not agree that defendants Meyer, whose property has direct access to a county road and lies along a portion of the way of necessity not taken from their property (from point A to point B on the attached map), may use the portion of the way of necessity that was not taken from their property for any purpose they see fit. The cases on which the majority relies neither require nor justify permitting the Meyers to use the portion (approximately one-half) of the way of necessity between the county road and plaintiffs’ property, which had been plaintiffs’ private driveway before the way of necessity was granted to defendants Sorensen, to move their farm machinery in, out and along their property.
Concededly, a statutory way of necessity may not be a private easement subject to the control of the property owner for whom it is established. Towns v. Klamath County, 33 Or 225, 53 P 604 (1898). In Aylett v. Mardis, 59 Or App 109, 650 P2d 165, rev den 294 Or 212 (1982), we made a thorough review of the statutory history of ways of necessity and concluded that the persons owning the property for which the way of necessity was granted could subdivide their land and retain access to all of the parcels thus created. Aylett disposes of plaintiffs’ claim against the Sorensens here. In other words, *94the' Sorensens were entitled to subdivide their property and sell it, and the purchasers were entitled to build homes on the lots and use the way of necessity to get to and from the county road. We expressly stated, however, that “[w]e need not decide whether this way can be used for any and all purposes.” Aylett v. Mardis, supra, 59 Or App at 116. That undecided question is the one presented here.
It is clear that former ORS 376.115(3) (repealed by Or Laws 1979, ch 862, § 3) authorized the county court to “declare the road or gateway to be a public road or a perpetual right of way.” It seems clear from that language that something less than a completely public road was permitted. It is equally clear that the county court here, in ordering the way of necessity, intended that it be a “perpetual right of way and referred to as a Gateway” and that it “shall not create a County Road or Public Useage [sic] Road.” So long as a way of necessity is open to any member of the public to travel from the county road to the property for which the way of necessity was granted, there is no constitutional question involving the taking of private property for a private purpose. In other words, the Sorensens, whose property line starts at point C on the map, could not restrict or control who travels from the county road, point A, to their property, point C. The Meyers may make that trip, not because they abut the way of necessity but because, as members of the public, they are entitled to go from the county road to the Sorensens’ property.
In further elaboration of what the county court had in mind, its order required the Sorensens to bear the total cost of construction of the gateway and its maintenance on the portion of the gateway taken from the Meyers’ property (from point B to point C); it further ordered that the Sorensens and the Schoenemans would share equally in the general maintenance of the portion of the gateway on the property owned by the Schoenemans (from point A to point B). It seems apparent that the county court did not anticipate that the Meyers have use of the gateway or bear any of the costs of construction or maintenance.
The Meyers had no basis for claiming a way of necessity, because their property fronted on the county road. Because neither the statutes nor any of the decided cases require the conclusion that the Meyers are entitled to use the *95portion of the way of necessity from point A to point B for any and all purposes and, because the county court’s order clearly indicates that the Meyers were not entitled to use that portion of it, I would hold that they do not have the right to do so under the way of necessity as granted. They may, however, insofar as plaintiffs are concerned, use the portion of the way taken from their property, from point B to point C.
Therefore, I would reverse the part of the judgment in favor of defendants Meyer and remand for further proceedings.
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